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Tony Serra Makes The Case

by Nicholas Wilson

report on Judi Bari vs. FBI trial
As closing arguments began Thursday, May 17, famed San Francisco criminal defense lawyer spoke for Darryl Cherney and the late Judi Bari. He told the story of the bombing and its aftermath eloquently and with great passion, framing the issues and painting the picture in broad strokes, relying on colleagues who came afterwards to fill in the details.

Serra also reminded the jury that this is not a criminal case, and the jury does not have to find the law enforcement defendants innocent beyond reasonable doubt.

After thanking the jury, he struck directly at the heart of the issues:

"What is the case about? I think it's about a great police falsity, a defamation, a great police-inspired miscarriage of justice. It's about two good people two Earth First! good people, nonviolent people who were the target of a terrorist assassination. What occurred ultimately is these victims were victimized... You're going to come to a conclusion that this was one-sided and the terrorism that was perpetrated was ultimately perpetrated by law enforcement on Judi Bari and Darryl Cherney.

"Come with me for a minute. Follow the footsteps of the plaintiffs in this case. Walk with them for a few moments as the evidence provides you a guide. When the case started it's in the latter part of the '80s. You have two good people, two strong people, two loyal people, two honest persons. They hail from -- generically -- the East. They come to northern California, one a carpenter, one a troubadour, a singer of songs, singer of social reform songs.

"And what do they see? They see a great beauty. They see a great symbolism in the ancient and majestic redwoods. Something that has endured generation after generation. Something that is a phenomenon on the planet -- the monarch of all trees, the old growth redwoods...

"What did these two good people see? They saw greed. They saw corporate greed. They saw takeover. They saw that the intent of the corporations was to clearcut. To eliminate practically in entirety these great majestic redwoods. And it was done for greed. And they from the bottom of their hearts opposed that...

"They did what is our fundamental right. They exercised their First Amendment right to its fullest meaning. What did they do? You heard from the evidence. They created sit-ins. They went to board of director meetings. They demonstrate in front of corporate headquarters. They filed petitions. They attended public hearings. They spoke out at every occasion. They sat in trees day and night. They blocked roads they protested. This at its most radical calling was mere civil disobedience.

"Recall what the major tenet of the Earth First! philosophy was. Biocentrism. It means that all living objects -- I'm talking about trees as well as animals and people -- are linked, that there is a necessary symbiosis, that one relies on the other, that when one goes it certainly signals the prospect of demise for the others. We are all locked in this life force. We are all in it together. That's their central theme. Not some anti-government theme. It had nothing to do with violence. Never did and never will.... there was no tree spiking. There was no tractor destruction... I'm talking about Judi Bari [and] Darryl Cherney's commitment to nonviolence. The closest thing that the evidence shows with these people is that on some occasions they might block a road. On some occasions they might tie themselves to a gate. They denounced violence... these people merely exercised the fruit of our heritage, as is our right and privilege, in seeking reform from greedy corporations that wish to clearcut the ancient redwoods. That is the cause meaningful and profound. They are truly environmental heroes."

Redwood Summer and Forests Forever Initiative
"You know that there was the Redwood Summer that was created at the end of May by Earth First! in these two counties by the two plaintiffs here. That was dedicated to nonviolence. You know they wanted to bring in -- after the pattern of Mississippi Summer -- old people and young people from all over the country. They were outreaching. They wanted to guarantee it would be nonviolent...

"The Forests Forever initiative. Something so significant had occurred, something so legal and altruistic. They'd gone from county to county -- I'm not talking about Earth First! but Earth First! participated -- and they put an initiative on the ballot and that was coextensive with Redwood Summer and that would be the prize and glory of Redwood Summer. That was Proposition 130. It would severely limit the clearcutting of the ancient redwoods. It wasn't going to stop it all, remember. Judi Bari in her heart of hearts was a union organizer. Recall that she ultimately creates -- she and others, Darryl included -- a union comprised in the main with the lumber employees and the millworkers. They didn't want ultimately to stop everything. They wanted it done in a meaningful, pragmatic, limited way so the children of the workers would have work and their children would have work and lumber would continue to be exported from that zone, and the beauty of the redwood would remain. Remember this lost by only a percent and a half.

"That was their plan. In attempt to fulfill that plan to bring people in to pass this meaningful initiative, they organized, they disseminated information, they went from campus to campus on speaking tours, they issued press releases.

"Finally -- which brings us close to the heart of this case -- they were going on a singing tour. There were three of them as you recall. Bari left her area independently. Not with Darryl Cherney {who] they're going to meet in Berkeley. So Cherney's coming one way with his person, and Judi is coming her way with her people, and they meet that night...

"Next morning Darryl comes over. They leave together in Judi's car and try to follow Shannon Marr, and she's driving fast. There was a sharp turn made trying to keep up with Shannon and this terrible event occurs. A huge bomb explodes in a small car. Think of the sound. Think of the black smoke that was seen. So stop there for a minute -- because quickly two motifs, two dimensions, are about to converge."

Squad 13 is the FBI's KGB
"Let's go back with the evidence and look at law enforcement. There is prior to Redwood Summer a squad in the inner sanctum -- I argue -- of the FBI. Squad 13 has prestigious status. They are the so-called anti-terrorism squad. They don't -- as they try to profess -- they don't investigate groups or organizations -- they just investigate crimes. Of course if those crimes are connected to an organization they might (and in the past, they did) investigate organizations.

"What really is Squad 13? Do you deem it coincidental that some of its members in this case -- the more meaningful members -- hail from teaching the tactical squad? Do you think that they don't enjoy a special form of prestige when they're involved [in] all of the major terrorist bombings that occur in this country and outside it? Weren't they grand in their presentation to you with how busy they are with all of these significant investigations?

"They are the KGB of the FBI. They are the political law enforcement entity. They enjoy great respect and great prestige. They have great power. This is the squad 13. And although they deny it, and although they say they can't remember, they had in their gun sights from a significant time before May 24 Earth First! as a target.

"It creeps in when you know that they had a role in the investigation of the Arizona situation, of the Santa Cruz situation, of the demonstration at the Golden Gate Bridge. It creeps in when... law enforcement assembled at the Oakland police administration building [and] discussed only Earth First!

"...They talked about Arizona and Kraft writes in his notes that it was a bomb that downed the power lines in Arizona. That isn't true. Then of course they talked about Marin, and they talked about Santa Cruz. What I'm trying to say is that from the get-go Earth First! was on the political agenda of this most political Squad 13. You start with that, and Kevin Griswold was their counterpart in OPD. He candidly admits he had a file on Earth First!"

FBI Seizes Opportunity
"Now here comes the FBI. They go to bomb scene [and] the FBI defendants came to this event with a predisposition, a bias. For them it manifests ultimately in the affidavit (for the search warrant) and certainly part of the probable cause for arrest.

"They believed that Earth First! was a terrorist organization. One hour of investigation would prove otherwise, and they knew it, but that's what they do. They go after what they deem in their values to be a terrorist group...

"What was [their] tip? It was a nothing... meaningless. 'Two heavy hitters from Canada and western U.S. were coming to Santa Cruz to do an action.' What does it mean, 'an action?' Action can be anything from a demonstration to an act of civil disobedience. How was that fire fanned? [FBI agent] Sena perverted that into two heavy hitters from the north -- i.e. northern California -- connected with Earth First! are going to Santa Cruz to bomb. That's what was pervasively distributed as a fact from a reliable informant. That was all lie. That's what started this whole thing. Sena told [FBI agent] Reikes. Reikes told [Oakland police officer] Sims. Reikes admits he told Sims it was a bomb. It was spawned, concocted falsely; the FBI did it knowingly and willing, and the OPD were their willing lackeys.

"This is what you call a conspiracy; this is what you call a frame-up.

"You know what Sena did. He interrogated Cherney and accused him: 'We know you did it, so why don't you confess and make it easy on yourself.' The mindset had been previously established. Get these two so we can disfigure, dismantle, neutralize 1) Earth First! and 2) the movement to save the redwoods. They knew that was on the plate. This is a horrible conspiracy concocted by people who are above the law, in their own opinion."

What a Fair Investigator Would See
"Ladies and gentlemen, what would you expect them to do at the bomb scene? These people in the FBI -- even in Oakland Police -- they had persons who were experienced bomb technicians, but it doesn't take a bomb technician to ascertain the truth of what occurred out there. You open the door and look in the car...look for the center of the crater (in the floorboard), as our expert indicated. It doesn't take a rocket scientist. Because there's a portion in the back, but there's a huge portion in the center and the front. The center falls squarely under the driver's seat. Look into the back seat. How much damage is there in the back seat? If (the bomb is) right next to the back seat it would be blown to smithereens.

"Nails were connected to this pipe bomb. Look around the back seat. Nails would have been embedded in the foam of the back seat. There were no nails there. There were nails embedded under the front seat. The back door would have been blown up. The back door was not at all, in significant manner, disturbed. The front door was blown to smithereens. It doesn't take a sophisticated mind to come to the only logical conclusion: the bomb was under the seat.

"They lied about that, created a falsehood, because they were predisposed to get these two people because of their political agenda. There was conspiracy, a meeting of minds, an implied agreement. What do hounds chase? Rabbits. What do coons do? They eat chickens. Squad 13 had locked in on Earth First! This was their big opportunity.

"What's another apparent thing? They talked. They were aware at the scene. They talked. Everyone at scene knows what everyone else knows. They found a ball bearing. One of them says maybe the ball bearing is part of the car. There's no evidence it was part of the car. It was part of a motion device. They didn't have to wait for [FBI lab specialist] Williams. They knew that. It was the only reasonable inference to draw...

"If you were fair, objective, if you didn't have a program already in place, you'd say to yourself, do you think these two people would turn on the on-off switch, then put on the clock so that when time elapsed and when they turned the car it would blow up? Is that reasonable? They knew that. That is highly exonerating. That is circumstantial evidence that leads only one direction, that these people are not guilty. They were not knowingly carrying a destructive device. They were victims, the targets of the bomb."

"Last but not least, and probably primary, they concluded in unity in conspiracy that the nails were identical. The nails were identical, it was unequivocally stated... My god, if they got nails identical to the nails on the pipe bomb, that certainly is a strong and reasonable suspicion that they're involved.

"[But] it was long skinny finishing nails on the pipe bomb. It was short flat-headed roof nails they found and the other nails were framing nails with large head -- because Judi was a carpenter. There wasn't similarity in the remotest possibility, no occasion to describe them as even similar. They described them as identical. That is a lie!

"You can't get around that perjury in the affidavit. There were never any similar or identical nails. They can't do that. That's not something that is good for us. They can't perjure. They can't falsify. That isn't right. What is right is what is legal. What is wrong is what is illegal. Especially in this case, how dare they do that? Doesn't that provoke you? Doesn't that cause you to be shocked? Doesn't that cause you to be outraged? How dare they say the nails were identical? That the hole was by the back seat? That there weren't three modes of making the bomb go off? How dare they?"

FBI Leads OPD by the Nose
"Can you imagine if this was OPD and in comes the supervisor of the KGB, Squad 13, the big shot. What does he say? He [says they have] a confidential informant highly placed within the leadership of Earth First!. We knew all along that two heavy hitters were going to come down with a bomb and do an action in Santa Cruz.These are the two. They did it before in Arizona. They did it in Santa Cruz. We've been watching them in Marin. They're not going to tell you that, but they told enough so you can get a picture. Remember: they told you themselves when they're under accusation, there is the code of silence...

"What happened later? The most sham false investigation by both the defendants, Oakland and the FBI, that you can imagine... They concentrated on Bari and Cherney, who was a fountain of information, and would have talked day and night. They concentrated on their friends and associates. They did their phony phone sweep to stick everyone's name in their indices. I'm talking about their friends and supporters. They victimized the victims, and destroyed the reputations of these two people.

"Think. Here they were. Here was Earth First! emerging as the Pacific Northwest's premier environmental movement. They were going to stop for all of us the clearcutting of ancient forest. They were beautiful and strong with regard to that objective, which is socially meaningful, and what happens? False arrest. Headlines!

"They're bombers! Earth First! Judi and Darryl bombers!

"They talk with forked tongue! They're not nonviolent activists, they're bombers!


"That went out and that destroyed them. That which was most meaningful to them, their First Amendment privileges, the right to champion their cause, to affect the electorate, Prop 130. You saw that they thereafter were greeted with jeers and contempt and threats. They were hated! They were hated by the lumber industry to begin with [and] they were hated by most people after.

"Everything they lived and breathed for was taken from them. That was the objective of the conspiracy. The propaganda was picked up by media. It called Proposition 130 the bomber's proposition, and it lost by a percent and a half.

When you think of damages, think that Bari spent every day of the rest of her life trying to resurrect her reputation and Darryl is still spending his days. This trial is part of their efforts to get the case really investigated -- not a sham false investigation -- for their ultimate vindication. Everything meaningful, true and good was taken from them. You assess pain. Damages to reputation. They were destroyed by these FBI defendants and by these Oakland defendants."

Not a Thin Blue Line
"I know since September 11 all of us rightfully look to law enforcement for their protection. Remember they used to call it a 'thin blue line' that separated civilization from those chaotic elements that often penetrate it. In this case, it's not a thin blue line. It's a thick blue wall that encircled the plaintiffs. It squeezed the very life out of their limbs, out of their psyches.

"This is a terrible thing that occurred. They couldn't enjoy their First Amendment freedom. They're just trying to restore themselves. Where did their rights go to free assemblage? Protest? Dissent? Saving redwoods? How deep was that? Why do people get cancer? Anxiety?

Federal Counsel Joseph Sher: Objection!
Judge Wilken: That's going a bit far Mr. Serra
Serra: I see the tobacco industry...
Wilken: Going far.

"I'm talking about punitive, demonstrative damages. Their pain and suffering was immense. (These plaintiffs) destroyed everything they ever lived for. Took it away from them and gave it all to other side. The lumber industry won.

"In a free constitutional society these kind of actions cannot be tolerated. There has got to be zero tolerance. Otherwise we will ultimately become a government-controlled people. You've got to see the symbolism... you've got to deter them, and there's only one way you've got to send a message through the media throughout this country that when FBI and Oakland police destroy a movement this is unacceptable. And the only way to do that is to award punitive damages, exemplary damages.

"We're talking millions and millions of dollars. None of us are greedy. We're not here for money, but you've got to send a message if you want to enjoy the fruits of this society. We want millions to punish them."

Thanks to Joshua Morsell for providing notes on Tony Serra's closing argument

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Albion Monitor May 19 2002 (

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