After years of pre-trial wrangling, Bari vs. Held, our lawsuit against the FBI and Oakland Police for their handling of the 1990 car-bombing, has finally reached a turning point. On November 22, in a hearing in Federal Court in Oakland, we will get our first chance to present our evidence showing that the FBI and OPD knowingly lied when they arrested Darryl Cherney and me for possession of the bomb that nearly took my life.
Our lawsuit charges the FBI and OPD with civil rights violations including false arrest, illegal search and seizure, and denial of equal protection of the law. We claim that they knew perfectly well that we were the victims, not the perpetrators, of the bomb that exploded under my car seat on May 24, 1990, as we were organizing for Earth First! Redwood Summer. Yet they arrested Darryl and me for the bombing, and conducted their smear campaign against us in the press, in order to discredit us as terrorists and neutralize Earth First!
The hearing on November 22 stems from the FBI's (fourth) attempt to have the case dismissed without a full trial. This time they have made a motion asking the judge to dismiss just our claims about the illegal searches. In order to win the motion, the FBI and OPD need only to show that a reasonable officer could have believed that it was our bomb. In order for us to win, we have to show that there is substantial evidence that the FBI and OPD knowingly lied in order to get the search warrant.
Fortunately, our evidence is so strong that it is hard to see how we could lose. For the past three and a half years, this lawsuit has been in the “discovery” phase, during which we have gotten access to 7,000 pages of FBI and police files, viewed the physical evidence, and compiled 6,000 pages of sworn testimony from FBI, OPD and other witnesses. Although we do not get to call live witnesses at the November 22 hearing, both we and the FBI/OPD have to make our arguments based on the evidence collected in the discovery. This evidence includes:
• Lie #1 — The search warrant states that FBI Special Agent Frank Doyle claimed that the bomb “was on the floorboard behind the driver's seat when it detonated” (and therefore, supposedly, we should have seen it and known it was there). This is disproved by the police's own crime scene photos, which show the hole in the car's floorboard to be clearly under the driver's seat, and the back seat still intact. Also, the FBI's own bomb expert from the Headquarters lab in DC, SSA David R. Williams, has testified that the bomb was fully hidden under my car seat, and that this was obvious from the damage to my car.
• Lie #2 — The search warrant also quotes SA Frank Doyle as saying that “a separate bag of nails was discovered in the vehicle that are identical to the nails taped to the explosive device.” We have studied lists and viewed and photographed all the nails. We can now prove that the nails taped to the bomb were finishing nails and the nails found in a bag in my car were roofing nails or sinkers, and different to the naked eye from the nails in the bomb.
• Lie #3 — FBI lab bomb expert SSA Williams has also testified that the bomb was triggered by a motion device, consisting of a large ball bearing that had to roll to connect two contact points. We have also seen and photographed this ball bearing in the FBI's evidence room. The fact that the bomb was hidden under my car seat and triggered by the motion of my car certainly undermines FBI/OPD claims that a reasonable officer could have thought I was anything but the intended target of the bomb.
• Lie #4 — In the warrant for the second search of my home, OPD Sgt. Sitterud claims he was told by FBI lab expert SSA Williams that nails were found in my house that matched nails in the bomb “in a bath of 100-1,000 nails.” SSA Williams has testified that he never said that, and that nails are made in batches of millions, and cannot be matched on that scale.
These are just a few examples of the evidence we will present in court November 22. If we win this motion it will take us a giant step closer to a full jury trial. The hearing will be at 10am in Judge Claudia Wilkins' courtroom at the Federal Court, 1301 Clay Street, Oakland. There will be a rally at 12 noon in front of the courthouse (see leaflet). We hope you can come to help support this long struggle against FBI terrorism and injustice. For carpool info call 707/468-1660.
The San Francisco FBI field office file on the Thermcon case detailed the FBI's local activities in support of the sting operation. The file shows that the very same FBI agents who were central to my case also worked on the Thermcon case, bringing into question their repeated claims that they knew little or nothing about EF! before the bombing.
Much of the local activity in the Thermcon case involved routine spying and information gathering on various public EF! leaders. SA Frank Doyle, for example, performed the task of finding the directions to EF!er Karen Pickett's house. One man named Mark Berry, who lived in Marin and was not an EF!er or even an activist, was placed under total surveillance by the FBI because he was visited by EF!er Mark Davis, the central target of the Arizona sting. Davis and Berry were old friends who used to work together in a cabinet-making shop. Even though there was no evidence of Berry being involved in any crimes ever, the FBI placed a phone and mail cover on him, had agents parked outside his house following his every move, and flew surveillance planes over him. They even sent a pregnant FBI agent and a man FBI agent to check out Berry's cabinet shop, posing as husband and wife shopping for furniture for baby.
The Thermcon file pages that we have seen do not specifically show them surveilling Darryl or me, but much of the file is blacked out and there are pages missing (see below). The file does show that the FBI was conducting undercover operations against Earth First! in Mendocino County where I live, as early ass 1988. And, although the Thermcon case was closed in January 1990, the San Francisco FBI continued to put local reports in the file in March 1990 which show that an undercover FBI informant was meeting with an undercover FBI agent once a week, somewhere in Northern California. We can't tell the subject or content of these meetings because the document is heavily blacked out. I was bombed only two months later.
The strangest part of the San Francisco FBI's Thermcon file is not what is there, but what is missing. In between the first and second document that show the weekly meetings of undercover agents in 1990, there is a page that simply reads “Serials 141-159 were missing from this file when it was processed.” The next document in the file is from June 1990, one month after the bombing. So the missing documents cover the exact period that we are interested in — beginning right before the bombing.
The FBI lawyer has told us that there are not really any missing documents. It was just a clerical error, caused by the fact that they were changing their computer system. But the fact is that those serial numbers are indeed missing, and if it was just a computer error you have to wonder why the person who processed the file included the page that acknowledged the missing documents.
Nor is this the only case of missing file numbers in our FBI files. The main file on the bombing case seems to be missing whole sections of information. For example, there are absolutely no FBI reports in my file that document the FBI's inspection of my bombed car and conclusion that the bomb was in the back seat, etc. There are also absolutely no files that document the FBI Headquarters lab expert SSA Williams' trip to Oakland to inspect the bombed car, in which he informed the local FBI that the bomb was hidden under my car seat and triggered by a motion device.
And, strangely, nearly all the file numbers in the bombing case FBI file have been crossed out, and a new file number written in. The new file numbers seem to contain hundreds of pages fewer than the old file numbers. But just as in the Thermcon file, the FBI lawyer has assured us that the files are not really missing. He says that, at the time the file was made, the FBI had an incompetent rotor clerk (the secretary who keeps the files), and they had to fire her and redo her work. Butt when we asked for the names of the incompetent rotor clerk and her replacement so we could question them under oath, the FBI simply refused to produce them. And even though we have now gotten a court order telling them to produce the rotor clerks for questioning, they have been dragging their feet and have so far not done so.
So even though we have learned much about the bombing frame-up and the FBI's wrongdoing in this case, there are serious questions that still need to be answered. For example, since the FBI's records state that, at the time of the bombing, Darryl and I were “the subjects of an ongoing investigation in the terrorist department,” what were we being investigated for, and where are the records of that investigation? And, if we were being investigated, were we, as principle EF! organizers, under FBI surveillance at the time of the bombing?
These questions may never be answered. But the FBI lawsuit is the only way we have to even try to find out. We hope you will continue to support our efforts in this lawsuit, both to gain justice for the FBI abuses we have already proven, and then try to get the bottom of what really happened when I was bombed in 1990.
Keeping this lawsuit going for all these years is not an easy task. Even though our legal team works for a small fraction of what they are worth, and often for free, the costs of pursuing a case in Federal Court are enormous. The only way we can keep this case going is with your help. Please contribute what you can to help us pursue justice. This case is not about me, Darryl, or Earth First! It is about the right of all activists to work for social change without fearing repression by the government's secret police.
Checks should be made out to Redwood Justice Fun and mailed to Redwood Summer Justice Project, PO Box 14720, Santa Rosa, CA 95402. (707/528-9043). Thank you.