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Jury Awards $4.4 Million Damages to Bari and Cherney

by Nicholas Wilson

report on Judi Bari vs. FBI trial
Judi Bari trial verdict
Media mob outside the Oakland Federal Courthouse after the verdict in the Judi Bari vs. FBI suit June 11, 2002

PHOTO: © 2002 Nicholas Wilson

In a stunning vindication for Earth First! organizers Judi Bari and Darryl Cherney, a Bay Area jury awarded the pair $4.4 million in damages from three FBI agents and three Oakland police officers. The defendants were accused of fabricating and ignoring evidence about the car bomb attack that nearly killed Bari in 1990, framing the pair for the bombing and ruining their reputations in an attempt to crush the Earth First! radical environmental movement.

Eighty percent of the damages were for violation of free speech rights under the First Amendment, validating Bari and Cherney's longstanding claim that they were targeted for false charges because of their political activism for the redwoods. The balance of the damages were for the Fourth Amendment violations of false arrest and unlawful search.

The multiple verdicts came on the 17th day of deliberations following a six-week trial. It was more than 12 years after the May 24, 1990 bomb explosion in Bari's car in Oakland, California. Bari and Cherney were on tour recruiting for Redwood Summer, their planned campaign of nonviolent protests against corporate logging of California's north coast forests. They were quickly arrested and accused by Oakland police and FBI of knowingly transporting the bomb that nearly killed them, and of intending to use it for a terrorist attack. Their homes were searched and sensational reports of the charges made national news for weeks afterward.

"The jury exonerated us," said Cherney. "They found the FBI to be the ones in violation of the law. The outcome was even more significant because we won this case with our attorneys' hands tied behind their backs and the jury blindfolded by the judge's ruling that we couldn't talk about the FBI's long, documented history of targeting dissenting political groups for disruption and neutralization."

The American public needs to understand that the FBI can't be trusted. Ten jurors got a good, hard look at the FBI and they didn't like what they saw. Earth First! is known for blockading things like clearcuts. Today we blockaded the FBI from clearcutting the Constitution.

- Darryl Cherney

The outcome was also significant in light of current moves in Washington to remove restrictions on the FBI to prevent terrorist attacks. Nkechi Taifa of the faculty of Howard University School of Law said in a press release from the Institute for Public Accuracy: "This jury verdict is yet another indication of what is in store should Ashcroft's plans to loosen the longstanding Levi guidelines become a reality. The guidelines were implemented to curb FBI abuses uncovered during the Senate investigations of the mid-'70s. The 1990 Bari bomb fiasco occurred despite the existence of these clear guidelines prohibiting such outrageous activity by the FBI. What will be the limits of governmental abuse if there are no guidelines in place?"

Bari died of cancer in 1997, but her estate took her place as co-plaintiff in the case. Darlene Comingore, executor of the estate and Bari's longtime friend, was in court to hear the verdicts announced. Bari's young friend and protege Alicia Littletree, the paralegal for the plaintiffs, placed Bari's ashes in the center of the counsel table in a cloth-covered box topped with flowers.

details about damage awards
Judge Wilken admonished the audience -- packed mostly with Bari and Cherney supporters -- not to show any reaction of approval or disapproval as the verdicts were read, or she would have them ejected. There was silence except for Wilken's voice reading aloud the 21-page jury verdict form while the plaintiffs lawyer's smiles grew wider and the attorneys for the FBI and Oakland police sagged lower and lower in their chairs. Later, with the jury gone and the judge leaving the courtroom, there was an eruption of jubilant cheers of congratulations and joyous Earth First! wolf-howls.

The eight-woman, two-man jury of mostly white-collar Bay Area professionals found six of the seven remaining defendants liable. They found FBI agent Stockton Buck not liable for any of the claims, and the judge had dismissed FBI agents John Conway and Walter Hemje from the case just before it went to the jury. The jury also found no violation of Bari's rights in a second search of her home in late June, 1990, even though the warrant for that search was based in part on the trumped-up affidavit for the first search which the jury found unlawful. The jury found no conspiracy to violate First Amendment rights, which seemed oddly inconsistent with their findings that five defendants violated Bari's First Amendment rights, and four violated Cherney's.

The jury was hung on the claim of false arrest of Darryl Cherney, and they specified that they were undecided as to each one of the six defendants on that claim, making all but one of them subject to retrial on that issue. OPD Sgt. Robert Chenault was not subject to retrial because the jurors found that a reasonable officer in the same position could have believed his action was lawful, which means Chenault is immune from being sued on that claim. Chenault was the only defendant present in court for the verdict. Of the six defendants held liable, he owed the least money at $72,000.

Three defendants, former OPD Lt. Mike Sims and retired FBI agents John Reikes and Frank Doyle, accounted for all of the $1,950,000 in punitive damages awarded, and for 93 percent of the total damages. (See the sidebar for details of each defendant's violations and liabilities.)

Martha Bari's statement on behalf of her family
There were several mysteries in the verdict. How could the jurors decide that Bari's arrest was unlawful but be unable to reach the same conclusion about Cherney's arrest? Why did they find the second search of Bari's home lawful? Why did deliberations last so unusually long? Why didn't they find the officers and agents conspired to do what they did? Judge Wilken tried to keep the answers to those and other questions mysterious by taking the extraordinary step of ordering jurors not to talk about the case or their deliberations to anyone but immediate family. But at least one juror apparently violated the gag order by talking to Mike Geniella of the Santa Rosa Press Democrat on condition of anonymity, according to a story published on June 14.

The jury is the conscience of the community. And in this case they took the high road. They valued constitutional rights above the fear factor since September 11. This was a case of FBI falsity, perjury, and cover-up, and that can not be tolerated. The jury showed the rest of America that even in the face of brutal terrorism we cannot discard the very civil liberties that make the country great. This verdict encourages people who have been wronged to step forward and not be fearful.

-Tony Serra

The case was not even close. "There was always a majority willing to return verdicts in favor of the plaintiffs. There was never a chance that these officers were going to be cleared," the juror told Geniella. "There were too many lies and manipulation of the evidence. Law enforcement isn't supposed to do that. They should rely on the truth to make a case."

The jury resisted coming to a quick verdict by going with their initial impression. They meticulously reviewed the evidence and puzzled out the conflicting testimony by FBI and OPD witnesses. It took a lot of negotiating and a lot of compromising to agree on damage amounts and apportion them to individual defendants.

The jury sent a note to the judge late Monday afternoon June 10, saying they had reached a unanimous verdict on most claims, but were still undecided on a few. The judge accepted a signed partial verdict form from the jury foreperson, but after reading it she told them she would ask them to come back in the morning for a final try to resolve the rest of the issues, but that it would be their last day whether they did or not.

When they returned Tuesday morning, they spent nearly three hours more, and were able to resolve two more issues, leaving only Cherney's false arrest claim undecided. Each juror affirmed that their verdict was final, and that further deliberations were unlikely to be productive.

Three of the defendants -- Reikes, Doyle and Sims -- bore the brunt of the damages. "Those three shaped the events surrounding this case, and they were wrong. No one has any doubt about that," the juror told the Press Democrat.

Judge Wilken said the reasons she placed a gag order on the jurors included the likely appeals, the potential retrial of the hung claim of Cherney's false arrest, and defense allegations that plaintiffs' lawyers tried to improperly influence the jury by speaking at a rally outside the courthouse at a time when jurors would be leaving and might overhear their comments about the case.

After the verdicts were read, the defendants' lawyers asked the judge to question jurors about what they had seen and heard of the rally and speeches, and whether it had affected their subsequent deliberations. Judge Wilken sent all but one of the jurors out of the courtroom and then questioned them one by one. Not one said they had been affected in the slightest. None said they had paused to listen. One juror said she had recognized a voice on the loudspeaker as Tony Serra's, but she didn't hear a single word he said. None of the other jurors heard anything. Judge Wilken asked if they had discussed the rally among themselves when they came back to deliberate on the Tuesday after Memorial Day. Several said they had briefly talked about the giant puppet figure of Judi Bari, but it didn't affect their deliberations. The last juror questioned -- Ms. Caputo, who had taken over 10 legal pads full of notes during the trial -- said the jurors were "shocked" to learn of the defense motion to dismiss the case, because the rally was so "insignificant."

Defense still Accusing
In her video deposition played for the jury, Judi Bari said "I certainly felt some bitterness when (Atlanta Olympic Park guard) Richard Jewell was given a public exoneration. ... I feel a great injustice." Cherney too said he was angry at not being cleared after so many years of accusation.

Not only were Bari and Cherney never exonerated by Oakland or the FBI, both the Oakland and federal attorneys tried hard to persuade the jury, 12 years after the events of 1990, that Earth First! was really a violent group, and that Bari and Cherney advocated violence, including sabotage and tree-spiking that could potentially harm loggers and sawmill workers. They stubbornly called witnesses to try to show that the bomb really was in the back seat floorboard, where officers said it was at the time, when it was clear to the jury from their own examination of the bombed car and from the testimony of the FBI's lab expert, David R. Williams, that it was under the seat.

Special Agent Walter Hemje was asked in testimony whether the FBI had any evidence at all connecting Bari or Cherney to the bomb. "Not any physical evidence," he replied. What other kind might there be, he was asked. "Source evidence," Hemje replied, referring to informant tips. Well, was there any source evidence tying Judi Bari or Darryl Cherney to this bombing? "No," replied Hemje. Therefore his testimony was that the FBI had no evidence whatsoever, of any kind, tying Bari or Cherney to the bomb.

This case needs to be part of the context in the discussion about FBI powers. It shows that the FBI has been looking at activists and tampering with their protected activities. They've been doing it for decades, and we've got to put a stop to it. Don't give the FBI more power to spy on people, because instead of fighting terrorism they go after activists.

- Alicia Littletree

Attorney Bob Bloom said he understood that this was only the third jury trial in a civil rights case against the FBI, and the damages awarded were the highest yet. In the 1981 Hobson case, a jury awarded $711,000 in a civil rights case for harassment of activists by the FBI and Washington, DC police, and the damages were later reduced to $46,000. The family of Black Panther leader Fred Hampton, killed by Chicago Police during an FBI-instigated raid in 1969, ultimately received a $1.85 million settlement when the case was appealed after the jury hung and the judge entered a directed verdict for defendants. Dennis Cunningham was the attorney for the Hampton family in that case. The FBI paid a $3.1 million settlement to the family of Vicky Weaver, who was shot by an FBI sharpshooter at Ruby Ridge, Idaho.

It is unlikely that any of the defendants will have to pay any of the damages against them. The agencies that employed them must pay all compensatory damages. California law provides that public agencies, meaning the public, can not pay punitive damages, according to attorneys for Bari and Cherney, but usually their unions or professional associations will cover it. Attorney Bill Simpich said he liked the idea that the police officers "will have to pass the hat" to pay the punitive damages.

Appeals and Post-Trial Motions
Dennis Cunningham and Darlene Comingore
Lead counsel Dennis Cunningham and Judi Bari estate executor Darlene Comingore rest and talk outside the Oakland Federal Courthouse after learning the verdict in the Judi Bari vs. FBI suit June 11, 2002

PHOTO © 2002 Nicholas Wilson

Cherney commented that if Judi Bari were alive "she would be exceedingly pleased at this victory against the FBI. But she would also want us to appeal the dismissal of Special Agent Richard Held and some of the other FBI top brass who were let out of the case." Held and several other FBI supervisors were let out of the case by Judge Wilken in 1997, and Cunningham said then that the only way to reverse those dismissals was to wait for the trial to end, then appeal to the 9th Circuit Court of Appeals.

It's really beyond our wildest dreams. The jury got it that they violated our rights to the tune of $4.4 million in damages. We hope the FBI and Oakland and all the police forces out there that think they can violate people's rights and get away with it are listening because the people of the state of California and Oakland today said, "No, you can't. You can't get away with it."'

- Darlene Comingore

Attorneys for Oakland and the federal defendants are also planning appeals and other post-trial tactics, as soon as they figure out what hit them. Justice Department Joe Sher said he was still trying to make sense of the verdict, trying to "fit the pieces in the puzzle." Oakland attorney Maria Bee told reporters that she was "disappointed" at the verdict, saying she thought it was inconsistent with the evidence, and that the Oakland officers' actions in the case were reasonable. She said she expected to file a motion to set aside the verdict and to look at all available options.

The plaintiffs' legal costs must also be paid by the defendants, and after 11 years of litigation, that will likely be a hefty sum. But no money will change hands any time soon. The judgments are not final until all appeals are resolved, and that will be at least two or three years, and possibly much longer, given the federal attorney's proven record of delaying tactics.

Media Then and Now
Although the long-awaited verdict got big play in the Bay Area media for a couple of days, there was scant coverage on the national level, in contrast to the huge and sustained national coverage of the false charges against Bari and Cherney in 1990. There was a brief story buried on an inside page of the New York Times, when in 1990 the story was headlined on the front page. One reason for the lack of national coverage was offered by a panel of journalists on KQED TV's "This Week in Northern California" on June 14. They said it was likely due to the many years that had passed since the bombing. If so, then Joe Sher's tactic of dragging out the case and keeping it from coming to trial as long as possible did what it was supposed to do in terms of the eventual impact if he lost the case.

However, the story was of enough importance to merit editorials in the San Francisco Chronicle and the San Jose Mercury-News and mention by columnist Rob Morse of the Chronicle. In a piece satirizing the FBI's current recruitment ads, Morse wrote that he wanted to be "a columnist for the FBI," making a play on the McCarthy-era movie "I Was a Communist for the FBI." Morse wrote, "I want to learn how to destroy people's careers and reputations, the way the FBI did with Earth First's Judi Bari and former UC President Clark Kerr, as shown in Seth Rosenfeld's eye-opening piece in last Sunday's Chronicle."

Ashcroft is doing precisely the wrong thing to abandon the Levi guidelines and let the FBI go after dissent with a free hand. It's clear that their intention is not about fighting terrorism, it's about suppressing dissent. That's what the FBI has always been about. Hopefully it will make Congress think twice about giving them a free hand.

- Dennis Cunningham

The Chronicle editorialist said the verdict "reminds law enforcement advocates that Americans are not panicked by the threat of terrorism into abandoning their civil rights. ... The overzealous pursuit of (Bari and Cherney) was unacceptable -- and unconstitutional -- regardless of what one thinks of the activists' politics."

The Mercury-News said the lesson in the Earth First! verdict was that "with broader power comes the possibility of abuse by government agencies. ... The real lesson here isn't just that environmentalists aren't terrorists; it's that people who challenge the status quo are the most likely to see their civil rights threatened. In a democracy, those people are important even when they're making us mighty uncomfortable. ... The next gadflies on the radar screen probably won't be white environmentalists singing folk songs. They may be people of color with thick accents. But Tuesday's verdict will protect their civil rights equally well, and for equally good reasons."

This article was updated June 15, 2002

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