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The Feds’ Lackluster Defense (May 15, 2002)

Courtroom observers who expected a vigorous counterattack from the federal government and the city of Oakland were mostly disappointed last week, as assistant US Attorney R. Joseph Sher and Oakland assistant city attorney Maria Bee called a series of bland witnesses that reinforced the familiar themes of their case. They didn’t dazzle the courtroom before resting their case on Tuesday — instead, they spent the week pushing slowly but steadily toward the finish.

Sher, who represents the six accused FBI agents that Darryl Cherney and the estate of Judi Bari charge with infringement of their constitutional rights, spent nearly all of his time buttressing one particular notion: that the pipe bomb that went off in Bari’s car in Oakland on May 24, 1990, could have been located behind her seat, where it presumably would have been visible, rather than underneath it. It was Sher’s client, FBI bomb technician Frank Doyle, who first made that call at the scene of the crime. 

Despite their lackluster case, it appears the defense is fairly certain that the jury will return a favorable verdict as early as the end of this week. Much of their case was presented during the plaintiffs’ time, with the cross examination of their clients and of Cherney. Most of their clients acquitted themselves well at this time. The one glaring exception was Doyle, who came off as haughty and arrogant, and whose pronouncements concerning the placement of the bomb remain at odds with the apparent facts. 

And the plaintiffs, though they remain confident in public statements, are also anticipating a judgment for the defense. Last week they filed a motion with Judge Claudia Wilken to allow them to introduce evidence concerning the FBI’s conduct against the Black Panthers in the 1960’s — the so-called COINTELPRO operation. Wilken is certain to deny the motion, and when she does so it will become the plaintiffs’ grounds for appeal. 

Before the defense began its case, though, the plaintiffs had one last witness to call. Last Wednesday, jurors watched a videotaped deposition of Bari that was filmed weeks before her death in 1997. In the deposition, Bari told of the hardships she had suffered following her arrest. 

“I learned through this experience that fear is a physical problem, not just a mental problem,” she said. “I felt like there was a hole in my stomach, I was so scared.” Bari said that at the time she was facing the prospect of living the rest of her life in a wheelchair. “The thought of doing that in prison was very frightening.” 

The two searches of her home by the OPD and the FBI had a devastating psychological impact on her kids, Bari said. “My children were upset that their rooms had been dismantled and their toys taken away,” she said of the first search.” Bari’s ex-husband, Mike Sweeney, and his girlfriend moved into Bari’s home afterwards to give the children some stability, Bari said. Then the house was searched a second time: “For the house to be re-searched just when they were beginning to feel a little secure again was very hard.” 

Bari said that she “reluctantly returned to public life” to defend herself against the charges that she and Cherney were knowingly transporting the bomb. She gave interviews to the media, she said, and she began to lead her own investigation into the bombing. “People around me put together our own investigating teams,” she said. “There were regular meetings — not with investigators, just regular people who tried to help us.” 

Dennis Cunningham, the Bari team’s lead attorney, asked her about a letter offering to snitch on Bari that was sent to the Ukiah police. The FBI says that it never became aware of letter, which was signed by someone who called himself “Argus,” until journalist Steve Talbot brought it to their attention a year later. Bari maintained that the FBI’s non-investigation into the “Argus letter” which was accompanied by the so-called “Uzi photos,” was further proof of their lack of interest in solving the case. 

Cunningham: Do you have any suspicions about who wrote that letter and sent that picture to the Ukiah Police? 

Bari: I believe it was Irv Sutley. The information contained in the letter is all information he would know from a certain weekend he spent up here. 

Sutley had snapped photos of Bari and Cherney holding one of his automatic weapons, allegedly for use on the duo’s next album cover. “He placed it in my hands and actually lowered it before he took the picture — I believe, now, so the Earth First symbol [on her t-shirt] would be visible.” 

Bari said her arrest was “an act of political sabotage aimed at Redwood Summer as much as it was aimed at me and Darryl.” “The attempt to portray Earth First as terrorists,” she said. “The attempt to associate us with bombs so that people would fear us. The attempt to undermine our non-violent work. All appeared to me as efforts to try to neutralize us as a political group.” 

The first two witnesses to be called by the defense were two of the first people to arrive at the scene of the bombing — Alner Brewer, a patrol officer for the Oakland Police Department, and Patrice Skipp-Sevier, the first paramedic to treat Cherney. 

Brewer, the first law enforcement official of any kind to respond to the bombing, was called to provide support for the defense’s contention that shortly after the bombing, Cherney told a paramedic that “someone threw a bomb in the car.” All three Oakland defendants — Sgt. Mike Sitterud, Sgt. Robert Chenault, and Lt. Mike Sims — testified that the statement was illogical, and therefore made it seem as if Cherney had something to hide. The plaintiffs have denied that he ever said anything of the sort — just “it’s a bomb.” 

Though he wasn’t the ambulance driver that the defendants claim to have got their information from, Brewer said that he heard Cherney say the same thing when he was still sitting in the bombed-out Subaru. Brewer said that he was patrolling in the neighborhood of Park Boulevard when he saw a plume of blue smoke rising near the corner of Park and Macarthur. He said he drove to the scene, parked his car, and walked up to assess the condition of the occupants of the vehicle. 

He asked Bari and Cherney if they were injured. Suddenly — out of nowhere, he said — Bari told him, “Someone put a bomb in the car.” Whereupon Cherney turned to him and said “Someone threw a bomb at the car.” Brewer said the statements struck him as odd, because he hadn’t asked them what had happened, just whether they were hurt. 

Bob Bloom, co-counsel for the plaintiffs, tried to call Brewer’s memory into question by pointing out differences in the report he wrote that day and a deposition he gave several years later. Bloom’s main attempt to impeach the witness centered on Cherney’s use of a possessive pronoun — in the report, Brewer wrote that Cherney said “They threw a bomb in my car”; in the deposition, he quoted Cherney as saying “They threw a bomb in our car.” 

The difference was minuscule, and it’s hard to imagine the jury that would write off all Brewer’s testimony because of it. Skipp-Sevier’s testimony regarding Cherney’s behavior at the scene of the bombing was congruent. She said though he was concerned about Bari’s injuries, Cherney was mostly preoccupied with explaining the nature of their political work. 

“He was very verbal, very loud — almost preaching,” she said. “He discussed a lot of really repetitive stuff about Earth First, and that the FBI had been following him.” Skipp-Sevier added that Cherney gave her a specific theory about the then minutes-old bombing: “He said that something happened with tree spikes, that something happened and they were blaming Earth First.” 

Like Brewer, and like the defendants in the case, Skipp-Sevier said that she was surprised that Cherney had volunteered so much information concerning his politics and his political enemies. She testified that she had been called to any number of trauma-inducing events — gas explosions, the ’89 Earthquake — and that it was rare for an injured person to talk about anything but his injuries. She said that it was “odd.” 

The plaintiffs have challenged this by arguing that not many of the trauma patients Skipp-Sevier and others had treated had lately received death threats — as Bari and Cherney had — and not many had been injured by a bomb, which may have different effects on the psyche than an earthquake. Bloom brought this up in Skipp-Sevier’s cross examination, but she held fast. So Bloom switched to an attempt to impeach the witness by playing videotape of her treating Cherney at the scene. 

The minute-long video showed Skipp-Sevier removing Cherney from the car, coaxing him onto a stretcher, and carrying him to an ambulance. Bloom asked Skipp-Sevier to reconsider her testimony about Cherney’s conversation. 

Bloom: Is it fair to say that from what you saw on the video, he wasn’t talking much? 

Sevier: I saw his mouth move a couple of times. 

Bloom: You did? Let’s play it again. 

Wilken, whose antipathy toward the unctuous Bloom and his grew throughout the week until it boiled over during his cross examination of ATF agent James Flanigan, told him that it would not be necessary to replay the video. Bloom asked Skipp-Sevier about Cherney’s mannerism as manifested on the tape. 

Bloom: What you saw from the video, was that acting odd? 

Sevier: I wouldn’t consider that odd for someone laying on a board, no. 

The defense also called two federal agents — Special Agent Tim McKinley of the FBI and Special Agent James Flanigan of the Bureau of Alcohol, Tobacco and Firearms — who got to the scene shortly after Brewer and Skipp-Sevier. 

McKinley, who at the time was assigned to the FBI’s Oakland office, told the court that he was on his lunch break, driving down a highway near downtown Oakland, when he heard about an explosion at the corner of Park and Macarthur over an AM radio station. He said that he decided to dispatch himself to the scene, because he was working on a case concerning a member of the Hell’s Angels who lived in that neighborhood. The Hell’s Angel in question had recently said some “unwise” things on a television program, and McKinley though that the bomb might have had something to do with him. 

He found that it didn’t, of course, but he stuck around a while to help secure the scene of the crime. He also testified that he had been in contact with his superior in Oakland, who gave him a bit of information he passed on to the OPD officers at the site: “An informant had said that some people associated with Earth First were going to be traveling to Santa Cruz for something big,” he testified. This was the so-called “heavy hitters” tip, which previous FBI defendants had testified was only known by SA Phil Sena, who had received the tip, and his supervisor, SA John Reikes. 

J. Tony Serra, another co-counsel for the plaintiffs, made remarkably little of this during his cross examination of McKinley. Instead, he focused on smaller matters that he thought would impeach the witness, such as how McKinley remembered what time he heard the news report on the bombing. 

Serra: How did you know it was 12:10? 

McKinley: I looked at my watch. 

Serra: The car didn’t have a clock? 

McKinley: It might have, but I looked at my watch. 

Serra: Why did you look at your watch? 

McKinley: That’s how I’m in the habit of ascertaining the time. 

Flanigan said that he was about to go to lunch with Sgt. Myron Hanson and Sgt. Del Kraft of the OPD Bomb Squad when they received word of the bombing. Flanigan, who had undergone training in explosives, tagged along to the scene with Hanson and Kraft. When Flanigan arrived, Doyle and the other FBI bomb people had not arrived, so he had the most bomb case seniority of anyone there. 

Flanigan said that he was the first officer to speculate that the bomb had been behind the seat. “I told [the OPD] that based on what I saw at the time, it would have been reasonable to assume that they knew the device was there,” he said. He said that his opinion was based primarily on the damage done to a guitar case that had been sitting behind Bari in the car. He speculated that the case had been sitting on top of the bomb. 

Bloom again took charge of the cross examination, and he pounced on Flanigan’s characterization of the (relatively minor) damage done to the guitar case. 

Bloom: Would you say the guitar case had been shattered? 

Flanigan: Shattered. 

Bloom: Entirely shattered? Partially shattered? 

Flanigan: Partially shattered. 

Bloom: Could you still recognize it as a guitar case? 

Flanigan: Yes. 

Bloom probably would have been best to leave it there. The plaintiffs, by this time, had gone far over the amount of time that Wilken had allotted them for their case. Up to this point, they had been in the habit of conducting cross examinations that were twice as long as Sher or Bee’s direct examination, and she had warned them on the point. Nevertheless, Bloom forged on to areas that Sher had not brought up during his direct, and Wilken was forced to intervene. 

Bloom began by asking Flanigan if he had talked with SA Sena at the scene of the bombing. 

Sher: Objection, your honor. Beyond the scope [of the direct examination.] 

Wilken: Sustained. 

Bloom: May I make him my witness, Judge? 

Wilken: No. 

Bloom, undaunted as ever, went on to ask Flanigan if he had attended a 7:45 p.m. briefing between FBI agents and the OPD at Oakland Police headquarters. 

Sher: Same objection, your honor. 

Wilken: Sustained. 

Bloom: May I make him my witness? 

Wilken: Mr. Bloom, if it’s beyond the scope, do not ask the question, and do not ask if you’ll be allowed to make him your witness. 

These exchanges were notable for their lack of emotion. Previously, when Wilken had to reign in one of the Bari team’s lawyers, her eyes would light up with anger and her voice would sharpen. In these exchanges, her affect was flat. Bloom knew that Wilken would not allow him to “make [Flanigan] his witness” — and therefore to ask him whatever questions he liked — because his side’s clock had already run out. Bloom was simply making the comments for the record, so that he would be able to argue to the Court of Appeals that she had not allowed him to present his case. 

Coming as it did from another trained bomb technician, Flanigan’s testimony helped the defense show that Doyle’s assertions that the bomb was in the back seat were reasonable. But the defense also called two “expert” witnesses who testified that not only was Doyle’s assumption reasonable, it was correct. 

Paul Price, a structural engineer in the employ of the Defense Department, and Dr. Alberto Bolanos, an orthopedic surgeon, each used his field of expertise to make that claim. Neither was very effective, but they must have made the jurors doubt, to some extent, the plaintiffs’ seemingly solid case that the bomb was underneath Bari when it blew. 

Sher had Price recount his long resume as an explosives expert. This proved to be something of a mistake, as Price’s relentless monotone drove the jury and the audience first to giddy distraction, and then to sleep. “You had to do certain explosive protocols for United Nations regulations,” Price droned about his days as a US delegate to a NATO explosives panel, “so we would do these tests and report back to determine the level of energetic material used…” 

Sher snuck a quick peek at the jury, realized what was happening, and quickly jumped in to correct it. “Energetic material!” he said. “Tell the ladies and gentlemen of the jury what that means, in layman’s terms.” Saying this, Sher turned back to catch the jurors’ eyes, his face all a-grin. 

Price, who conducted his review of the case entirely through photos sent to him by Sher, ended up testifying that the bomb was certainly behind the seat, that “no other conclusion was possible.” He pointed to one photo, which showed nails that had been strapped to the bomb for shrapnel effect stuck in what looked like the back of the driver’s seat. How could the nails ended up poking out of the back of the seat, he wondered, if the bomb had been underneath? 

Cunningham didn’t have too difficult a time rebutting that. He showed Price several photos of Bari being removed from the car. In the photos, and ones taken immediately after, it’s clear that the seat, which had been partially unmoored by the blast, had been tipped forward. Could Price say for certain that the photos of the nails, which were taken in extreme close-up, were of the seat in its normal position? And if it were tipped forward, wouldn’t the nails in fact be protruding from the bottom of the seat, rather than the rear? Price allowed that he couldn’t say with any certainty, but he clung to his position nevertheless. 

Dr. Bolanos arrived at the same conclusion as Price through careful study of Bari’s medical records. He said that the majority of injuries were to the upper part of her body, which would have been consistent with the force of the explosion coming at her from behind. If the bomb were under her seat, he said, there would have been much more damage to her legs and thighs. 

Bolanos was in many ways Price’s polar opposite: he was young, handsome, and well-spoken. But his assessment was undermined during Bloom’s cross examination, during which it was determined that he had never done this sort of forensic work before and that the government had paid him $500 per hour for his services. 

While the defendants chipped away at the edges of the case, the plaintiffs began laying the foundation for an appeal. The basis they’re preparing should come as no surprise — they charge that the deck was stacked against them when Wilken ruled that an all-purpose indictment of the FBI would not be allowed during the trial. But the new scope of their allegations against the bureau, and their new rationale for why they believe such allegations should be permitted, are truly astounding. 

Last week, the plaintiffs filed a 50-page “Offer of Proof Regarding FBI Misconduct.” The offer of proof contains all the issues that plaintiffs have wanted to introduce in the past — Howard Zinn’s “expert” testimony, COINTELPRO targeting of Black Panthers — but it adds a number of new and colorful subjects to the list. 

They charge, for instance, that the FBI hid information regarding the death of Clinton friend Vince Foster — surely the first time the Bari team has copped information from ultra-right-winger Richard Mellon Scaife. Immediately afterwards, they charge that TWA Flight 800, which crashed off Long Island in 1996, was brought down by a U.S. military missile. This latter tale has been heard before, but it wasn’t apparent what it was doing in the Offer of Proof; the Bari team made no effort whatsoever to link the alleged incident to the FBI. 

Why should these things be admitted now? Because, they say, Oakland assistant city attorney Maria Bee asked her clients one simple question when they were on the stand. Did they have any reason not to trust what various FBI agents told them during the course of their criminal investigation? The answer in each case — about Doyle’s determination that the bomb was behind the seat, about David Williams’ “match” of nails from the bomb to ones found at Bari’s house — was no. 

“The fact is that any informed reasonable person would never speak to FBI agents at any time, for any reason,” wrote Bloom in an earlier motion. The bombastic attorney apparently extends this notion to members of other law enforcement agencies. “Guilt by association,” which the plaintiffs have always argued should never have been applied to Bari and Cherney as regards their affiliation with Earth First, appears to them perfectly valid when the accused are agents of the FBI. 

Standing in the way of all this is a simple matter that Wilken informed the plaintiffs of at the time — the “fellow officer rule,” which states that law enforcement officials may rely on the knowledge and testimony of their peers when making decisions. Bee, in questioning her clients, was only trying to make the implications of this rule plain to the jury. 

It is extremely doubtful, then, that the argument is going to get the plaintiffs anywhere with the 9th Circuit Court of Appeals, let alone the United States Supreme Court. However, it will certainly live forever of the Bari Team’s web site, where future generations will doubtless read and revere it. As if to underscore this purpose, it concludes with a shout-out to the humble paralegals who helped make it happen: “Plaintiffs gratefully acknowledge the invaluable assistance of Heidi Terbrack, Carol Dorchin, and Alicia Littletree in preparation of this Offer of Proof.” 

Next week: Closing arguments, and (probably) the verdict.

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