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Verdicts Expected as Jury Begins Fourth Week of Deliberations

by Nicholas Wilson

report on Judi Bari vs. FBI trial
There were fresh signs that verdicts were imminent in the Bari vs. FBI civil rights trial, as the jury finished 15 days of deliberations Friday, June 7. Darryl Cherney sent out an email Sunday asking supporters to come stand vigil at the Oakland Federal Courthouse on Monday, saying many jury watchers feel a verdict is likely on Monday June 10, or very soon thereafter.

On the previous Monday, the jury sent questions to Judge Wilken posing a hypothetical situation where they were unanimous on some claims but undecided on others, and asking for clarification about their options. They wanted to know if they reached unanimous verdicts on a claim as to six out of seven defendants, would that be a hung jury such that the six they were unanimous on would be subject to retrial. The answer was no, the only defendants or claims subject to potential retrial would be those the jury was undecided on.

The judge again offered the jury a revised verdict form allowing them to deliver a partial verdict by specifying which claims they can't reach verdicts on. Then, on Friday, the jury sent a note to the judge requesting the revised form, and it was given to them just minutes before they left for the weekend. Deliberations will resume Monday, June 10, which will be the start of their fourth week.

Attorneys on both sides of the case said it was one of the longest jury deliberations in memory. There has been day-by-day speculation that a verdict was imminent, but all have proved incorrect.

Jurors have submitted written questions to the judge several times. Each time, the attorneys for both sides are called into court to state their position on what the answer to the question should be. If they can't agree, the judge hears their arguments and then makes a decision, calls the jury into the room and gives them an answer.

On Tuesday, May 21, The jury requested a bottle of white-out correction fluid. This led to excited speculation that the jury was already near a verdict, because the foreperson must fill in the blanks on an official verdict form. So the white-out might mean they needed to make corrections or changes to that form.

Late on May 22 a juror asked: "When considering probable cause for an arrest are we to consider only the moment of arrest, or can we consider whether there was/wasn't probable cause at any time during the arrest? For example, if we conclude that initially there was probable cause but later after obtaining additional info there wasn't probable cause to 'maintain' the arrest and the parties should have been released but were not, is this a violation of the 4th Amendment?" The judge heard arguments first thing the next morning. She took the position that an arrest takes place at a moment in time, and if a reasonable officer reasonably believed he had probable cause at the moment of arrest, it was not a false arrest even if the officer learned 10 minutes later that there was no probable cause after all. Judge Wilken decided to tell the jurors to rely on the written instructions already given. According to attorney Serra, the answer to the example given was clearly yes. The Fourth Amendment does not mention arrest per se, but speaks generally about search and seizure. Arrest is seizure of the person, Serra said, and clearly it has a duration.

On Thursday, May 23, a juror requested copies of two Penal Code sections whose numbers had been written on the arrest forms and other documents in the case. One was P.C. Section 12355, which forbids possession of a booby trap. That number was later crossed out on the forms and replaced with the section forbidding transportation of an explosive device. Plaintiffs believe citing the booby trap section just three hours after the explosion, at 3:00 PM, when Bari and Cherney's arrests were recorded, shows police knew the bomb was triggered by a motion-sensing device. That would lead a reasonable investigator to conclude the bomb was intended to explode only when the vehicle was being driven, and that Bari was therefore the target of the bomb rather than knowingly carrying a live, armed, fragmentation bomb with a motion-trigger under her own car seat. Again the judge told the jurors to rely on her written instructions and their memories and notes of testimony during the trial. The jurors reacted with a mixture of puzzlement, frustration and "I told you she wouldn't tell us" looks.

On Tuesday, May 28, when jurors returned after the Memorial Day holiday, they asked a question that indicated they had decided some of the claims: "If there are one or more claims that we cannot agree on, can we still submit a unanimous verdict on all other claims, or does this constitute a 'hung' jury? In other words, do we have to reach a unanimous decision on every claim?"

Both sides agreed that a partial verdict is permitted. Judge Wilken called the jury in and told that them when the time comes if they can't agree on all claims a partial verdict is possible, but she did not believe the time had come yet. She asked them to keep trying to resolve the remaining issues, because any claims they can't decide on would be considered hung and eligible for a new trial. One of the jurors wanted to know if that meant this same jury would have to sit through a second trial on hung claims. The judge chuckled and said no, it would be a new jury.

There were no further questions the rest of the week as the jury continued working on their very complex task.

Analysis of the complicated 18-page verdict form (available online at leads to an interesting conclusion. There is reason to believe that the jury will find substantially in Bari and Cherney's favor. It is inconceivable that they would take so much time if they were simply going to let the defendants off -- they could have done that in a day or two, with only seven unanimous votes required. Finding in favor of the plaintiffs requires much more work and time, because damages would likely be awarded to each plaintiff for each claim, and then the damages must be apportioned to each of the defendants. That would require up to 167 unanimous decisions! We know the jury could not be completely deadlocked, or they would have told the judge. Therefore it is reasonable to assume that they are working on some of those 167 decisions required to favor the plaintiffs. Time will tell.

Dennis Cunningham, lead counsel for Bari and Cherney, said it's impossible to know what the jury is up to. All speculations thus far have been wrong. He said his motto is "Good things are worth waiting for."

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Albion Monitor June 2 2002 - updated June 9, 2002 (

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