"I Relied On The FBI -- They Were Experts"

by Nicholas Wilson

Sitterud was the first of the nine defendants called to the witness stand. As chief investigating officer he had been responsible for assigning and supervising other OPD personnel on the scene and during the subsequent investigation, and for the crucial paperwork that documented everything.

When he got to the scene the FBI agents already there told him about the people who were in the bombed car. Based on what the FBI told him, Sitterud soon formed an opinion about the cause of the explosion. In his log he wrote, "injured persons are radical activists, Earth First! leaders suspected of sabotage of power poles in Santa Cruz."

Sitterud had training in bomb investigation, but did not conduct his own bomb investigation, aside from looking at the ruined car and noting that a bomb had exploded inside it. "I was relying on others," he said. "I was busy; they were experts; I wasn't going to do my own investigation." Cunningham pointed out that's not what Sitterud said in deposition, when he said that at the scene, "It looked pretty obvious that the bomb was behind the drivers' seat. Looked like it would have been right on the floor in the rear seat area."

Sitterud claimed he kept an open mind, and didn't decide to arrest until about 3AM the next day. Cunningham challenged that, saying that Officer Slivinski testified that Cherney was in custody at 3PM and Bari's arrest form also showed 3PM as the time of her arrest. Cherney's bail had been set at $3,000 early that evening.

In a discussion outside of court, Cunningham explained to reporters that arrests require probable cause based on evidence. Both Cherney and Bari were held as prisoners under guard by 3PM, long before all the evidence from the scene had even been collected, let alone analyzed. The time of arrest is a key issue, and that's why OPD claims there was no arrest until 3AM. Even then, Cunningham said, there was no probable cause for arrest.

Sitterud said he decided to arrest only after interviewing Darryl Cherney that evening, which "solidified" his belief that they were transporting a bomb because Cherney had an attitude that environmentalists had a right to violate some laws for their cause. "I thought the bombing might be a ploy to get media involvement in Redwood Summer."

Cunningham: Why'd you think that?
A: Just speculation I guess.
Q: But that was opinion. What was the evidence?
A: What stood out to me was Darryl Cherney's illogical statement (to an ambulance driver) that "they threw a bomb at us."
Q: But that was just suspicion. Did you ask Darryl about what he had said when you interviewed him?
A: His story was different then. He said someone told him someone threw a bomb at them.
Q: So you were going on double hearsay?
A: Eventually he refused to make a taped statement.
Q: He didn't refuse until you accused him did he?
A: He said at the start that he would talk to us but he reserved the right to stop and ask for a lawyer.
Q: But then he went on talking and answering your questions for over an hour, didn't he?
A: Yes.

As questioning continued, Sitterud agreed that Shannon Marr had talked freely and told him that Judi Bari and Darryl Cherney were nonviolent activists. She told him that they had received threats, and Kemnitzer had told him that too. Sitterud said he thought they were faking, and that "Everything they did was geared to getting media." He said he did not look at the threats the afternoon or evening of the bombing because there didn't seem to be any way to investigate them; they came from far away. He said he didn't know if there were copies of written threats in the bombed car (there were), and he didn't remember if Cherney told him about the threats (he did).

Sitterud later said he learned what Bari and Cherney had told medical personnel. They both said they had received threats from timber industry supporters and both named the same two individuals and a group they called the Fort Bragg Nazis as likely suspects. Sitterud did not try to investigate the threats or the individuals or assign anyone from OPD to do so. He later asked law enforcement in Mendocino County for help, and the FBI also investigated. He said he recalled seeing a stack of FBI interview forms about a year later, but didn't look at them because he understood that they found out nothing significant. "So your two suspects independently told you the same two names as suspects and you didn't check it out," Cunningham summarized.

In later cross-examination by his own lawyer, Maria Bee, Sitterud said he had eventually sent letters to ten law enforcement agencies in the area where such threats might have been reported. He received no information back about any threats. Sitterud said he later traveled north to Mendocino and Humboldt counties. He interviewed a woman whom the local police chief said had a lot of information about Earth First! (The woman is a strident opponent of Earth First! and an organizer of timber industry support groups.) Sitterud also talked with Frank Wigginton, a security manager for Louisiana Pacific. Wigginton showed him a videotape he had made of Judi Bari announcing the renunciation of tree-spiking by Earth First! in her region. Sitterud said he thought Bari was insincere, that she was tongue-in-cheek.

Continuing direct examination, Cunningham turned to Sitterud's treatment of Shannon Marr, asking wasn't it true that she had been cooperative until they had accused her of guilt. Sitterud replied: "What she testified to was a gross exaggeration of what happened. I tried to befriend her and talked with her for a long time."

Q: Didn't you lock her in an interrogation room for hours?
A: That was not intentional.
Q: She told you lots, about threats Judi Bari and Darryl Cherney received and about their nonviolence, didn't she?
A: Yes.
Q: She talked until you accused her, isn't that right?
A: That's not how I remember it. She was holding back some information. We never completed the interview with her. We left Miss Marr while we talked with Kemnitzer, and we intended to go back to her, but then we were ordered to release all the prisoners.

After some further questioning Sitterud commented: "All your questions seem just a little off center." Cunningham replied: "I take that as a compliment."

Sher continually raised objections as Cunningham tried to probe the issue of FBI defendants telling OPD people that the bombed car's occupants were the type of people who would be carrying a bomb, but Cunningham finally got the question in.

Sitterud: "I don't recall those explicit words. it was something about these people were suspects in a terrorism incident." He said the information came from several different sources including the FBI. Cunningham again confronted Sitterud with his deposition testimony, in which he said there were discussions with FBI agents at the bombing scene. They said the injured people were people they knew, that they were associated with Earth First!

Q: So at the meeting Reikes told you they were terror suspects and Doyle told you the bomb was visible in the back seat?
A: I don't recall that.
Q: Wasn't that the basis for the arrest?
A: When they came out of Kemnitzer's house they loaded their instruments in the back seat and the bomb would have been in plain view.
Cunningham shows Sitterud a photo of the guitar and fiddle cases on the ground next to the bombed car.
Q: Does that look like it was next to a bomb? Is the guitar blown to smithereens?
A: It looks damaged. The case is torn. (In the photo the guitar and case appear intact except for the very bottom end.)
Q: Did anyone tell you about the motion device?
A: Not at the time.

Cunningham asked if anyone at the meeting discussed the possibility that the bomb was under Bari's seat. Sitterud said they may have, he did not remember.

Under cross-examination by Maria Bee, Sitterud told more about the FBI briefing that night: Q: Did you hear any more information about Earth First?
A: Considerable, and none of it was good.
Q: Did you question the FBI's Earth First! investigation?
A: No.
Q: Ever hear of Earth First! before May 24?
A: No.
Q: Did you know what tree-spiking was before the FBI briefing?
A: No. I learned at the briefing that Earth First! would go into the woods at night and pound rebar or huge spikes into trees and try to conceal them so it would cause a saw to explode in shrapnel and cause injury. They wanted to make the loggers afraid to cut the trees. (This is not an accurate description of either the method or the intent of tree-spiking.)
Q: Did you learn from Doyle at the briefing the location of the bomb?
A: Yes, he said it was in the back.
Q: Did you know of Doyle's qualifications?
A: Yes, he was highly qualified.
Q: Did you know any reason for him to mislead you?
A: No, I thought he was sincere.
Q: Did SA Reikes give you information about Earth First?
A: Yes, he said the FBI had an informant in Earth First! who gave a tip that Earth First! leaders were coming to Santa Cruz for some kind of action.
Q: What happened at 3AM that led you to arrest Judi Bari and Darryl Cherney?
A: The magistrate had reviewed the affidavit for the search warrant and found it sufficient. Others agreed that arrest was appropriate. Also there was the informant tip, the similar bomb at the sawmill, and information that Earth First! was trying to shut down the timber industry. Also there was Darryl Cherney's statement that 'they threw a bomb at us,' when in fact all the windows were rolled up. That was a symptom of Cherney's guilt. Also, there was a general philosophy in Earth First! that it was their right to use illegal means to shut down the timber industry.
Q: Did you know the plaintiffs were headed for Santa Cruz?
A: Yes, and we learned they were imitating Mississippi Summer to get media attention.

In an apparent effort to show Sitterud is sympathetic to environmental groups, Bee had him recite a list of six such groups he belongs to now that he's retired and living in Utah. They included the Sierra Club, the Nature Conservancy, and Ducks Unlimited.

Cunningham: Did the affidavit say there was a bag of nails found in the back of the car that were identical to the nails taped to the bomb?
Sitterud: Yes.
Cunningham: Did you ever see such a bag of nails?
Sitterud: No. I looked for it later but didn't find it.
Cunningham: But that night you never looked at any nail evidence, even though it was the only evidence besides the supposed bomb location that was cited in the warrant affidavit?
Sitterud: True.
Cunningham: You considered information about the reputation of Earth First! as supporting arrest and search?
Sitterud: Yes.

Besides searching Bari's home and Cherney' home, they wanted a warrant to search the Seeds of Peace House in Berkeley where, the night before the bombing, Cherney and Bari attended a meeting to plan logistical support for Redwood Summer. Cherney had spent the night there, and that's where they were heading back to when the bomb exploded.

Police had already searched David Kemnitzer's house without a warrant. Kemnitzer invited police in because he was concerned that the person who had bombed Judi and Darryl may also have planted a bomb in his home.

It was his home where Bari had spent the night and where she had just left from when the bomb exploded. When Cunningham had asked Sitterud if any evidence of bomb making was found, Sitterud became animated: "We found what looked like a bomb builder's kit. There was a large metal tool box in the dining room. It contained a soldering iron, batteries, a wall switch, tape and wire. It made me suspicious." It turned out to be a stained glass lamp hobbyist kit belonging to Kemnitzer's teenaged stepdaughter, and it had her name on it.

Police had also searched the Seeds house, although Sitterud claimed that he didn't know about it at the time. At the request of the OPD, Berkeley police had conducted a "public safety sweep" in an aggressive raid aided by FBI and OPD personnel.

During the afternoon on the day of the explosion, as live TV news cameras rolled, police and other law enforcement officers rousted the Seeds residents and held them prisoner for hours while police ransacked their home. Police discovered a suspicious box in Cherney's van and called for the bomb squad to remove it and blow it up. It turned out to be a box of Cherney's music cassettes.

Acting on a pretrial motion by the defense, Judge Wilken had ruled that plaintiffs could not raise the issue of the manner in which the Seeds search was conducted, reasoning that since it was done under jurisdiction of Berkeley police it was irrelevant to the case against these defendants. With the trial now under way, Cunningham argued to the judge with the jury out of the room that he could show the search was relevant after all. "We want to show that some defendants in this case got that search done, and did it in a sensational way to create media and smear the whole movement," Cunningham said.

Q: Why?
A: It looked like it was written by two different people, and it didn't make sense that an anti-abortion extremist would bomb a lumber mill at Cloverdale.
Q: The letter said he did it to bring infamy on Judi Bari, so that she would be blamed for it.
A: That seems unlikely.
Q: Did you try to find out if the religious language in the letter was authentic?
A: I knew it had been sent to the FBI's Quantico lab and they analyzed it.
Q: Did you find out there was a fingerprint on the letter?
A: After 12 years I don't recall.
Q: Was there any effort to check the print against Judi or Darryl?
A: I don't recall.
Q: Did you come to learn that FBI lab explosives expert SA David R. Williams said the description of the bomb in the Avenger letter was accurate?
A: Yes.

Sitterud said he discounted the letter because he learned that "we had a nail match." He recalled that Williams said the nails taken from the search of Bari's home had been made on the same machine as nails from the bomb, and in a small batch. "It was like a firearms ballistic match," Sitterud said. "That colored my beliefs strongly. I was less likely to believe the Lord's Avenger bombed Judi Bari due to the abortion issue. At that point we had conclusive evidence tying the bomb to Ms. Bari's residence."

Sitterud confirmed that Williams came to Oakland to inspect the bombed car and pointed out where the pipe bomb's end caps had impacted the car body, showing that the bomb was well under the driver's seat. Williams also said the bomb had been covered with a blue towel, making it unlikely it would have been visible. But to Sitterud, the matching nails were conclusive.

Sitterud claimed Williams told him that the nails were made on the same machine within 200-1000 units of each other, but Williams would later testify that he had never put a size on the batch, and that in fact one nail machine could make hundreds of thousands -- maybe millions -- of nails with the same tool marks. Moreover he said he had never compared nails before, and his report included a caveat that his finding of a match was preliminary and should be checked by an experienced expert.

Sitterud said Williams also demonstrated with a mock-up of the bomb various locations where it could have fit in the car. Sitterud said that the bomb would have been at least partly visible in all the possible locations. Later it would come out that Williams had demonstrated various locations where the bomb could NOT have been, and then showed the one place where the bomb must have been, directly under the seat. Williams also told Sitterud and the others that the bomb had been covered by a blue towel, which would have helped conceal it from view as well as muffling the ticking of the pocket watch timer.

Q: That was unusual wasn't it?
A: Yes, very. They changed their mind and decided to wait. At first they thought there was no problem charging Bari and Cherney.
Q: The nails were listed in the search warrant affidavit as evidence of guilt weren't they?
A: Yes, it was one of the most significant and conclusive pieces of evidence. We felt we had closed the case. We were very sincere in our effort. It looked like it was their bomb. All the information we had supported that. We tried to do a good job.
Q: But the nails claim turned out to be nothing at all, didn't it?
A: I don't know that.
Q: You didn't know that the claim of the nails matching within a batch of 200-1000 in manufacture was denied by Williams in his deposition?
A: No.
Q: You didn't check out the claim?
A: I relied on Williams' statement.
Q: There weren't any identical nails were there?
A: I never saw any.
Q: Did you tell Chris Carpenter that the nails weren't even similar?
A: I don't think so.
Q: When the search warrant affidavit was prepared, Asst. D.A. Orloff thought the matching nails claim was fact didn't he?
A: I don't know what he thought.
Q: You went for a second search warrant 10 days after Williams was there, and you told the magistrate you wanted to search for more nails, didn't you?
A: Yes.
Q: And you said you were looking for a typewriter?
A: Not as I recall.
Cunningham showed Sitterud the affidavit for search warrant, which said the search would be for "type writer" exemplars (examples of typed pages that might match the Lord's Avenger letter).
A: Oh, that's different. We were looking for exemplars.
Q: So you thought she made the bomb at her home with her two small kids and then brought it all the way to Oakland under her seat fully armed?
A: We thought parts of the bomb came from her house.
Q: It was clear that the Avenger letter was written after the bombing, because it showed knowledge that Bari didn't die, right?
A: Correct.
Q: Judi was incapacitated in the hospital and under guard. You didn't ask to search Darryl Cherney's house for typewriter exemplars did you?
A: No.

Cunningham's questioning also brought up the Cloverdale bomb:

Q: Was there any evidence tying it to Judi Bari?
A: We had information she was demonstrating against the same lumber company just days before.
Q: You're sure about that?
A: I think so.
Q: You don't recall checking with Mr. Gough of Louisiana Pacific security who said there had been no demonstrations ever against LP in Cloverdale?
A: I recall that her whole effort was to shut down lumber companies. That was the whole point of Redwood Summer. Kemnitzer, Shannon Marr and Cherney all said so.
Q: So you thought she would bomb the lumber company to encourage people to come demonstrate? That would make sense?
A: Could be.
Q: Didn't everyone tell you that Judi Bari and Darryl Cherney were nonviolent?
A: No, Earth First! had a reputation.

Earlier Sitterud learned about Judi Bari's injuries, her fractured pelvis, and injuries to her buttocks and the backs of her thighs but he didn't consider the relevance of the injuries to the question of where the bomb was located. "I didn't, no," he said.

Sitterud said he was told the night of the bombing that a search of Cherney's van found suspicious items including duct tape, red electrical wire and alligator clips. He said that contributed to his opinion that Cherney was guilty.

Q: You said you had no reason to doubt what the FBI told you, right?
A: Yes.
Q: You said you never had any prior dealings with any of these FBI agents?
A: True.
Q: So why did you trust what they told you?
A: The FBI's reputation.
Q: Ever hear of the Black Panther Party?
Sher: Objection!
Judge: Sustained.
Q: Did you ever hear of anything the FBI did that was not righteous?
Sher: Objection!!

Judge Wilken sustained the objection and told Cunningham to change the topic. She had ruled before trial that plaintiffs can not bring up the FBI's history of targeting political groups for disruption, including the bureau's infamous secret COINTELPRO operations, because the plaintiffs had not proved that any of the current defendants had participated in those operations. The issue was to come up again when the jury had left the courtroom.

Bari and Cherney attorney Bob Bloom wanted to argue the issue of the FBI's past. He said Sitterud had clearly testified that he relied on the reputation of the FBI in accepting statements from individual agents he didn't know. Bloom said Sitterud had been with OPD since 1969, and knew very well about the FBI's COINTELPRO operations, with the OPD's cooperation, against the Oakland-based Black Panther Party during the '70s. Bloom contended that when Sitterud was asked if he knew of any bad actions by the FBI, "his truthful answer would clearly be 'yes, they do stuff to make activists look bad,' and we have a right to have the jury hear that."

Sher argued that Judge Wilken had ruled that plaintiffs are barred from discussing COINTELPRO. Cunningham said no, the ruling was that they were barred from discussing it unless defendants 'opened the door' and made it relevant by citing the reputation of the FBI. He felt the door was open, but the judge disagreed. Cunningham retorted: "Well it's ajar." This was not the end of this issue.

Cunningham continued his questioning:

Q: You said a red wire, duct tape and alligator clips found in Darryl Cherney's van were significant?
A: Yes.
Q: Ever heard in training of an alligator clip used in a bomb?
A: I could conceive of it.
Q: Is it logical for a bomber to stick a live bomb under her own seat with the switch on, the timer running and a motion switch ready to go?
A: I wouldn't do that, but I'm not a bomber.
Q: Is it logical for someone to use a bomb when they're organizing a nonviolent movement?
A: They did stuff to get publicity. They thought they could violate the law.
Q: There were no alligator clips in the bomb in Judi Bari's car were there?
A: I don't recall any.
Q: Did you find any materials in the search of Judi Bari's and Darryl Cherney's homes that matched anything found in the bomb?
A: I don't know of any.
Q: Did you check where Judi Bari and Darryl Cherney were on the night of the Santa Cruz power line downing?
A: No.
Q: What about the night the Cloverdale bomb was placed?
A: I don't know. The FBI handled that.
Q: Did you investigate the Oakland bombing or did the FBI investigate it?
A: I did some and the FBI did other aspects. It was not convenient for the OPD to leave Oakland, so the FBI helped with the more remote tasks.
Q: Was it established at the May 24 briefing that the OPD would arrest and the FBI would investigate?
A: I'd have to check.

Q: So you're an environmentalist now?
A: Yes, and always have been.
Q: So you support Earth First! goals?
A: My ethics would never allow me to support Earth First!

Maria Bee re-cross-examined: Q: Did the things found in Mr. Cherney's van include a plastic pipe nipple with a metal end cap?
A: Yes. (This was untrue)
Q: Was it significant?
A: Very! The pipe bomb in Ms. Bari's car was a pipe nipple and two end caps. I never saw anyone carrying a pipe and end caps around before.
Q: Did you have any reason to disbelieve what SA Sena told you about the informant tip?
A: No.

Then it was again Cunningham's turn: Q: What was the pipe nipple material?
A: It was plastic.
Q: Nothing in the search warrant affidavit mentioned the items in Cherney's van did it?
A: It was an oversight, a mistake.
Q: You cited the reputation of the FBI. You were aware, were you not, of the FBI's operations against radical groups?
Sher: Objection!!!

Judge Wilken told Cunningham not to go there. When he attempted to argue the point, Wilken cut him off with a stern, "You may sit down!"

That ended the testimony of Michael Sitterud.

When the jury was out of the courtroom for their next break, the judge admonished the plaintiffs' attorneys, saying: "I do not want to hear another question that begins with, 'Were you aware of the FBI's actions against political groups?'" In the future, she said, if they believe a witness's testimony has opened the door to such questions, they must wait for a recess and ask her permission before pursuing it.

Cunningham expressed his feeling about the matter outside the courtroom: "It's very frustrating to have the allegedly bad reputation of Earth First! repeatedly kicked around in the courtroom, and not be allowed to explore the historically documented bad conduct of the FBI."