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The Verdict (June 12, 2002)

With Judi Bari’s ashes resting in the center of her attorneys’ table, a federal jury yesterday delivered her a stunning victory in her case against the FBI and the Oakland Police Department. Bari’s estate was awarded $2.9 million for violation of her First and Fourth Amendment rights following her arrest on May 24, 1990, when a bomb exploded in her car on the eve of Redwood Summer. Fellow Earth First activist Darryl Cherney was awarded $1.5 million on similar grounds. 

The jury largely split liability for the duo’s suffering between the FBI and the Oakland Police Department, the agency that actually arrested Bari and Cherney and performed the search of their residences on the day after the bombing. Nearly $2.4 million in damages were charged to the FBI; the OPD was found liable for just over $2 million.

The most culpable defendants, according to the jury, were Lt. Mike Sims, who was head of the OPD Homicide Division at the time; Supervising Special Agent John Reikes, then head of “Squad 13,” the counterterrorism unit based at the FBI’s San Francisco bureau; and Special Agent Frank Doyle, the FBI bomb technician who at the scene of the bombing concluded that the bomb was located behind Bari’s seat and allegedly told the OPD that nails found in a bag in Bari’s car were “identical” to those strapped to the bomb.

Sims was ordered to pay the plaintiffs $1.85 million for his role in Bari’s arrest and violation of Bari’s and Cherney’s First Amendment rights. Reikes, who was held liable only for the First Amendment charges, was fined $1.3 million. Doyle was likewise found culpable on Bari’s and Cherney’s First Amendment claims, and was also found to be largely responsible for violations that were connected to the search of Bari’s and Cherney’s homes on May 25. The jury awarded Bari and Cherney stiff punitive damages against all three. 

SA Phil Sena and OPD Sgts. Mike Sitterud and Robert Chenault were each fined less than $100,000. The jury determined that Sena, the counterterrorism unit’s point man on ecoterror, was partly responsible for the violation of Bari’s and Cherney’s First Amendment rights. Sitterud, the lead homicide investigator on the case, was fined for the same violation, but only as to Cherney. Chenault, Sitterud’s partner and the drafter of the search warrant application, was held partly liable for the searches of Bari’s and Cherney’s homes.

FBI Special Agent Stockton Buck, who gathered evidence at the scene and conducted several follow-up interviews in the months after the bombing, was cleared on all charges. Federal district judge Claudia Wilken had earlier excused the charges against two other FBI defendants, SA John Conway and SA Walt Hemje, just before the jury began its deliberations. She wrote that the plaintiffs had been unable to demonstrate that Conway and Hemje had any “First Amendment animus” against Bari and Cherney at the time.

The jury found that the defendants did not engage in a conspiracy to commit the violations of Bari’s and Cherney’s civil rights. They further found that a second search of Bari’s home on June 26, 1990, did not constitute an infringement of her rights. The jury was unable to reach a verdict on only one charge — whether or not Cherney’s arrest amounted to a violation of rights under the Fourth Amendment.

The reasoning behind the jury’s decisions will be obscure for the next several months, and perhaps years. Just before the jurors left the courtroom, Wilken instructed them that they would continue to be prohibited from speaking to the media, the public, and the attorneys on either side of the case until the inevitable appeals of their decision were concluded.

In the melee that followed outside the courthouse, Cherney said that the decision was a twofold victory. First, he said, it cleared the pall of suspicion that he and Bari had lived with since they were first charged with knowingly possessing the bomb. He said that he could now “walk the streets of timber country” with his head held high.

Secondly, he said, it proved that the FBI — itself “a threat to national security” — was “inept at best, corrupt at worst.” He prayed for the bureau’s immediate dissolution, and said he hoped that a new federal intelligence agency would take its place.

Despite the victory, Cherney said, his side would appeal the case in order to bring back charges against Conway, Hemje and four other FBI agents, including Richard Held, Jr., the special agent in charge of the FBI’s San Francisco office. The plaintiffs’ attorneys will argue that Wilken erred when she did not allow testimony concerning COINTELPRO — in which Held played a role — and other past and current FBI misdeeds.

Dennis Cunningham, the Bari team’s lead attorney, said that he was “relieved” when it became clear that the verdict would largely favor his side. Questions that the jurors had sent out to the judge during deliberations had seemed to indicate that they were inclined to find for the defense. But the verdict, he said, showed that the jurors “got it.”

R. Joseph Sher, the Department of Justice attorney who represented the FBI agents during the trial, said that he would have no comment until he had time to sort out what the decision meant. Maria Bee of the Oakland city attorney’s office, also declined comment.

Chenault, the only defendant present during the reading of the verdict, said he was nonplussed. “I’ve been at this job way too long for it to have any impact on my career,” he said.

The City of Oakland will automatically cover any damages that, after the appeals process, are incurred against its officers. Sher, whose next case involves defending Henry Kissinger against claims brought by the family of the murdered Chilean Gen. Rene Schneider, said earlier that the FBI will decide whether to pay the FBI agents’ damages on a case-by-case basis.

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