After eleven years of pre-trial motions and six weeks of testimony, Judi Bari and Darryl Cherney’s lawsuit against the FBI and the Federal Bureau of Investigation ended last week. The jury in the case — which will decide if the accused law enforcement officials violated Bari’s and Cherney’s civil rights when they arrested them for possessing the bomb that blew up their car on May 24, 1990 — entered into its deliberations last Friday afternoon.
In a closed session on Wednesday, Judge Claudia Wilken dealt the Earth First activists’ legal team a severe blow when she cut loose two of the defendants — Agents John Conway and Walt Hemje of the FBI. Wilken granted a motion put forward by the FBI’s attorney to grant summary judgment for the two, whose participation in the investigation of the bombing came in the following months.
The defense argued that the plaintiffs had not been able to demonstrate that Hemje and Conway harbored any animus against Bari and Cherney. Though their investigation was unsuccessful, they said, there was no evidence that they had tried to use the investigation to “smear Earth First,” as the plaintiffs had claimed. Wilken agreed, and the two were excused.
The plaintiffs charge the remaining defendants — John Reikes, Frank Doyle, Phil Sena, and Stockton Buck of the FBI and Mike Sims, Robert Chenault, and Mike Sitterud of the Oakland Police Department — are charged with hindering their First Amendment rights to freedom of speech. All of the defendants except Buck are additionally charged with two separate violations of the Bari’s and Cherney’s Fourth Amendment rights arising from the Earth First activists’ arrest and the search of their homes. All the defendants are also charged with conspiracy, which in the legal world means that they would be held responsible for each others’ crimes.
Wilken and the attorneys for each side spent the rest of Wednesday arguing over the content of the explanation of law and the verdict forms that would be given to the jury. The main point of contention was whether or not the jury would be allowed to judge whether the defendants were protected by “limited immunity” for Fourth Amendment violations.
“Limited immunity” is a protection granted to law enforcement officers. In effect, it means that even if officers conduct an arrest or a search that is later deemed to be illegal, they can not be held responsible if the violation was the result of a mistake. Wilken told attorneys that she preferred to let the jury decide the question. Under her plan, the jurors would be given a second question to answer on their verdict forms. They would first be asked, for instance, whether the officers had probable cause to arrest Bari and Cherney. If the answer was no, they would be asked if “a reasonable officer could have mistakenly believed he had probable cause.”
The question was a killer for the plaintiffs. Most of the OPD defendants appeared affable and honest when they gave their testimony, and it would be hard to imagine the jury would not clear them when given the second question. Attorneys for the plaintiffs argued that limited immunity should be determined by Judge Wilken herself. To do so, though, would complicate the verdict forms even further — the jury would have to rule on each element of probable cause that led police to make the arrest in order for Wilken to decide whether the officers qualified for immunity. Wilken denied the plaintiffs’ request for this reason, and ruled that her original plan would stay.
With the jury excused from their duties on Wednesday so that the court could finalize such matters, the plaintiffs’ closing arguments were put off until Thursday. US Attorney R. Joseph Sher, representing the FBI agents, and Oakland Assistant City Attorney Maria Bee gave their closing arguments on Friday. They were followed by a short rebuttal from the plaintiffs’ lead attorney, Dennis Cunningham.
‘The Trees Are All Gone Now Because of Them’
The plaintiffs decided that each of the attorneys would be given a crack at a closing argument. First up was the legendary J. Tony Serra, who provided the jurors with a riveting, fire-and-brimstone “overview” of the case which was hindered only slightly by his frequent malapropisms.
“Ladies and gentlemen of the jury, your honor Judge Claudia Wilkins,” he began, mangling the judge’s name. “You have seen that the plaintiffs table seethes with enthusiasm. We are united in what we view as a great tragedy, and a great disgrace.
“This is about a great police-inspired miscarriage of justice. It’s about two good people who were the subject of a terrorist assassination attempt. And it’s about the fact that the victims of that attempt were victimized. We say that there was a frame-up and a smear, and that the most meaningful aspects of [Bari’s and Cherney’s] lives were destroyed.
“See the meaning, the symbolism this case provides. Use your sophistication. See the forest in each of the trees — the individual pieces of evidence. Walk with the plaintiffs for a moment through the evidence this case provides.”
Serra asked the jurors to imagine Judi Bari and Darryl Cherney, as each of them first came to the North Coast from the East. “What do they see? They see a great beauty — a great symbolism — in the ancient redwoods. The beauty and majesty of them! Aren’t we lucky to have them in Northern California!
“What else did these people see? They saw greed. Corporate greed. They saw that it was the corporations’ goal to eliminate, practically entirely, these majestic redwoods. Because of greed. What did these people do? They exercised their First Amendment rights. They organized sit-ins, they spoke at board of directors meetings, they sat in trees day and night. They wanted reform! They wanted change!
“They didn’t use violence! Never did and never will! I’m talkin’ about these people — I’m talkin’ Earth First, I’m talkin’ Mendocino, I’m talkin’ Humboldt — this area and this portion of Earth First. I’m talkin’ Judi Bari and Darryl Cherney and their commitment to non-violence.
“With a minimal investigation, this would have been seen — that these people were simply exercising their First Amendment rights to prevent this tragedy. I submit to you that this was a cause that was meaningful and profound, and that these people were environmental heroes.”
Redwood Summer, Serra said, was mainly intended to halt the cutting long enough for the Forests Forever initiative to pass. “It would ultimately be the pride and glory of Redwood Summer. Proposition 130 would severely limit the cutting of the old-growth redwood forests. You remember well the evidence about the attempt to fulfill that plan.”
Serra talked about the day before the bombing, when Bari and Utah Phillips met with the Seeds of Peace collective in Berkeley. “They meet that night at Seeds of… Life. The objective was to solidify their relationship with Seeds of Life, which was expressly non-violent!”
Alicia Littletree, who was seated at the plaintiffs’ table, scribbled a note. She walked over to Serra and handed it to him.
“Seeds of Peace,” Serra said. “Well, I say life subsumes peace,” he added, somewhat lamely. “Where there is peace, there is life. Where there is no peace, there is no life.”
Seeds of Peace were satisfied that Redwood Summer would be non-violent, and agreed to provide food and logistical support during the demonstrations. Serra fast-forwarded to the day of the bombing, when Bari and Cherney were following Shannon Marr back to the Seeds of Peace house after Bari spent the night in Oakland.
“They tried to follow Sharon [sic],” he said. “She was driving fast. And then this horrible event. Think of it. Think of the sound, and the black smoke that rose from the car.”
There was a beat of silence, then Serra shifted the scene to the San Francisco headquarters of the FBI’s Squad 13, the anti-terrorism unit to which the federal defendants belonged. “There is a squad,” he whispered, drawing out the word “squad” into a sinister hiss, “a squad in the inner sanctum, I would argue, of the FBI. They are a prestigious unit. They’ve got the corner office, with a view.”
Serra turned on the juice. “Look at them! Look at them from a synoptic perspective. They are the KGB of the FBI! They are the political wing of the FBI! Although they say now” — he switched to a tone of dopey mockery — “they can’t remember, they can’t recall” — then thundered home — “they had in their minds, before May 24, Earth First as a target! From the go, Earth First was on the agenda as the political target of this most political Squad 13. They believed that Earth First was a terrorist organization. One hour of investigation would have proved otherwise, and they knew it.”
The main perpetrator, Serra said, was his nemesis Phil Sena, who shouted back at Serra when he was on the stand. Sena was the only defendant not present during the plaintiffs’ closing arguments. “His combative, arrogant manner and his indifference, as manifested by his absence today — he lit the flames,” Serra said.
Sena had an informant who had told him that some “heavy hitters” would be headed to Santa Cruz, possibly with a bomb. He shared that information with the OPD on May 24th. “He passed on a false tip — a nothing tip, a meaningless tip,” Serra said. “It was a lie!”
“Sena told Reikes, Reikes told Sims, and it was spawned. It was concocted, it was false, and the FBI did it willingly. And the OPD were their lackeys!” Serra imagined the FBI orders that must have been given to the Oakland Police that day: “Get those two! Do it so we can neutralize Earth First and stop the movement to save the redwoods!”
Serra turned to the affidavit written by Chenault on the night of the bombing. The affidavit was presented to an Alameda County judge, who issued the OPD a search warrant for Bari’s and Cherney’s homes, early the next morning.
The affidavit asserted, among other things, that the bomb was located behind the driver’s seat, where it should have been visible. Serra ridiculed that conclusion. “It don’t take a bomb technician to ascertain the truth out there,” he chuckled. “You just open that car door and look in! Hoo, there’s a big hole in the center of the front seat! Then look at the back seat. Nothing at all! You would have expected a bomb next to it would have blown it to smithereens! It doesn’t take an expert mind to determine that that bomb was underneath the seat.”
The affidavit also asserted that finishing nails strapped to the bomb were “identical” to the roofing and framing nails found in bags in the car. “In the remotest possibility, you couldn’t call those nails identical,” Serra said. “That is a lie. You can’t get around that. That was perjury in that affidavit. Doesn’t that provoke you? Doesn’t that cause you shock, that they’d do that?”
Serra told the jurors that there in the courtroom, they got a rare chance to view the police’s “shield of silence,” the law enforcement version of the Mafia’s code of omerta. “You’ve seen them here,” he said, returning to his goony voice to mock the defendants. “‘Oh, I don’t remember. Oh, refresh my recollection. Oh, I said that in 1993 but I don’t remember it now.’ How dare they do that?!”
“Here they were, here was Earth First, about to become the premier environmental organization of the Pacific Northwest, they were going to stop for us and our children the cutting of the ancient redwood forest. Then what happens?
“They become hated! They were hated by the timber industry before, and they were hated by most everyone else afterwards. Everything meaningful was taken from them. Do you see — do you see now — that everything most meaningful in life had been taken from them by this conspiracy of law enforcement?
“The tree initiative lost, and we — We! We! — don’t have those trees anymore as a consequence. The trees! The trees are all gone now, because of them,” he said, indicating the defendants.
Serra reminded the jury of Bari’s videotaped testimony, shot just a few weeks before her death from cancer. “Why do people get cancer?” he mused. “Because of fear…” “Your honor!” Sher shouted. “That’s going a little far, Mr. Serra,” Wilken said.
So Serra wrapped up with an appeal to the jurors’ patriotism. “We will ultimately become a government-controlled people if you don’t deter this. You’ve gotta deter them. You’ve gotta send a message through the media, across this country, that this is not acceptable!”
“That’s why we want punitive damages, and I’m talkin’ millions and millions of dollars. Not for us. None of us are here for the money. We want millions — to punish them!” Serra turned and pointed back to the defense table, his teeth bared and his face bright red with outrage, then he thanked the jurors for their time and sat down.
Robert Bloom, who throughout the trial drew a steady stream of rebukes from the judge for disobeying court orders, began his presentation with two apologies. The first was for his own boorishness: “If you found that some of my own squabbles with the judge or with the witnesses were insulting, I apologize,” he said. “If you think ill of me because of it, please don’t take it out on the plaintiffs.”
The second was for Cherney’s courtroom rendition of one of his old songs, “Spike a Tree for Jesus.” “He sang a brazen, brash song that may have been offensive to some of you,” Bloom said. “Please don’t hold it against him.” He asked the jurors to remember the rest of Cherney’s testimony, how amiable and forthcoming he was, and invited them to compare his demeanor with that of Special Agent Frank Doyle. “Think about how [Doyle] ducked and evaded when he testified.”
Like Serra, Bloom imagined the scene inside Squad 13 headquarters when they heard that two Earth First activists had been bombed in downtown Oakland. Ventriloquizing the agents, he rubbed his hands together and said, “Yummy. Just what we want. Let’s go after them.”
But 12 years later, Bloom said, it should be clear that their supposed rationale did not hold up. One of the first bits of evidence that the jurors consider was FBI bomb expert David R. Williams’ statement that the bomb — with its three safety switches — “functioned as designed.” That should have been clear to the bomb technicians at the scene, he said.
“Any law enforcement officer would have to know that the switch would be in the ‘on’ position,” he said. “A person transporting the device would have it in the ‘off’ position. It doesn’t take a genius to come to that conclusion.”
Bloom then defended Williams, who backed up most of the plaintiffs’ key assertions about the placement of the bomb, against Bee’s charges that he was in the habit of stretching the truth and overstating his scientific expertise. The office of the Attorney General of the United States had implicated Williams by name in the FBI laboratory scandals of the mid-90’s. After the AG’s report came out, Williams was removed from his position at the FBI’s main lab and transferred to its field office in Baltimore.
But why, Bloom wondered, would Williams support the plaintiffs’ claims at the expense of his fellow FBI agents? “He had no reason to lie and support us against the defendants,” Bloom said. “They’re going to tell you that David Williams was lying. I ask you to pay attention to that.”
Bloom further defended Williams’ other key role in the case. Williams would later say that the nails on the bomb were from the same batch as some finishing nails found in the search of Judi Bari’s home. The Oakland defendants, Sitterud in particular, said that Williams estimated the size of a batch as being between 200 and 800 nails. When he was on the stand, Williams denied ever mentioning what size a “batch” would be.
“Sitterud made up a story,” Bloom said. “He lied about David R. Williams. He lied about it. And when David R. Williams refused to back up his lie, Ms. Bee thought, ‘I’d better attack this David R. Williams about something that happened years ago.’”
Bloom also tried to deflate the notion that Cherney told people at the scene that someone “threw a bomb” at the car. The OPD detectives said they took this statement — which they attributed, in the search warrant affidavit — to a paramedic named Buckman as evidence of an attempt to cover up the crime, and that it was one of the major factors in their decision to arrest.
Officer Alner Brewer, the first OPD officer to arrive on the scene, testified that he heard Cherney make the statement right after the bomb had exploded. Bloom had attempted to impeach Brewer by noting the different pronouns that he had attributed to Cherney in his police report, in a deposition, and on the stand. “It all came down to one word,” Bloom argued. “The word ‘threw’ was there consistently. But all the other words around it — my car, our car, her car — the words were not clear in his mind.”
In any case, Bloom said, the line was patently false. “It’s a 100% lie,” he said. “How do we know that? Because if he had, Buckman would have been there, sitting on that witness stand, saying, ‘Yes, I told that to Chenault.’ Why didn’t the defense call him?”
Bloom took up the subject of the “identical” nails found in Bari’s car, which was the largest split between the Oakland and the federal defendants. During the trial, each side blamed the other for coming up with the idea that the bagged nails matched the finishing nails strapped to the bomb. “Doyle told Chenault,” he said. “Or did he? Did Chenault make it up, that the nails were identical? The nails are not identical. You can see with the naked eye that they were not identical. This was an intentional lie. There’s no other explanation.”
He then drew out Sims’ suspect testimony about nails. Sims had said that someone — he couldn’t remember who — had shown him a bag of finishing nails that he said were found in Bari’s car, along with the roofing and framing nails.
“How could he look at you and say to you — twice — ‘I saw a bag of finishing nails’?” Bloom asked. “That couldn’t have happened. That didn’t happen. He looked you in the face and he lied to you.” Sims’ testimony could only lead the jury in one direction, Bloom said — to do the “right thing” — and he beseeched the jurors to find the gumption to so rule: “Please don’t be afraid of it. Please.”
Bloom turned to the road-spiking kit — a collection of sharpened rebar stakes and a small pipe used to pound them into the ground — that were found in Cherney’s van on the day of the bombing. Sitterud had said on the stand that he had seen the tiny pipe that day, that it was roughly the same size as the bomb must have been, and that fact contributed to his decision to arrest Cherney.
Unhappily, the memory of that testimony was enough to unhinge Bloom and make him forget the contrition he had offered to the jury earlier. Seizing the pipe and a much larger mock-up of the bomb, he swirled around to face Sitterud, brandishing each pipe in either hand, and bellowed, “Is that the truth, sir? Are those the same size?”
Every attorney at the defense table shouted out objections, but Wilken was already speaking. “Mr. Bloom,” she said sharply, “address your comments to the jury.”
Bloom turned back to the jurors as if nothing had happened, and in closing he exhorted them to do his bidding. “Be fair,” he said. “Do the right thing, here. You are very important people — the most important people in the case. Thank you.”
After Serra’s bombast, after Bloom’s self-serving penitence, the jurors were asked to switch gears yet again when the aged Dennis Cunningham stepped to the podium. Cunningham’s speech was almost indescribably sad. It had the feel of a eulogy for something — a vision of America he held dear, a case he figured to be almost wholly lost, or simply the last ten years of his life.
Cunningham was surprisingly eloquent in his melancholy. He was able to convey something that was never clear when, while examining witnesses, he tried to summon the righteous anger that is Serra’s weapon of choice. In his defeat, one saw just how much he cared about the case, how important it was to him, how much he thought it said about the state of the country.
“We have to remember that this is a case about civil rights,” he started, “rights so fundamental that they go back to the beginning of our country.” Cunningham rummaged through his papers and pulled out a book containing a passage from Alexander Hamilton that he wished to share with the jurors: “The Sacred Rights of mankind are not to be rummaged for among old parchments or musty records. They are written as with a sunbeam, in the whole volume of human nature, by the Hand of the Divinity itself, and can never be erased or obscured by mortal power.” His voice wavered while he read the passage, but he stopped himself just short of tears.
One such mortal power, Cunningham intimated, was the Oakland Police Department. The OPD abrogated Judi Bari’s eternal rights when an Officer Ludwig wrote out an arrest report at 3 p.m., just three hours after the bomb went off in her car. “There was no need for that, other than for the headlines,” he said. “They weren’t going anywhere, Judi and Darryl.”
They did this, Cunningham said, in spite of evidence of threats made on Bari’s life, written copies of which were in her car at the time of the bombing. The arrest flew in the face of reason, Cunningham said. “You would have known — you or I would have known — that they were trying to kill that woman because she had a big mouth. She was using that mouth to reach out to timber workers, and it made the timber industry scared.
“Think about all the leads they didn’t investigate. Think about Bill Staley, think about Jack Azevedo and Charlie Stone, think about the Fort Bragg Nazis. The person who tried to kill her is still walking around. They never tried to find the person who did it. They let him go.
“They didn’t investigate at all, unless they investigated Earth First — the ‘core group,’ the people at the Golden Gate Bridge. The people making waves in the timber district. The people who had the combination of audacity and nerve to say they were going to try to live up to Mississippi Summer — to say that they were going to take that work that was done for civil rights and extend it to all living things.”
He pointed to Cherney. “There’s one of them, right there. There’s been a number of them that have come into this courtroom. They’re not the same as you. They don’t think like you do. But you can’t say that makes them fair game for some low, perverse, kind of creepy response from people we look to to protect and serve us.”
Shortly after this, Cunningham lost the thread of his argument. He looked through his papers, trying to find the relevant page of his notes. The courtroom was filled with dead air. Remembering then that something similar had happened to Sher a few days earlier, he looked over to his opponent and said, “Could happen to anyone, huh, Joe?”
“You’re not just anyone, Dennis,” Sher replied.
Cunningham, like everyone else in the room, was stunned by this. He looked back at the defense table with a shy smile on his face, and finally came up with a gracious response: “I’ll take that as good will.”
With some help from his paralegals, Cunningham was able to find his place, and he quickly got to the question of damages that were due his clients. “You’ve heard Darryl testify that this was a time of great promise for this movement,” he said. “You can’t compensate Redwood Summer, you can’t compensate Forests Forever. You have to give it to him and Judi Bari’s estate, but you have to focus on all these things when making this decision.”
Cunningham asked the jurors to consider all the newspaper headlines from 1990 they had been shown, the ones that tied Bari to possession of the bomb. “See if you can make a headline here that wipes out those headlines,” he said. “You could wipe a lot away. And you should, because you’ve been shown the evidence.”
“You have to make these people pay,” he concluded. “And then you have to make them pay more, because they did this on purpose. Let’s read about some redress for the bad stuff that was done here. When these people were bombed, it made the front page of the New York Times. Let’s put it back there.”
‘How Dare They!’
On Friday, R. Joseph Sher gave the first argument for the defendants. “Now it’s time for you to put together the puzzle that we talked about at the beginning of this trial,” he said. It’s a very difficult job. But you have guideposts — the instructions that the judge gave you yesterday. I think it’s no accident that there wasn’t any discussion of those instructions yesterday. They didn’t come from me or my colleagues, they didn’t come from the plaintiffs — they came from up there. From the judge.”
The first claim on the jury instructions concerns the searches of Bari’s and Cherney’s home, the rationale for which is laid out in Chenault affidavit in support of a search warrant. “What in the warrant is attributable to one or more of the federal defendants?” Sher asked. “The first one concerns the placement of the bomb in the car.” In the affidavit, Chenault cites Sher’s client, Frank Doyle, as the source of the idea that the bomb was behind Bari’s seat.
“The first fact you have to remember is that there were four trained bomb technicians at the scene,” Sher said. The first to arrive was T.J. Roumph, a member of the Alameda County bomb squad: “He thought the device was on the left rear floorboard and would have been visible.” Next was Agent James Flanigan of the Bureau of Alcohol, Tobacco, and Firearms: “Mr. Flanigan said the device would have protruded from under the seat, and it would have been reasonable to know the device was there.” Doyle arrived shortly after Flanigan: “He [Doyle] told you that it was at the axis of the back of the driver’s seat and the bottom of the seat. He told you that he thought, at the scene, that a bomb that big wouldn’t have fit under the seat.” Special Agent Patrick Webb, Doyle’s colleague in Squad 13, arrived much later. He testified that he concluded that the bomb was in the back before speaking with Doyle.
“Ask yourself, was there any bomb technician that looked at the car on that day, May 24, 1990, and came to a different conclusion,” Sher said. “There wasn’t one. They all came to the same conclusion.”
Sher said the testimony of Dr. Peter Slabaugh, who treated Bari at Highland Hospital after the blast, supported this. “Dr. Slabaugh told you he couldn’t tell you whether it was at a 90 degree angle [directly under Bari] or whether it was at 60 degrees, or 45,” he said. “Anything other than 90 degrees tells you that the bomb was where the bomb techs placed it. And the evidence is that Ms. Bari complained at the scene about pain in her back.
“The answer is: based on the opinions of the bomb technicians at the scene and the medical records, it’s all consistent with the bomb being where they said it was. All of it.”
Sher detoured briefly into the plaintiffs’ charge that the defendants should have known that the bomb was primed to explode when it did. “Did you hear anyone who testified under oath say that they thought that they were carrying it armed?” he asked. “They didn’t. Mr. Sims told you and Mr. Reikes told you that those things go off accidentally. Forty percent of the people killed by bombs were making or transporting them themselves, as Mr. [Leo] West told you,” Sher said, reminding the jurors of the testimony of the FBI’s current bomb guru. West had presented the court with statistics on accidental explosions.
The next item in the search warrant affidavit was the problematic issue of the “matching” nails found in the car. Chenault had written, and maintained on the stand, that his information about the nails had come from Doyle. Sher wasn’t having it. “Mr. Doyle told you he didn’t say that,” he said. Sher told the jury that if they didn’t believe his client, they should strike out the line about the nails in the search warrant affidavit and read it over again. “Decide whether reading it that way still shows a good reason to search,” he said.
Sher moved to Bari and Cherney’s arrest. “The first question you have to answer is when [the arrest took place]. They’ll tell you that it was at 3 p.m. I say — hold them to it.” Sher noted that the Alameda County bomb squad had finished checking the car for additional bombs at 2:40 p.m., so his clients would not have been able to examine the car before then. “If they were arrested at 3 o’clock, then nothing is attributable to the federal defendants. Hold ‘em to it. End of story.”
The second possible time was at 6:45 p.m., when several FBI agents briefed the OPD officers on the history of Earth First at OPD headquarters. OPD Sgts. Hanson and Kraft had taken notes on the briefing. “The first thing [the notes] show is an announcement that [Bari and Cherney] were in custody — before the federal defendants said anything,” Sher said. “O.K., that’s fine. I’ll take that and thank you for it.”
The latest time of arrest brought up during the trial — the time that the OPD maintains was the official time of arrest — was early the next morning. “If the arrest happened at three in the morning, then you have to take into account what Lt. Sims told you,” Sher said. “He said that he made the decision to arrest. He testified that he knew that if it was an FBI decision, the FBI wouldn’t have arrested them.”
As regards the First Amendment charge, Sher argued that the plaintiffs did not show that his clients had any animus toward Bari and Cherney or their work. “I submit to you that just because you investigate a crime connected to a cause, it does not mean that you are hostile to the cause,” Sher said. “Ask yourself if there was any evidence that Mr. Reikes, Mr. Sena, Mr. Doyle, and Mr. Buck wanted to pave Humboldt County. You know there was not. The only evidence is that four honorable officers investigated criminal conduct.”
Of the last charge — conspiracy — Sher asked, “Remember how [the plaintiffs] asked you to send a message? Well, I want you to send a message too. The message I want you to send is that police agencies can and should work together. That’s the only way our government can work.” He charged that a conspiracy ruling against his clients would cause law enforcement officials to think twice before cooperating with their colleagues in other agencies.
“It is unfortunate that this investigation did not reveal who put the bomb in the car,” Sher concluded. “But remember several things. One: after that first day, Ms. Bari and Mr. Cherney were not cooperating. Two: Ms. Bari requested use immunity before consenting to an interview. She also wanted access to all interview reports generated in the investigation before she would talk. Think about how that would strike an investigator. Three: this investigation was not the only thing my clients had to do.” Sher mentioned an upcoming visit to the Bay Area by the Soviet president, Mikhail Gorbachev, the Gulf War, and ongoing investigations of the Provisional Irish Republican Army and “other terrorists from around the world.” “Don’t let them tell you that they should have dropped those investigations,” Sher said.
He then went, briefly and reluctantly, to the issue of damages. “I don’t think you’ll get there, but if you do I’ll say this,” he said. “Ms. Bari was terribly injured in the bombing. No one should have to go through that. But that’s not an element of damages in this case. All you can award are damages that have been proven to come from something one or more of the defendants did.”
“I will tell you that the federal defendants are not happy to be in this position — but you already know that. And I know you will serve this system with the same dedication that they served our system for 30 years each. Thank you.”
As she did in her opening statement, Maria Bee took the jurors through a present-tense reenactment of the OPD’s actions on the day of the bombing, from her clients’ perspective. They arrive at the car. Agent Doyle tells them that the bomb was in the back seat, where Bari and Cherney would have seen it when they loaded the car that morning. He says that nails from the bomb match one found in a bag in the car. Agent Reikes tells them that “Earth First had a lousy reputation for violence and sabotage.”
“They had a fair probability that they were carrying the device,” Bee concluded. “That’s all they needed. You’ll see that in your jury instructions.”
When discussing the nails, Bee pointed the finger back at Agent Doyle, whose testimony on the stand conflicted with what he said in a deposition. “He acknowledged in his deposition that there was a bag of nails in the car that matched those on the bomb,” she said. “In this case, there was no reason to think that Agent Doyle’s information was unreasonable.”
The fact that medical and explosives experts still disagreed about the location of the bomb exonerated her clients, Bee said. “You can decide that the bomb was under the seat — you can decide that the plaintiffs were victims in this case — and still find that what the OPD did was reasonable,” she said. “It’s what they knew at the time that counts.”
Bee defended the idea that the official arrest was made at 3 a.m. the morning after the bombing, despite the fact that Officer Ludwig filled out an arrest form on Bari at 3 p.m. that day. “There’s no evidence that anyone told him to do that,” she said. “No one knows why he did that. Maybe Mr. Ludwig misunderstood. Why would they arrest Ms. Bari at 3 p.m. and Mr. Cherney at 3 a.m.? Why would they separate them like that? It doesn’t make sense.”
Regardless, she said, the arrest was justified. “If there’s probable cause to arrest someone, they’re not going to wait,” Bee said. “If a bomb goes off in front of Oakland High School and they think they know who’s responsible, they’re not going to wait to make the arrest.”
Bee accused David R. Williams of saying that the nails on the bomb could be matched to ones found in the search of Bari’s home, as Sitterud had testified. “He tells Sgt. Sitterud that he has matched the nails from the first search to the bomb, in a batch of 200 to 800 nails.” Only later, Bee said, were they to learn that “Agent Williams has a problem talking up his expertise.” “Remember also that the Attorney General said that someone should review his testimony after he appears in court,” she said. “Maybe Mr. Cunningham will tell you who reviewed his testimony after he testified for you.”
Bee saved the bulk of her wrath for the plaintiffs’ claims that they adhered to a strict strategy of Gandhian civil disobedience. “Mr. Cherney said [in the Los Angeles Times] that the renunciation of tree-spiking was a ‘radical change’ for Earth First,” she said. “After the renunciation, he kept distributing [Dave Foreman’s monkeywrenching manual] Ecodefense, which shows people how to take down power poles and spike roads.”
“Then the album covers. A big burning bulldozer, with Ms. Bari and Mr. Cherney walking away, one of them holding a gas can and the other a monkeywrench.” Bee chided the plaintiffs’ assertions that they were working to save the economic viability of the forests for future generations of timber workers by bringing up Cherney’s road-spiking kit. “What about the logger who has his tires blown out by a spike he didn’t see?” she asked. “How does that protect the logger’s children? It’s hypocritical.”
“And then there’s ‘Spike a Tree for Jesus.’ He sat down and he wrote those lyrics. He continued singing those songs after the renunciation of tree-spiking: ‘I realized it was the loggers that got Jesus — this time we’re going to get them back good.’ And they compare themselves to the civil rights activists of the 1960’s? How dare they! Those people didn’t take photographs of themselves with automatic rifles!”
“It’s an inescapable conclusion that the Oakland defendants were reasonable,” Bee concluded. “Everything they did was reasonable at the time. Thank you.”
Cunningham got up to deliver his short rebuttal — to “refute these misleading, spurious, false arguments that have just been made, if I can.” He started out with Sher’s argument that his clients could not be held liable because they were not anti-environmentalist.
“They did it because they were interested in disrupting this movement,” Cunningham said. “They did it in order to smear them as bombers. It was because they were being effective. It was because they were getting through to the workers. Let’s don’t be misled into some superficial motive. It’s the animus against Earth First and activism in general that led them to this smear campaign.”
Then he went after the limited immunity question — “Could a reasonable officer have mistakenly assumed he had probable cause” — that could very well let the OPD defendants off the hook. “The answer is just the same — no, of course it’s not reasonable,” Cunningham said. “It’s not reasonable to lie, to distort the truth, to look away. The answer is no. No reasonable officer could have done that.”
In response to a note from him colleagues, Cunningham brought up the one defendant that had barely been mentioned during closing arguments: agent Stockton Buck. Wilken had come within an inch of dismissing Buck along with Hemje and Conway, and now the plaintiffs had nearly forgotten him. Cunningham quickly reminded the jury of Buck’s deeds. “He deep-sixed the original threat letters he got from Susan Jordan,” he said. “He was out there cooking up the ‘core group capable of violence.’ He’s part of he conspiracy, part of the meeting of the minds.”
Then Cunningham turned back to rebutting the defense’s arguments. “A lot of slanderous things were said about Judi and Darryl. That in his secret heart he’s violent. Because he had that book [Ecodefense]. Because of his album covers. Because of something he said on 60 Minutes. No crimes, no acts of violence, no advocacy of violence. None. You must repudiate the attempt that was made here to smear these two people and their movement.
“If they could be honest with us or honest with themselves, we wouldn’t be here. We’re here because this is the only way this thing can be undone. It was a false arrest, it was a frame-up, it was deliberate. It cannot be allowed to stand. You will rebuke them mightily for the wrongs they did. You will tell them, ‘No’.”
Cunningham sat down, his last word entered for the record, the climax of his decade-long odyssey with this case passed.
On Monday afternoon, with the jury in deliberations, Tony Serra and Bob Bloom kibitzed with friends and admirers in the hallway, Cherney spun tales for reporters, and Joe Sher and Maria Bee chatted with their colleagues about national affairs. Cunningham sat alone, his back turned to all of them, and he gazed silently into the courtyard of the Oakland Federal Building.