When the jury awarded $4.4 million in the victorious Federal law suit of Judi Bari and Darryl Cherney versus the FBI and Oakland Police Department (OPD) last week, eleven years after the case was first filed, there was shock enough for all sides. The FBI team, defendants and friends were described as being numb with astonishment. Ditto with journalists I queried who’d covered the trial; even where they thought there might be a lesser charge that would stick, none believed the damages would be more than symbolic.
Even the victors were surprised: Darlene Comingore, executor of the late Judi Bari’s estate (she died of breast cancer in l997) exclaimed, “it’s beyond my wildest dreams.”
And while Darryl Cherney told reporters after the fact that he for one wasn’t surprised at the outcome, one journalist who’d faithfully covered the trial countered, “If you were looking in his face that day, it told a different story.”
Only one person close to the FBI side expected they would lose. How was he so prescient? He attributes much of the verdict to what he calls a “propagandized jury pool” in the Bay Area—“they’ve had 40 years of brain washing,” is the way he put it. He also was not alone in believing the defense attorneys mounted a weak case, based on their collective certainty that a jury could not take the suit seriously.
Bay Area juries are indeed among the most liberal, and anti-police in the country. On that score it is understandable that American Taliban fighter, John Walker’s Lind’s lead attorney, James Brosnahan made a futile bid to have his client’s case transferred back home to Northern California. And I recall some years ago an Alameda County judge observing that the only sure conviction in these parts was for rape. (And, more recently now, it would appear, for dog mauling.)
This axiom certainly proved true in many of the Black Panther trials in this area. From the late Sixties on up into the Eighties, jury after Alameda jury, hung up or just declared innocent the late Black Panther leader, Huey Newton on two different murder charges, several beatings (one for pistol whipping a black tailor who’d come to the Panther’s penthouse overlooking Lake Merritt to make Newton some suits), kidnapping (he held a night club owner captive while he waved a gun and ranted), and drug charges among others. What Alameda prosecutors learned quickly when dealing with the Panthers and other Bay Area lefty causes, was that local juries were innately hostile to local police and Federal authorities.
Talented attorneys from Charles Garry and even the Bari/Cherney lead courtroom performance artist, Tony Serra, early on made police and FBI overreaching the issue, not murder or criminal behavior on the part of defendants. Such a strategy of making government itself the issue rather than the crime being charged quickly became a successful strategy adopted in the defense of Mafia bosses and drug kingpins. But it was first introduced and refined by lefty lawyers, many from the Bay Area.
Of course these attorneys didn’t make up the charges of government misbehavior out of whole cloth. Examples of FBI thuggery in going after radical activists date back as far as the Palmer raids up through the McCarthy period (when J. Edgar Hoover was in full flaming powers) and culminating in the FBI shame of building dossiers against Martin Luther King Jr. and anti-Vietnam War activists. (My own FBI files harken back to the Free Speech Movement, on to my days as a Yippie organizer in New York, and still later as a journalist visiting Huey Newton’s penthouse.)
In the Earth First case, Judge Claudia Wilken repeatedly and angrily warned plaintiff attorneys not to refer to past Cointelpro campaigns aimed at radicals. Cointelpro, as it was called, was a campaign of dirty tricks, disruption and intimidation against domestic radicals and political activists inaugurated by President Nixon, and ending, according to recently published internal FBI documents in l973 in the wake of Senator Frank Church’s committee hearings exposing the government’s chicanery. (The FBI did target CISPES, the Committee In Solidarity with the People of El Salvador, under Reagan’s ideologically driven directives briefly for a little over a year during Iran/Contra days, but that was discontinued under strict orders once Bush Pere was elected with the admonishment to all bureaus that such action was strictly against the law.)
But the ghosts of FBI and police overreaching were clearly present and impossible to expunge from the collective memory of the Bari/Cherney case jurors.
As for the OPD, they’d been tarnished through years of Panther trials, characterized as redneck cops recruited from the worst Southern states who came up north to continue their Bull Conner ways among Oakland’s black population. This was true enough during the l940s when both blacks and Dixie recruits came north — black sharecroppers to work in the Kaiser shipyards; whites to become cops. Back then there was plenty of police brutality as attorneys like the late Bob Treuhaft (husband of the late author Jessica Mitford) specialized in going after rabid cops, usually pro bono.)
Communist Party and Lawyer’s Guild attorneys like Treuhaft kept that characterization alive long after Oakland foreswore earlier redneck recruiting fields, hiring instead from the college graduates primarily from the Midwest and from the pool of newly college-educated African Americans beginning in the l960s.
But myths persist. As to the bad deeds of institutions like the FBI or of police who ran amok among the powerless: Jean Cocteau’s observation that “police are the symbol of death in modern society” continues to resonate; we need only remember examples such as the brutal sodomizing of Abner Louima, the Haitian black man, with a police nightstick while in New York police custody five years ago.
It didn’t help matters for the FBI that just as they were in deliberations on the Bari/Cherney suit, leaks from Washington turned into a torrent over FBI failures to respond to field agents’ suspicions relating to the 9/11 terrorism. Judge Wilken had admonished jurors not to read anything about the case at hand, but they were free to read more gutter sniping between the FBI and CIA. And, while she’d granted a six-month delay in the trial in response to plaintiff lawyers’ fears their side would be tarnished in the post 9/11 anti-terrorist national mood; no such postponement would be sought — nor probably granted — in the anti-FBI criticism spilling out during two plus weeks of jury deliberation.
If the FBI had a history of going after domestic political dissidents, in the current case, that putative fervor was more than matched in passion by the late Judi Bari. While Darryl Cherney testified that Earth First’s environmental work was damaged by his and Bari’s initial arrest and characterization as bomb carriers by the police (charges were never pressed and the two activists were freed) in Bari’s case at least, it’s clear she chose to fight her law suit until her death over saving redwood forests.
A close colleague of Bari’s in saving the redwoods before the bombing told me she visited the hospital in l990, a week or so after the car bombing. Bari had by that point already given out numerous taped interviews to the media and was capable of issuing pronouncements. Pleading during her visit with Bari to issue a call to her sympathizers to go out and vote in the then imminent-June primary for the so-called “Forests Forever” Initiative (a non-violent mainstream effort designed to benefit the health and quality of life for all Californians), she quoted Bari as saying, “Fuck electoral politics; I’m going to get the FBI.” And from then until her death, Bari’s main political cause was her jihad against the FBI.
The jury last week agreed with the Bari and Cherney side that the FBI and OPD deliberately distorted evidence as part of a campaign to sideline the two activists because they represented a huge threat with their environmental campaign to block logging in the summer of l990. But one FBI source hooted that idea down, saying derisively, “Judi Bari was not a danger to the United States; she wasn’t even a blip on the radar. No lefties are. They’re rich kids who run home to their parents for lawyers the minute they’re arrested. I’ll tell you who’re the most dangerous people — it’s the right wing. I’ve lost three friends and colleagues over the years — and to whom? Right wingers. They’re the threat. The idea that we targeted these environmental lefties is ludicrous.”
The trial left unanswered the big question for many who have followed the case since the car bombing of the activist in l990 — particularly: who did the car bombing? If Bari wasn’t carrying the bomb knowingly who did the job? (The FBI source said it is virtually unheard of for a car bomb meant to damage a passenger to be placed inside the passenger compartment: “Car bombs are universally placed under the hood, outside the body or in the trunk. The very rare car bomb inside the car cabin is placed so far up and under the dash as to be totally invisible to the passenger.”
Bari’s bomb was under her seat. But the defense might have argued that just because it was under the seat does not rule out foreknowledge on the part of Bari. Might she conceal the bomb under her seat in case she were stopped on a traffic violation, however stupid and unlikely it is she’d drive around with a motion bomb under or behind her car seat? Either way, it’s not impossible. How stupid, after all, was the Weatherman fatal townhouse explosion in Greenwich Village during bomb-making several decades ago?)
The defense attorneys didn’t seem to hammer home this and other points. They were stymied by the ghosts of out-of-control police agencies in the past. But it still doesn’t account for the tepid and inadequate defense they put on in the current case. The Oakland police case was primarily based on a pass-the-buck to the FBI defense. Oakland cops testified that they relied on the “expert” advice of the FBI agents on the scene, primarily Special Agent Frank Doyle as to the bomb’s position in the car (behind the driver’s seat) and the matching of the nails in the trunk of Bari’s Suburu to those embedded in the bomb itself. The cops, argued their attorneys, were innocent of false arrest and the charges of the smear campaign afterwards since they relied on the FBI about the evidence.
Part of the plaintiff’s victory was based on the so-called smear campaign the defendants put out stating that Bari and Cherney were carrying the bomb with foreknowledge and were eco-terrorists based on their membership in Earth First. But even where their information was incorrect on the bomb’s placement in the car, it is customary for law enforcement to announce their theories of a case. Does this mean now that police et al will not be able to say anything about crimes for fear that if a jury trial eventually goes against them they will face huge civil suits?
Doyle vehemently denied he’d misled the Oakland police. But why, one wonders, was FBI attorney, Joe Sher so seemingly over-confident? More should have been made on that and on the relative different standards for arrest versus prosecution. Somehow, the over the top presentations of the soap opera attorneys for the plaintiffs had the desired affect. Sher et al, perhaps guilty of cocksure arrogance, declined to match mawkish question with ferocious objection — tit for judicial tat. The source close to the FBI claims there were complaints made to Sher about not objecting more. His reported response? He didn’t want to alienate the jury.
Both sides plan appeals, the FBI and OPD, for obvious reasons. Darryl Cherney, for one part of the original complaint (illegal search and seizure) which was set aside, the jury unable to reach a verdict.
But they were already gone, steeped as they were in old myths and paranoia about FBI and police conspiracies. Midway during the jury’s two-week plus deliberations, I hailed a senior judge I knew outside the Federal Building. Observing that I didn’t think they’d put on much of a defense against the flamboyant plaintiff attorneys, the judge, while eschewing any particular knowledge of the Earth First suit nevertheless observed, “They should have hired a local attorney instead of sending someone out from Washington.”
Indeed, the defendants should have gone with someone who knows the courtroom antics of their opponents, the jury proclivities and the local histories of the lefty wars against the police and FBI and vice versa.
Now that would have been something to watch.