Judi Bari - FBI Trial Delayed As New Evidence Emerges

by Nicholas Wilson

At a September 18 press conference, Cherney and attorney Bill Simpich disclosed the results of DNA testing of the envelope flaps and postage stamps from three letters: a 1989 police informant letter known as the "Argus" letter, a death threat letter sent to Bari a month before she was maimed in a 1990 car bomb attack, and the famous "Lord's Avenger" letter sent a few days after the bombing. The "Lord's Avenger" author takes credit for the bomb and gives accurate details about the bomb's components and design. The press release includes facsimiles of the letters, as well as the full DNA report.

The DNA tests showed that the envelopes of both the Argus letter and the death threat were sealed by the same man, whom the expert labeled "Unknown Male #2." That confirmed Bari's strong suspicion, based on typing similarities, that the two letters came from the same person, and she thought she knew who he was. Based on specific information about her in the Argus letter, and the fact that enclosed with it was a gag photo of her holding what looked like an Uzi submachine gun, Bari believed it was sent by Irv Sutley, a longtime Sonoma County Peace and Freedom Party activist and a gun buff.

Bari said that Sutley had suggested creating the gag photo, and had posed her holding the gun low. She later surmised that was so her Earth First! t-shirt showed clearly in the photo. Only Sutley, Cherney, and Bari's closest woman friend, who rented a room to Sutley, had access to the photo. It was mailed anonymously to local police with the Argus letter, which claimed that Earth First! had "recently begun automatic weapons training." The letter's author offered to inform on Bari and Earth First!, and said he would identify himself by the code name "Argus."

Edward T. Blake, D.Crim., of Forensic Science Associates of Richmond CA, was a pioneer in the use of DNA testing in criminal cases and is considered one of the leading experts in the field. In addition to the three mystery letters, Blake was given two envelopes mailed by Sutley from which to obtain a sample of his DNA. Blake found that Sutley's DNA was not an exact match for Unknown Male #2, but it was close enough that it was likely to be a male member of Sutley's immediate family. Blake's written report was careful to point out that it is possible that this degree of genetic similarity could occur by chance in two unrelated persons. But Blake's office has said there was a very high probability the two were closely related.

Cherney said he also consulted Berkeley forensic mathematician Dr. Charles H. Brenner, who told him that there is only a one-in-three-hundred chance to see this degree of similarity in unrelated people. That translates to a 99.67 percent probability that the person who sealed the Argus and death threat letters was related to Sutley, most likely his father or brother. Brenner later wavered on that exact probability figure, but concluded there would certainly be "probable cause" to do further DNA testing of Sutley family members.

Sutley denied sending the Argus letter when interviewed about the DNA results on KMUD radio (Redway, CA), adding that he has no children and that his father "was invalided in 1986" and died in 1998. His father lived in Mill Valley, CA, less than an hour's drive from the Glen Ellen, CA, P.O. Box that is Sutley's only known address. Richard Sutley, his brother, gave a Montana address in 1999 court documents.

In another surprise, the tests showed the Lord's Avenger letter envelope was sealed by a woman. The letter writer purports to be a fundamentalist Christian anti-abortionist, quoting Bible verses and clearly speaking from a paternalistic male point of view. There was a minor amount of DNA on the flap from an unknown male source, but Blake said that could have come from contamination by handling the envelope after it was received. The stamp yielded no DNA.

The unknown woman's DNA did not match that of the only known woman tested, Sutley's ex-wife, who runs a typing service and receives phone messages for Sutley. Bari could not have written the Lord's Avenger letter because it contained information only available after the bombing, when Bari was hospitalized with severe injuries and under constant police guard.

Capt. Kevin Broin of the Mendocino County Sheriff's Department confirmed that his department had received copies of the DNA evidence reports and other information from Cherney, and that the department had assigned a detective to investigate the matter. Broin also said that the FBI has jurisdiction over the Bari bombing case, and that after looking into the new evidence, the sheriff's department will forward the results to the FBI for further investigation. Sheriff Tony Craver said if the FBI doesn't follow up on it, his department will.

The pair were subjected to a sensational media smear fueled by a series of police claims of evidence linking them to building the bomb. After two-months of news reports hinting that indictments were coming soon, the Alameda County DA declined to file any charges against them, citing lack of evidence. But unlike the case of Richard Jewell, the security guard wrongly accused of the Atlanta Olympic park bombing, the FBI never retracted their allegations against Bari and Cherney, and many in the public were left believing that the activists were guilty. In depositions, FBI agents admitted that two searches of Bari's home had produced no evidence whatsoever connecting her to the bomb in her car.

A year after the bombing, when Bari and Cherney concluded that the FBI and police were making no effort to find the real bombers, the two filed a federal civil rights suit against the law enforcement officers for conspiracy to violate their Constitutional rights, charging that the motive for falsely arresting them and smearing them in the media as terrorist bombers was, in the lawsuit's words, to: "wrongfully disrupt, chill, punish, 'neutralize' and otherwise infringe upon their lawful activities on behalf of the environment in violation of the First Amendment."

Bari and Cherney filed their federal civil rights suit in May 1991, but trial has been delayed for over 11 years by a series of aggressive defense motions and appeals. Dennis Cunningham, who is once again Bari and Cherney's lead attorney, said approximately 30 pretrial motions have been made since the case began. Over 70 plaintiffs' witnesses have given depositions and there are over 20,000 pages of evidence, including FBI and Oakland Police files and deposition transcripts.

Judi Bari died of breast cancer on March 2, 1997, but Bari's estate and Cherney have continued to press the suit, saying their goal is not only to clear their names and that of Earth First! from the false charges made against them, but to expose the FBI's unconstitutional tactics against lawful political movements that threaten the status quo.

Stunned by the September 11 terror attack that happened on the very day that final pretrial papers were due to be filed in the case, Cunningham filed an emergency motion to delay the trial on the basis that it would be impossible for jurors to set aside their emotions and focus their attention on the complex evidence against the FBI and police. Furthermore, Cunningham argued, going ahead with the trial so soon after the attack would give the FBI an unfair advantage, since most citizens see them as the nation's main defense against terrorists in this new emergency, and so they would be unlikely to find fault with FBI agents. With no opposition from the FBI or Oakland, Judge Wilken chose April 8 as the new trial date, but she did not delay the existing deadlines for filing witness and exhibit lists, jury selection questions and other papers.

The court's main business at an August 31 hearing was to rule on motions "in limine" in which each side tries to block or limit evidence or witnesses which the other side wants to use. The Bari/Cherney side won a major victory when Wilken ruled the FBI can't use the testimony of an Air Force laboratory which experimented with pipe bombs by blowing up four cars at a cost of $120,000. They tried to recreate the bombing of Bari's car and show that the bomb could have been on the back seat floorboard, as the FBI claimed, and still blow a huge hole in the floorboard centered under the driver's seat. The location of the bomb is a crucial point, because that was the primary basis of the FBI's blaming Bari, saying she had to have seen it when she loaded her fiddle case and other items into the back seat before driving away. If the bomb was directly under her driver's seat, that's strong evidence that Bari was the bomb's intended target, because no one would knowingly drive with a live, motion-triggered shrapnel bomb under their own seat.

The Bari team pointed out that the Air Force lab failed in four tries to replicate the damage to her car. They argued that the staff scientists had no previous experience with pipe bombs, and that they used haphazard, unscientific procedures, including changing two or more variables from test to test. They called the Air Force report "junk science," and the judge agreed, ruling that the experimental bombings did not meet the standards required for expert testimony and the testimony was liable to unfairly prejudice the jury.

But Judge Wilken handed the FBI a major victory and narrowed the scope of the case when she barred plaintiffs from putting on evidence of the FBI's long history of political repression against progressive movements and activists, beginning with the Palmer raids of 1919-20 and continuing through the infamous COINTELPRO campaigns of the 1960s and early '70s, and going on through at least the '80s with spying and use of covert tactics against the domestic opponents of U.S. Central America policy (a cause Bari was active in). The ruling blocked testimony by noted historian Howard Zinn, who had agreed to serve as an expert witness. The decision was based on case law saying that such history can be used as evidence of a "pattern and practice" of wrongdoing when state and municipal police agencies are sued, but it can't be used against the FBI because the Bureau itself is not -- and cannot be -- a defendant in this suit.

Cunningham explained after court that the FBI itself can't be sued because it is a branch of the U.S. Government, which is immune from being sued under the doctrine of sovereign immunity. This comes from English law, which assumes that the king can do no wrong, and so can't be sued. Only individual FBI agents can be sued for violation of Constitutional rights. Cunningham added that Richard Held was the only defendant with a provable history of COINTELPRO involvement, so his dismissal from the case in 1997 was the root cause of losing Zinn's testimony and other evidence of the FBI's past misdeeds. There is insufficient evidence linking the individual FBI agents remaining in the case to the FBI's past repressive actions, so that kind of evidence can't be used against them.

Before the September 11 terror attack made it even more of a problem, Cunningham told the Monitor in a July interview that an extra hurdle the plaintiffs must overcome is the public's perception of FBI agents as highly professional and ethical. "It's incumbent on us to establish a motive," he said. "Why would the FBI do this? Why would they pretend to think these people were criminals when they were victims? And the answer is, that's what they do. That's what they did to Geronimo Pratt. That's what they did to the Black Panther Party. That's what they did, going back, the whole time of their existence." Cunningham said he was "disappointed that the court has not been willing to consider opening up the scope of the case and bringing back the FBI supervisors -- and particularly Richard Held -- that we think were basically responsible for allowing this to happen."

Judge Wilken also ruled August 31 that the plaintiffs are limited in how much they can tell the jury about the FBI's Operation THERMCON, a sting operation targeting Earth First! co-founder Dave Foreman just prior to the Bari bombing. That history can be used only to the extent that FBI defendants in the Bari case also worked on the THERMCON case, and some of them did. In that case an FBI provocateur tried to persuade four Arizona desert activists -- only one of whom had any affiliation with Earth First! -- to use the explosive incendiary thermite to take out a nuclear power plant transmission line. The activists said no to explosives, but they went along with the infiltrator's urging to use an acetylene torch to take down a power pole related to desert development. It was a trap; they were busted in the act, and Foreman, who was not directly involved, eventually copped to a conspiracy charge for supplying them $100 for expenses. The FBI infiltrator accidentally recorded himself telling other agents that the only purpose of the operation was to "pop" Foreman in order to "send a message." That showed that the FBI's goal was to neutralize Earth First! by trying to associate them with explosives in the public mind, and to discredit the movement's best known leader.

Anderson, Moore and their group presented their theory to Mendocino DA Norman Vroman on the ninth anniversary of the bombing in 1999, and they petitioned him to open a new investigation focusing on their suspect. On local radio the same day, Vroman said that the case they presented him was not factual, but instead was "conjecture, innuendo, speculation (and) guesses." A few days later the Ukiah Daily Journal asked Vroman if he was pursuing a new investigation of the Bari bombing, and Vroman answered, "I am not investigating anything. I have nothing to investigate and you can quote me on that." Nevertheless, Anderson has continued to obsessively promote his theory and to disparage Bari, her associates, her lawyers and her lawsuit not only in his own newspaper but in letters to the editors of other papers, on radio talk shows and in a series of speaking engagements which also featured Irv Sutley. Judge Wilken denied Bari/Cherney motions to keep out of evidence the previously mentioned gag photo of Bari holding Irv Sutley's "Uzi," and "one small ziplock bag with green leafy material inside" found in Bari's bombed car. The photo will be allowed only if police can show it influenced their decision to arrest Bari and Cherney, but according to the plaintiffs, there is no mention of the photo in the police files until two months after the bombing. Sher contended that because FBI agents did not go after Bari for marijuana, it was evidence they weren't trying to set her up. As Cherney said after court, "they want to use (the baggie) to show that they are such nice people that they didn't attempt to accuse Judi Bari of being not only a bomber but a dope-smoking bomber."

Bari and Cherney will be allowed to present faked Earth First! press releases advocating sabotage and violence, which timber companies and the Hill & Knowlton PR firm distributed in timber communities and to the metropolitan media in an effort to portray Earth First! as violent extremists. They also can present written death threats and other evidence and leads which the FBI failed to investigate.

They can bring in witnesses to the police raid and search of the Seeds of Peace house by Berkeley Police at the request of Oakland Police Lt. Sims. Seeds of Peace was a communal group which offered to feed the masses of Redwood Summer demonstrators, and Bari and Cherney had gone to meet with them the night before the bombing. After the bombing, while TV cameras watched, police held residents at gunpoint for hours while they ransacked the house, supposedly looking for a bomb factory. Also on TV, a police bomb squad blew up a supposedly suspicious box from Cherney's van, but it turned out to be his collection of music cassette tapes. Bari and Cherney point to the televised raid as evidence police were trying to create sensational media coverage portraying the peaceful activists as dangerous terrorists.

Judge Wilken said the trial will be limited to six weeks, and there will be a jury of six plus two alternates. She ruled that plaintiffs can show jurors Judi Bari's actual bombed car. It will be brought to a parking garage across the street from the courthouse for the convenience of the jury. Discovery will be allowed to continue until December 17 so that depositions can be taken of witnesses newly identified on the final witness and exhibit lists recently filed by both sides. But the judge said she will not allow any more witnesses to be added.

At the September 21 pretrial conference hearing, the last one for a while, Sher made oral request for leave to file summary judgment motion for one of the FBI defendants on the grounds of qualified immunity. Cunningham objected, saying Wilken and the appeals court had already ruled out any further immunity claims, and that he can show Conway's close involvement in the case. The judge agreed, denying Sher's request. Cunningham commented after court that if she had allowed Sher to file the motion it would have opened the door to another two year delay if the motion were denied and then appealed.