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After 12 Years, Judi Bari Vs. FBI Trial Begins

by Nicholas Wilson

on Judi Bari case
Judi Bari rally
Over 500 supporters of Earth First! and the late Judi Bari rallied on the opening day of her trial
Over five hundred supporters rallied outside the Oakland Federal Courthouse on April 8, celebrating the kickoff of the long- delayed trial of the FBI and Oakland Police in the landmark civil rights suit brought by Earth First! activists Judi Bari and Darryl Cherney. But the celebrated lead plaintiff wasn't there. Bari -- who spent the last seven years of her life preparing for this day -- died of breast cancer in 1997.

FBI agents and Oakland Police officers are charged with false arrest, illegal search and seizure, and conspiracy to violate Bari's and Cherney's First Amendment right to free speech by smearing them and the Earth First! environmental movement. The trial is expected to end about May 24, the 12th anniversary of the bombing.

Although Bari only attended in spirit, her family and closest friends stood in for her in the Oakland courtroom. Daughter Lisa -- nine years old at the time of the bombing and now 21 and a recent graduate of UC/Berkeley -- sat with the lawyers representing her late mother. Also in court was Bari's longtime friend Darlene Comingore, executor of Bari's estate, who takes her place as plaintiff. Bari's organizing partner Darryl Cherney, freshly coifed and dressed in coat and tie, was also in court as the co-plaintiff.

Many in the legal team also had a personal connection to Bari. The team's main paralegal is Bari's protege Alicia Littletree, who began her activist career as a teenaged Earth First! tree-sitter. Dennis Cunningham is the lead lawyer, and has been on the case since January 1992. He represented the family of Chicago Black Panther leader Fred Hampton, slain by Chicago Police at the instigation of the FBI, and after years of litigation won a substantial settlement. Also among the five lawyers at their table is nationally known trial attorney J. Tony Serra, who says he is committed to full participation in the current trial. Serra has conducted thousands of jury trials in state and federal criminal cases.

The jury is seated
By 11:30AM Tuesday, there were ten jurors and two alternates consisting of nine women and three men selected from a pool of about 100. The group reflects the Bay Area's diversity in age, race and ethnicity.

None of the jury seemed eager to be part of a jury on a six-week trial that probably would be spread over two months -- two jurors made belated hardship pleas at the end of their first day after realizing what they were in for (they were not allowed to withdraw). Federal rules require a minimum of six jurors in civil cases unless both parties agree to fewer; District Judge Claudia Wilken said experience has shown that about one juror drops out each week, so twelve was the minimum number needed for a six week trial. The federal defense attorney refused to accept fewer than six jurors.

Once the jury was seated, Judge Wilken briefly summarized the case. She said Bari was severely injured by the May 24, 1990 pipe bomb explosion and Cherney less so. Authorities said the bomb had been visible on the back seat floorboard, and therefore Bari and Cherney must have been knowingly carrying it. The pair were quickly arrested and booked for possessing and transporting explosives, and Bari remained under guard in Highland Hospital, while Cherney was released on bail after a couple of days.

Wilken told the jury that the District Attorney delayed arraigning the pair for several weeks, saying he was awaiting results from FBI crime lab analysis of the bomb scene evidence. Then on July 19, the DA announced he would not file charges due to lack of evidence. The FBI continued to say the pair were the only suspects, and their investigation continued. In March 1993, the FBI closed the case, with no charges filed.

Both plaintiffs were spokespeople for Earth First!, an association or movement that held nonviolent demonstrations, particularly against the logging industry in Northern California. Bari and Cherney were organizers for a planned Redwood Summer of nonviolent demonstrations calling attention to and attempting to slow what they considered an unsustainable rate of logging of redwoods on private lands. The plaintiffs say their arrests were intended to discredit them and their movement by false charges, and claim they were smeared in the press as terrorists. The defendants deny the allegations, and claim their actions were reasonable. The FBI and Oakland Police Department as entities are not on trial in this case, but the City of Oakland may be liable under state law for the actions of city employees.

Opening arguments
On to opening statements, lead attorney Cunningham told the jury that FBI agents and Oakland Police officers knew Bari and fellow activist Darryl Cherney were the victims and not the perpetrators of the car bombing -- but they arrested them anyway. "The bomb struck at them and then law enforcement struck at them," said Cunningham.

Cunningham said Earth First! was a pro-environmental movement of determined activists who were willing to do non-violent civil disobedience to block environmental destruction. The responding officers knew Bari and Cherney were Earth First! When the FBI came on the scene they told Sgt. Sitterud, the lead Oakland Police officer in charge of the scene, that the FBI knew these suspects and they were the kind of people who would carry a bomb. That set the tone for what happened.

"Headlines would portray Earth First! as dangerous bombers to be feared," Cunningham added. "It was a classic frame-up based on false, fabricated evidence cooked up on the spot and in later days."

The police "took advantage of a golden opportunity to smear Earth First!," Cunningham said. "It was an attempt to neutralize the work they were doing. The smear campaign had a drastic effect over time on the public and its perception of the image and reputation of Earth First!."

As for the Oakland Police, Cunningham told jurors they were willing participants. "They jumped right in. They thought it was a fine idea. They took on the burden of making the arrests. They were the front for a false case, with the FBI the driving force in the background."

The so-called investigation they conducted was a sham, Cunningham said. The case was never brought in court. The bombing happened on the Thursday before Memorial Day weekend. The D.A. appeared in court the following Tuesday and delayed the arraignment saying he was waiting for results of testing from the FBI crime lab. He delayed it twice more, for two weeks each time, and then, seven weeks after the bombing, filed no charges. Yet the FBI continued investigating the plaintiffs, and supposedly the bombing.

Background of Redwood Summer
Cunningham held the jury spellbound with his imagery of events leading to Redwood Summer. Earth First! started in the early '80s when a small group announced they would do what was necessary to stop environmental harm, as long as they caused no harm to people or animals. They said they would do tree spiking, and put up a warning sign saying the trees are spiked, don't cut them. These sensational tactics got a lot of media attention.

Judi Bari had a labor organizing background. She led a retail clerks' union strike, and later a postal workers wildcat strike. She had a strong critique of the status quo, and had established herself as a dissenter, an advocate of change. Darryl and Judi had a similar approach, and they became lovers and organizing partners. They always played music at demonstrations and rallies. They organized tree-sits to prevent cutting. You may have heard of a person who stayed up two years to save one tree. Judi and Darryl would organize other activists, and they supported passing laws to prevent bad logging, which harmed soils and streams and fish. They brought pressure for change and sought to impede the loggers.

Judi said that the corporations were the ones we are against, not the loggers. We need to reach out to the timber workers, because the corporations are going to cut and run, and there will be no more jobs left. She had begun to make contacts with workers and within the industry. That may have been what made her a target, because she was effective.

One of the things she said was that monkeywrenching had to go. The movement had to be strictly non-violent. Tree spiking threatened loggers directly. We should not do it. "We've gotta turn that image around, reassure people that we're not about that," she said. It didn't matter to her what Earth First!'s founders did or said.

Redwood Summer was explicitly modeled after Mississippi Freedom Summer of the civil rights movement. Nonviolence training was required of activists who wanted to participate. They would teach people how to be nonviolent in the face of violence. Earth First!ers had been threatened and beat up by loggers.

After Louisiana Pacific announced the closure of another sawmill due to lack of logs, Judi Bari and Darryl Cherney went to a Mendocino County Board of Supervisors meeting together with timber workers. They urged the county to use eminent domain powers to seize Louisiana Pacific's lands and turn them over to the workers. That made her opponents aware of her growing influence and powers. Immediately there were anonymous written death threats, saying things like "Get out and go back where you came from. You won't get a second chance." There was a photo of Judi at that Board of Supervisors meeting cut out of the local newspaper and with the cross hairs of a rifle scope drawn over her face, and it was stapled to the front door of the Mendocino Environmental Center, which Judi worked out of. There were up to twelve threats on paper, and there were copies of those threats in Judi's car when it was bombed.

There were also fake press releases from Earth First! urging violence and sabotage, got up to discredit Earth First! and turn workers against them. They were passed out to workers at sawmills and at public places in lumber towns. It was easy to show they were fake. One of them spelled Darryl wrong. One of them was supposedly from Arcata Earth First!, and there is no group by that name. These fake documents caused anger and hostility to Earth First!

Judi Bari went to the Supervisors again to talk about nonviolence, and she showed the cross-hairs death threat to them. One supervisor, a timber supporter, told her "You brought it on yourself, Judi."

There was an atmosphere of hostility and anger that gave rise to those death threats. But the bomb investigators ignored all evidence that Judi Bari and Darryl Cherney were victims and tried to frame them as perpetrators.

The FBI and Oakland Police
Justice Department attorney Joseph Sher presented an opposite view of the six FBI agent defendants, portraying them as dedicated professionals protecting citizens against foreign and domestic terrorists. "You won't hear any evidence that any of these people had any hostility to preserving the environment," Sher said. "You won't hear any evidence that the information the FBI shared with the Oakland police was false," he added, "and you won't hear any evidence that any of these six defendants suppressed anyone's free speech."

Sher told the jury that their job was much like doing a very complicated jigsaw puzzle, only instead of having only one picture on the box to guide them, they had several different pictures. The witness testimony and other evidence that would be presented during the trial were the puzzle pieces, and It was the jury's job, Sher said, to decide which picture the pieces fit into.

Oakland city attorney Maria Bee, representing the Oakland police defendants, told the jury in her opening statement that what the officers did was reasonable and proper, given what the FBI told them. She said the officers deferred to the FBI's greater experience in bombing and terrorism matters, and that it was right for them to rely on the FBI's information.

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Albion Monitor April 15 2002 (

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