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The Case Goes to Jury

by Nicholas Wilson

report on Judi Bari vs. FBI trial
The case of Judi Bari and Darryl Cherney vs. individual FBI agents and Oakland Police officers went to the jury on Friday, May 17, after six weeks in federal court in Oakland, California. The federal civil rights lawsuit accuses the officers of deliberately trying to frame the two Earth First! activists for the pipe bomb explosion in Bari's car that maimed and nearly killed her on May 24, 1990.

In the final days of the trial, U.S. District Judge Claudia Wilken dismissed the case against FBI agents John Conway and Walter Hemje, ruling that there was insufficient evidence for a reasonable jury to find that they had acted out of any animosity toward Bari or Cherney, and so they were entitled to qualified immunity from suit. The two agents had each served for a time as case agent supervising the investigation of the bombing.

Lawyers for Cherney and Bari vowed to appeal the dismissal, along with earlier decisions by Judge Wilken letting virtually all the FBI higher-ups out of the case, particularly Richard W. Held, chief of the San Francisco FBI office at the time of the bombing. Held was a veteran of the FBI's secret COINTELPRO operations against the Black Panthers, the American Indian Movement, and the Puerto Rican independence movement.

That leaves four FBI agents (Doyle, Reikes, Buck and Sena) and three Oakland Police officers (Simms, Sitterud and Chenault) as defendants.

Judge Wilken also excused a Vietnamese-American juror who had told the judge on the first day that he had trouble understanding the opening arguments. This leaves a jury of eight women and two men.

The judge gave the case to the jury immediately after two days of closing arguments by both sides, and experienced trial watchers expect them to take several days to review the evidence and try to reach a unanimous verdict. Jurors must review voluminous documents in the evidence, and many of them took extensive notes during the six weeks of testimony.

Bari and Cherney's attorneys expressed confidence that many of the jurors are solidly with them, though others are difficult to read. The courtroom was packed with their supporters almost every day of the trial, signaling the jurors that this was a closely watched and important case.

During jury selection the judge said that typically one juror per week would be lost from a federal civil trial such as this. But only two jurors of the original twelve dropped out, both of whom told the judge they had problems on day one. That all the rest of the jurors stayed with the now seven-week case is a good sign that they are interested in the case and committed to completing their task. Judge Wilken told the attorneys for both sides to be available on 10 minutes notice during deliberations.

Federal lawyer opposes Consititution
In the second day of deliberations, a jury request for a copy of the First and Fourth amendments to the U.S. Constitution was opposed by both FBI counsel Sher and Oakland counsel Maria Bee. Judge Wilken overruled the objection and read the two amendments to the jury, but did not give the jury a written copy to take to the deliberation room.

"Their agents obviously haven't read the Constitution, so why would they want anyone else looking at it?" cracked Darryl Cherney, co- plaintiff in the suit.

Besides reading the First and Fourth Amendments to the jury, the judge also told them that the written jury instructions include what they need to know about the law. The instructions have been made available online at

The jurors also wanted to know the reason why two of the six FBI defendants disappeared from the case last Thursday. The judge answered that she could only tell them that the two are no longer defendants, and instructed them not to speculate about it and not to draw any conclusions about it in their deliberations.

Both questions from the jury came soon after the jury began deliberating Monday morning.

Later on Monday, the jury asked to see items of evidence including the two paper bags of nails found in Bari's car, the nails recovered from the bomb scene, and deposition transcripts of defendant Robert Chenault and the late Sgt. Hanson. The jury was given the nail evidence, but the judge asked them to be more specific about what they wanted to learn from the deposition transcripts.

The above would seem to indicate the jury is seriously evaluating the evidence in the case, and that a verdict is likely still a few days away.

Although the Bari vs. FBI temporary legal office is within the walking distance required for appearance on 10 minutes notice as the judge required, Tony Serra was waiting in the hallway just outside the courtroom. Serra said after court Friday that he was going to go burn candles and do whatever he possibly could that might mentally influence the jury.

On Friday, May 24, at 12 noon, supporters of Bari and Cherney will hold a rally at the Oakland Federal Courthouse to mark the end of the trial and the 12th anniversary of the car-bombing that the lawsuit is about. Cherney has proposed to Oakland City Council member Nancy Nadel that the city declare May 24 Judi Bari Day. The day would be devoted to education about the life of environmentalist, labor organizer and feminist Judi Bari as well as FBI persecution of activists, such as the Black Panther Party, which was based in Oakland. Nadel agreed that if Bari and Cherney win the case she would present it to the council for serious consideration.

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Albion Monitor May 20 2002 (

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