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Cherney Turns On the Charm (May 8, 2002)

Ordered by Judge Wilken to wrap up their case by today — Wednesday — attorneys for Darryl Cherney and the estate of Judi Bari spent the last week zipping though the final five defendants and the testimony of the two Earth First! activists. The civil case, brought by Bari and Cherney against three Oakland police officers and six agents of the FBI, had been lagging behind schedule almost since it began early last month. Judge Claudia Wilken finally put her foot down, saying that the plaintiffs would stop calling witnesses today whether they had finished their case or not.

With the Bari team pressed for time, last week saw little of the courtroom drama that characterized the proceedings of the week previous. In the most surprising development, Wilken consented to a motion put forward by Oakland city attorney Maria Bee to allow testimony about several foot-long sections of rebar, sharpened to a point at one end, that were found by the Oakland police in Cherney’s van on the day of the bombing. 

Bee wanted to show that the rebar, which was alternately described as a “road-spiking kit” and “tree spikes,” contributed to the Oakland Police Department's decision to arrest Bari and Cherney. Wilken had originally barred all mention of the road-spiking kit, but changed her mind after the Bari-Cherney attorneys repeatedly asked the police why they had not known that Bari and Cherney had renounced all forms of industrial sabotage — that they were, in attorney Robert Bloom’s oft-repeated phrase, “people of peace.” Wilken found it only fair that the police be allowed to rebut the people of peace refrain.

Cherney explained the sharpened lengths of rebar as having been given to him by a mysterious stranger.

"As I was travelling through Humboldt County," Cherney testified, "I met a person who I'd never seen before or since, and he told me that they were used for flattening truck tires. He asked me if I wanted them. I said OK. I thought here's  some short pieces of rebar; I could probably use them for something like staking down the tarps over my woodpile at home, or in my garden, or as paperweights. I put them in my van and forgot about it."

The plaintiffs also indicated last week that they would drop one of their charges against the defendants, that of false arrest as it is defined by California state law. Dennis Cunningham, the Bari team’s lead attorney, told Wilken that the instructions on false arrest law that would be given to the jury were too complex, and might distract jurors from their deliberations on other, larger, issues. 

The remaining charges against the nine defendants are violation of Bari’s and Cherney’s First Amendment and Fourth Amendment rights, and conspiracy by the named Oakland policemen and the named FBI agents to commit those violations. The plaintiffs hold that the defendants conducted a “smear campaign” against their activism by charging them with knowingly transporting the bomb (1st Amendment) and obtaining a search warrant for their properties by providing false information to a judge (4th Amendment). Any of the defendants found to have participated in a “conspiracy” between the FBI and OPD will be held liable for his co-conspirators’ misdeeds.

The court heard from Lt. Mike Sims of the OPD and Special Agents Walt Hemje, John Reikes, Stockton Buck, and John Conway of the FBI. None of these witnesses added much to the sum of known facts about the bombing or the arrest. Sims’ testimony paralleled that already given by his two detectives, Sgts. Mike Sitterud and Robert Chenault, who testified during the first two weeks of the trial. The only new information Sims was able to provide — thanks to the introduction of Cherney’s spikes — was the charge of “possession of a booby-trap device” on Bari’s and Cherney’s arrest sheets.

The FBI agents named above had relatively little to do with the events of May 24, 1990, the day of the bombing. They are named as defendants in the case because they handled much of the investigation of the incident in the months that followed. Hemje, who had an office in Santa Rosa, was nominally in charge of the FBI investigation throughout the summer of 1990. Reikes was his superior, the agent in charge of “Squad 13,” the counterterrorism squad based out of the FBI’s San Francisco bureau. Buck gathered and catalogued the evidence from the scene of the bombing, and he later volunteered to do some investigative footwork on the North Coast. Conway, who was based in San Rafael, gathered names of Earth First! activists who were arrested while attempting to hang a banner from the Golden Gate Bridge, and he later ran a “phone sweep” — an analysis of calls to and from given phones — on the Golden Gate protesters, reportedly in an attempt to find new leads in the bombing case.

The FBI agents are accused of continuing the “smear campaign” weeks after the event by focusing their investigation on environmental activists and other associates of Bari and Cherney. Reikes and Buck were at the scene of the bombing, but their testimony showed them to be much less active than their colleagues Frank Doyle and Phil Sena. Doyle was the bomb squad expert who came to the quick conclusion that the bomb was placed behind, rather than beneath, Bari’s seat. Sena came to the Bari bombing directly from an investigation of an eco-sabotage incident in Santa Cruz, and he interviewed Cherney in Highland Hospital.

Cunningham’s questioning of Buck early in the week focused on Buck's trip to Mendocino and Humboldt counties in August 1990 with fellow agent Stewart Daley (who is not a defendant in the case). The purpose of the trip was to follow up on the Lord’s Avenger letter, the author of which took credit for the bombing. The two visited North Coast newspapers and law enforcement agencies, where they tried to find typewritten samples that matched the Lord’s Avenger letter in style or substance. They also visited Bill Staley, the Potter Valley fundamentalist and a former All-Pro defensive end with the Chicago Bears. Staley's well-known animosity toward Bari and his rabid anti-abortion politics (which matched those professed by the Lord’s Avenger) made him a suspect.

After meeting with Staley, Buck decided that he was not likely to have been responsible for the bomb. Cunningham, who must know by now that Staley turned out to be an extremely unlikely suspect, nevertheless pressed Buck about Buck's reasons for discounting Staley. Buck testified that Staley ceased to be a suspect in Buck's mind when Staley offered to take a polygraph test to clear himself.

Cunningham also put a similar series of questions to Hemje, to whom Buck was reporting at the time. Hemje — whose testimony was delivered by videotape because Hemje is ill — said that an analysis of the Lord’s Avenger letter by the FBI’s Behavioral Sciences laboratory in Quantico, Virginia, broke the letter down into two parts: its religious, anti-abortion rhetoric, and its knowledge of the car bomb and a similar device left at a Louisiana-Pacific mill in Cloverdale a few weeks earlier. The lab concluded that the bomb knowledge was correct, but the rhetoric was a ruse. Therefore, Hemje said, anti-abortion activists were not considered a serious target of the investigation.

Instead, as Hemje freely admitted, the investigation focused on Bari and Cherney’s colleagues. “The hypothesis was that the Lord’s Avenger letter came from people in league with Judi and Darryl,” he said. 

Buck was never so blunt in his testimony, but his ideas of the case were the same as Hemje's. Another major part of Buck's testimony concerned his visit to the offices of the Humboldt County Sheriff’s Department. Cunningham introduced a report that Buck filed after returning from the trip. In it, Buck said that the Humboldt County police had given him a list of people that comprised “a core group of people capable of violence.” Among the names on the list were Earth First! activist Greg King; a Fort Bragg teenager named Lisa Henry, the daughter of then-Mendocino County supervisor, Liz Henry; and Humboldt State University professor Bill Devall, the man who invented the scientifically unfounded theory called, "Deep Ecology."

“What was the purpose of writing down their names?” Cunningham asked Buck. “My thought was that at the end of the day, when all the interviews were looked over, some of these names might sift out,” Buck replied. “They might then become a focus of the investigation.”

The day after Buck’s testimony, Cunningham called Gary Philp, Humboldt County’s Sheriff-elect. Back in 1990, Philp was a deputy sheriff charged with maintaining relations with the environmental community. He testified that his dealings with Earth First were mostly cordial, and that he didn’t think the people he talked about with Daley and Buck had violent natures. But he could not speak for other members of the Sheriff’s Department. 

“Did you tell him that the people in that group were a ‘core group capable of violence’?” Cunningham asked. “My recollection is that I gave him the names of some people I was aware of, and I directed them to my investigator to discuss things further,” Philp said. 

Buck denied that, in Cunningham’s words, the names “became a basis for the continuing investigation of Earth First!” But the names did surface later, Hemje testified, when the Bureau conducted a “phone sweep” of Buck’s “core group” of individuals that Conway had discovered were arrested at the Golden Gate Bridge demonstration. The “phone sweep” involved tracking down the people who made calls to or received calls from people in both groups. “My intent was to find a social network around these people — the core group,” he said.

Another connection between the core group and the bomb, he said, was that investigators had come across a letter sent to a state senator. He said that the handwriting on the letter, which was authored by either a member of the “core group” or the Golden Gate Bridge arrestees, looked roughly like the distinctive lettering on a sign reading “L-P Screws Millworkers” that was left with the Cloverdale bomb. The two samples were sent to a handwriting expert, though, and the lead was dropped.

Throughout the week, the plaintiffs’ attorneys also explored another angle. They said that the FBI must not have been very interested in finding the true bomber because they never adequately followed up on the death threats Bari had received. What’s more, they said, the FBI backed out of a deal that Susan Jordan, then Bari’s attorney, had worked out. Bari would agree to sit down and talk with Hemje if the Bureau offered her an immunity deal. The FBI would agree not to use anything she said during the interview against her in court.

Hemje said that he eventually scuttled the deal because he was not accustomed to blameless parties requesting an immunity deal. “It wouldn’t have been necessary if she were a victim and cooperating with the investigation,” he said. 

The plaintiffs called Jordan herself on Monday. She said that she had made a point of going to the FBI and asking them to investigate the case. She said that she was "incredibly disappointed" when she learned that the FBI had not agreed to the immunity deal — which she said was a natural cautionary measure, given that her client had already been accused by the OPD of transporting the bomb. “I thought we were in a cooperative venture with them,” Jordan said. “I thought we were working together.”

The testimony of the other defendant who took the stand last week, Lt. Sims of the Oakland Police Department, mostly covered old ground. Like his detectives, Sitterud and Chenault, Sims said that he got his information about the placement of the bomb in the car from Doyle. Like Sitterud and Chenault, he said that he didn’t know anything about Earth First! until the FBI briefed them about the organization.

Thanks to Bee, though, Sims was able to clear up one matter that had been puzzling spectators — and apparently the plaintiffs, too. The arrest records of both Bari and Cherney both listed the California Penal Code section called “Possession of a Booby-Trap Device” in addition to “Possession of an Explosive Device.” On Bari’s sheet, the booby-trap section was crossed off. When they were confronted with the arrest records, Sitterud and Chenault scratched their heads. They said they had no idea why the two were charged under the booby-trap code. 

The plaintiffs had taken the charge to mean that the cops had known from the beginning that the bomb was activated by a motion-sensitive trigger. Therefore, plaintiffs’ attorneys said, the Oakland Police Department must have known that Bari and Cherney were the bomb’s intended targets. The attorneys had placed the relevant section of the code up on the overhead projector: a booby-trap, it said, was “any concealed or camouflaged device designed to cause great bodily injury… including… explosive devices attached to trip wires or other triggering mechanisms.” The cops seemed stumped. Sitterud figured that the Penal Code number must have been written there by accident. It didn’t look good to the jury.

But when Wilken allowed Bee to mention the spikes found in Cherney’s van, the mysterious entry was also explained. With Sims on the stand, the formidable Ms. Bee asked him if, during the course of the day, he had become aware of any evidence found in Cherney’s van that contributed to his decision to make an arrest. Sims was cautious. Yes, he said, there was, but he didn’t know if he could talk about it. Bee told him to go ahead, and Sims said sharpened lengths of rebar had been recovered from Cherney's van.

Bee then put the booby-trap code back up on the overhead, and asked Sims to read it in full. “Boobytraps may include, but are not limited to, guns, ammunition, or explosive devices attached to trip wires or other triggering mechanisms, sharpened stakes, and lines or wire with hooks attached.” 

Sharpened stakes — it was as if the clouds had parted and the sun had shone through. Someone had written the code section on Bari’s arrest sheet and later scratched it out because the spikes were determined to be Cherney’s property alone.

Sims did have one more interesting piece of information. Before the Oakland Police Department and the FBI flew up to Ukiah to search Bari’s house the day after the bombing, he said, they arranged for Mendocino County deputy sheriff Steve Satterwhite to stake out Bari's Redwood Valley premises, the property Bari shared with her former husband, Mike Sweeney. Sims said, “A deputy who was watching Ms. Bari’s house had seen her ex-husband removing a box from the premises before we got there.” 

Darryl Cherney, energized by an audience mostly beguiled by him, began testifying Monday. Cherney often joked on the stand as Dennis Cunningham played Abbott to Cherney's Costello.

When the Oakland police were interviewing Cherney after they’d taken him from Highland Hospital to the police station late the afternoon of the bombing, Cherney testified, “The first thing I said [in the police station] was I wanted to see a lawyer. They told me that if I got to see a lawyer they would definitely throw me in jail. If I talked to them without a lawyer I could probably walk out of there that night.” Cherney then signed a statement saying that he understood his Miranda rights, writing at the bottom of the sheet, "“I really want to help you, you butt in.” 

"I recall," Cherney said, "one of the officers saying to me, ‘You know, you just don’t fit the profile of a bomber’.” 

Cherney, his voice beginning to waver with emotion at the recollection, said the police asked him about himself and his friends, but then, recovering himself, Cherney remembered that he asked them, “'Would you please ask me about the death threats? Can we please get out of this room and go look for the bomber?” 

Supporters bailed Cherney out long before they bailed Judi Bari out custody in the prison ward of Highland Hospital because, Cherney explained, Bari seemed to be safer in the security provided her by the Oakland Police Department even though she was technically under arrest. “We thought it best to keep Judi’s bail in place to keep someone from trying to kill her again,”  he said.

Cunningham asked Cherney about the effects of the arrest on him. “I remember being in a store [in Humboldt or Mendocino county]. Someone from the timber industry walked in and said, ‘Boom!’ to me. People made fun of me. People came up and threatened me to my face.” 

The Justice Department's attorney, Joe Sher, wasn't amused by Cherney who greeted Sher with a jaunty, “So, we meet again?”  as Sher began his cross-examination.

Sher started out on the subject of monkeywrenching. “Do you still believe, as you told the LA Times, that ‘monkeywrenching is the teeth that makes [your] activism work’?” 

Cherney replied, “I don’t recall making that remark.” 

Sher: “Does it reflect your view?”

Cherney: “Yes.” 

Cherney added that monkey wrenching was “not just property sabotage.” He went on to define monkey wrenching as "stopping something in its tracks," and that it could include civil disobedience, or other forms of non-violent protest.

Sher produced the famous Earth Night Action Poster. 

Sher: “That’s a poster you created in April 1990?”

Cherney: Yes. 

Sher: Where did you get the picture used in the center?

Cherney: From Dave Foreman’s book, "EcoDefense." 

Sher: That was a book you were selling at the time, wasn’t it?

Cherney: I was taking donations for it. 

Sher asked about Earth First! rendezvous, regional and national at which workshops in the techniques of industrial sabotage were taught. He asked Cherney if he attended a monkeywrenching workshop at The Round River Rendezvous in 1988, and about a 1989 “Regional Rendezvous” that Cherney helped organize where there apparently were also monkey wrenching workshops. 

Sher: Your decision to renounce tree-spiking was controversial within Earth First, wasn’t it? 

Cherney: Yes. 

Sher: And you described it as a ‘radical change’ from your previous policy, did you not? 

Cherney: I don’t recall describing it as such. 

Sher refreshed Cherney’s memory with a memo that was written to other Earth First! chapters at the time, demonstrating that Cherney had indeed did describe the renunciation as a 'radical change.'

Sher: You also said the decision was “not irrevocable”?

Cherney: I did say that, or write it here. 

Sher: You also said that you would not condemn tree-spiking, did you not?

Cherney: That’s part of that sentence. 

Sher: This memo also says ‘equipment sabotage is a time honored tradition among industrial workers.’

Cherney: It does say that, yes. 

Maria Bee also cross-examined Cherney. 

Referring to Cherney’s appearance on “60 Minutes” twelve years ago when Cherney said he was so committed to saving ancient redwoods that if he was dying of a terminal disease he’d strap some dynamite on his body and take out the Glen Canyon dam or the offices of Maxxam Corporation, adding that if he attacked an office with explosives he'd do it at night after everybody had left the building.

Bee implausibly linked these inflammatory remarks to the failed Forests Forever Initiative of 1990. Cherney answered that his 60 Minutes statements were used by the timber industry to harm the initiative. 

Bee: You said that the timber people made those statements public? 

Cherney: Yes. 

Bee: The fact that the timber industry publicized it hurt the Forests Forever initiative — fair? 

Cherney: I’m not a pollster, but it seems reasonable. 

Bee: You take responsibility for making those statements, don’t you?

Cherney: Yes. 

Bee: So you’re responsible for the downfall of Forests Forever, aren’t you? 

Cherney: I never thought of it that way, conceding with typical inflation of his influence that his comments on television "may have had some effect" on the election results.  

Cherney, with Cunningham asking him questions on re-direct examination,   topped off his testimony with a brief rendition of a song from one of his pre-bomb albums called, "Spike A Tree For Jesus." Justice Department attorney Sher had gotten Cherney to say that Cherney had indeed written several songs advocating illegal activity, including other tunes called "The Ballad of the Lonely Tree-Spiker" and "This Monkeywrench of Mine."  Cunningham asked Cherney to sing a song from one of the albums. Cherney, pressed by Sher to select a song already in evidence, chose "Spike A Tree For Jesus."

Judge Wilken allowed Cherney to accompany himself on the stand with his guitar, and Cherney belted out "Spike a tree for Jesus, spike a tree for Jesus, spike a tree for Jesus, and some day to heaven you will go."

Cherney explained that the song derived from his apparent opinion that "loggers killed Jesus" because they'd cut down the tree from which Jesus's cross was made. 

It was an odd moment, with Joe Sher, U.S. Attorney, shouting out pertinent song titles as if he were at a Golden Oldies reunion, as Cherney, on the witness stand, commenced singing the one song most likely to offend the most people on the jury. Of course the large Bari-Cherney audience was delighted at Cherney's performance but few members of the jury seemed amused.

Cunningham ended his client's bizarre testimony without asking so much as a single question of Cherney that might soften whatever impact the song may have had on the jury. 

The afternoon ended with a few minutes from Judi Bari's video-taped deposition recorded shortly before she died in 1997. The Bari tape will resume Wednesday morning, and then the government and the City of Oakland will present their defense of the roles several FBI agents and several Oakland policemen in the 1990 event.

Next week: the Defense’s Case.

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