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Trial Notes (May 1, 2002)

Before the trial began, Judge Claudia Wilken ruled that the defendants would not be allowed to mention a “road-spiking kit” found in Darryl Cherney’s van on the day of the bombing. Plaintiffs’ lawyers argued that the kit — which consisted of several lengths of rebar sharpened to a point on one end and perhaps a few other items — would prejudice the jury against their clients. The Oakland defendants held that discovery of the kit played some role in their decision to arrest Bari and Cherney, and they should therefore be allowed to bring it up. Wilken decided that the leap from the road-spiking kit — a tool for industrial sabotage — to bomb was too great, and so barred it from the proceedings. 

Then, when the trial rolled around, the plaintiffs’ team was able to present its clients as “people of peace” who had long ago abandoned monkeywrenching, if indeed they had ever espoused it. Attorneys asked witness after witness why they hadn’t known that Bari and Cherney had sworn off the practice and called for a Gandhian program of non-violence. This must have been a bit rich for Oaland city attorney Maria Bee. She had in front of her all the evidence she needed to de-sugarcoat the plaintiffs, but she was not allowed to use it. 

Of course, Bee was allowed to refer to other items found in the search of Cherney’s van, which was parked at the Seeds of Peace house in Berkeley at the time. The plaintiffs gave her a redacted copy of the OPD’s inventory of Cherney’s possessions, with all the offending items blackened out. Bee used the list way back in the second week of the trial, when she questioned Sgt. Mike Sitterud, the OPD’s lead homicide investigator in the case. 

Bee asked Sitterud to look at the list. Was there anything on it not redacted out that led him to believe Cherney may have been responsible for the pipe bomb in Bari and Cherney’s car? Yes, he said, there was — a piece of pipe, capped off at one end. The defense hit the roof over this, and has given Judge Wilken headaches about it ever since. 

The pipe in the van, they say, was part of the road-spiking kit — it would have been used to drive the rebar into the ground. Then why hadn’t they blacked it out along with the other redacted items? An oversight, they said. But not their fault! “It’s our position,” said Robert Bloom, blowhard of the Bari team, “that it’s perfectly clear notwithstanding the mistake in the redaction, that this was part of the kit.” 

“It certainly wasn’t clear to me,” Bee said. 

Wilken indicated to Bloom that she regretted her original decision to approve the motion to suppress the road-spiking kit. “Given the way the evidence has come in,” she said on Thursday, “I would have been hard-pressed to grant the motion in the beginning.” But the issue isn’t dead yet. Bloom has placed an “omnibus motion” in front of the judge detailing this and other specious allegations of defense misconduct. 

And then there were eleven. Wilken let one juror, a Ms. Evans, go last week after she called in sick. No one protested, as the defense did last week when Wilken considered excusing the English-challenged Mr. Vuong the week before. Evans was clearly looking to get out any way she could. In the elevator at the end of each day, she complained loudly about the insolence of the jury system. Who the hell was that judge to tell her she had to come there every day? On more than one occasion, Evans fell asleep right there in the jury box. 

Wilken empaneled 12 jurors at the beginning of the trial, figuring that the court would lose an average of one juror a week. Federal juries aren’t like state ones: there are no alternates, and their size can diminish over time. The defendants said that they would not accept a verdict rendered by a jury of less than six. With 11 left at the beginning of week four, everything is still on track. 

Attendance at the trial dwindled over the past week, but Bari supporters are making up for the loss by becoming ever louder in the courtroom. The Judi Bari web site admonished spectators not to snicker during court proceedings, but caution has now been thrown to the wind. This boorishness is made all the more irritating by the clear fact that the chucklers usually have no idea what they’re laughing at. Defense counsel R. Joseph Sher made a “beyond the scope” objection during Serra’s redirect examination of Phil Sena the other day, and giggles rippled throughout the courtroom. 

“Beyond the scope” is a strictly procedural objection — the idea is that attorneys cannot ask questions that were not raised during the cross-exam when they get the witness back. It’s a simple rule of order, comparable to the arcane rules that govern public meetings. But in their fevered minds, the gigglers fantasized that big bad Joe Sher was trying to squelch the valiant Serra’s quest for truth, and so they let loose their ejaculations. 

And now the Bari press team encourages this idiocy by sending out a list of wacky “one-liners” culled from the trial. Ninety-five percent of these are commonplaces made funny only through the application of ignorance and fear. Special Agent Frank Doyle says, “I don’t recall telling him that, but reading it here [in his deposition] I guess I did.” Oh ho ho, Frank! We took you down a notch there, you scary man! Special Agent Phil Sena, speaking of a time several months after the bombing when he was reassigned to other matters, says, “I had no idea what was going on in the case, and furthermore, I wasn't all that interested.” Sure you weren’t, Phil, you sneaky rat! 

On Friday, Cherney and his entourage touched down at Oakland High School, which is right across from the scene of the bombing. A ninth-grade teacher was giving her multicultural studies classes a unit on “social justice.” She invited Cherney to come down and speak to them about Redwood Summer, the bombing, and the trial. 

Cherney warmed the students up by strapping on his guitar and giving them a song — “Bush It,” a silly, Weird Al Yankovic-ish indictment of the president. It was a poignant moment for this reporter, who remembers Cherney’s few great songs from the pre-Redwood Summer days. I’m thinking of “Where Are We Gonna Work When The Trees Are Gone,” which, although it came too late to make any difference, stuck it to Maxxam and L-P on behalf of the timber workers. 

If Cherney had written the song a year earlier, if he had never sported the Feral Darryl look, if he hadn’t put a picture of a maniacal beaver falling power poles on the cover of his album, if he hadn’t done a thousand other things to blow his credibility with the North Coast’s indigenous redneck population, he and Bari might actually have made some headway with the loggers — the people they had always needed to convince. As it happened, Cherney found it a lot more fun and rewarding to ham it up for the hippies, reinforcing their base prejudices. That appears to be all that’s left of him now. “Bush It” has probably played hundreds of times on KPFA. It will never make anyone stop and think. 

Eventually Cherney even ruined “Where Are We Gonna Work” by letting Jello Biafra record a sneering punk rock version. 

But hand it to Darryl, he was great with the kids. Oakland High is the school for the city’s underprivileged youth. It’s largely African American. You wouldn’t think that they would give a toss for some freak from the hills, but Cherney held them rapt. Much of this had to do with the tale he told — sinister FBI agents, dumb OPD officers, bombs going off in front of school — but much also came from Cherney’s winning classroom style. He bounced around, eliciting audience participation, shouting “Good!” and running to the blackboard when a kid made a point. Pedagogy is in his blood. 

Six degrees of Tony Serra: Terri Osono, an Oakland High secretary, was working at the school on May 24, 1990, when she saw kids playing in the baseball field start running toward Park Boulevard and Bari’s bombed Subaru. “We were just naïve, we didn’t know what had happened,” she told the AVA. Then, out of nowhere, Osono started talking about how she got involved in the Oakland school system to begin with. She was the only Asian woman, she said, to respond to a call for volunteers issued by Marcus Foster, Oakland’s first black superintendent of schools. Osono said that Foster was a man of immense talent and charisma and was well on the way toward repairing Oakland’s schools when he was assassinated by the Symbionese Liberation Army. Osono heard the gunshots. “We lost a great man that day,” she said. The SLA was in the news last winter, of course, with the trial of fugitive SLA member Sara Jane Olson. 

Tony Serra was Olson’s attorney for a time, and he made headlines when he faxed a letter to the judge in the case claiming that he had missed a court date due to “bad karma.” The Olson case is generally regarded as the low point of Serra’s career: he reportedly bullied his client into copping a plea, and he was sanctioned by the California State Bar Association for disclosing the addresses and phone numbers of two police witnesses in court documents. As punishment for the latter offense, the Bar Association made Serra take a refresher course in ethics.

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