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Legal Victories in Judi Bari Bomb Case

by Nicholas Wilson

on Bari vs. FBI, et. al.
For more than eight frustrating years, the FBI and Oakland Police fought tooth and nail to escape trial in the lawsuit brought by Earth First! activists Darryl Cherney and the late Judi Bari. Lawyers for the cops used every possible appeal and procedural trick to drag out the case, hoping their accusers would run out of money and energy. Their stalling tactics paid off when Bari died of cancer in 1997 -- FBI lawyer Joseph Sher even accused her of faking cancer and tried to block her deathbed testimony -- but her estate and Cherney remain determined to fight to the finish. And finally, a strong ray of hope: a court has handed them not one, but two, important legal victories.

First, the U.S. 9th Circuit Court of Appeals in San Francisco tossed out the Oakland cops' immunity appeal -- if it had been successful, the police department would have gotten out of the suit completely. But the court didn't stop there. They also decided on September 24 that Bari and Cherney's lawyer raised a valid cross-appeal, and reinstated the claim that the Oakland police conspired with FBI agents to frame the two activists for political reasons. In the end, Oakland was worse off than if they hadn't made the appeal.

Trial date could be set in December
The ruling drops the curtain on the latest act in this drawn-out drama, but the play isn't over yet. A trial is probably still at least a year away even without any new stalling tactics. Oakland could appeal this ruling to the Supreme Court (not likely), or they can ask the appeals court to reconsider the matter "en banc " -- before all the justices of the 9th Circuit instead of just the three who heard the appeal. There's a fair chance of that since they haven't much to lose by asking for it.

"The appeals court has raked the Oakland Police over the coals for their attempts to delay our case and their violation of our freedom of speech," Cherney said. He talked about the current media attention to the FBI over their cover-up in the Waco matter, and said, "I think it's high time our case got equal attention in the media and in Congress. We've seen the FBI lab scandal and the scandal at Ruby Ridge as well as Waco, and the Olympic bombing. I think this is an excellent opportunity for us to highlight the fact that the FBI is attacking political activists and environmentalists..."

Oakland Deputy City Attorney Karen Rodrigue, representing the three Oakland defendants, told Monitor, "We're very disappointed at the outcome. We're looking at all of our options at this point, and we're confident that we'll prevail if the case goes to trial." She said she is taking a hard look at the appeal opinion to see if there are any grounds for a motion for reconsideration or other options.

Dennis Cunningham, lead attorney for Bari and Cherney since the case began, told Monitor the ruling was "a substantial vindication of our position. It shows that Oakland's claim that they were just following what the FBI told them ... is not legally sufficient to excuse them from the case. It also shows that the evidence is clear that they weren't just mistaken to make the arrests -- supposedly on the FBI's say-so -- but they joined the FBI consciously in cooking up the frame-up. The court decided that we had a fair case claiming that, that we have evidence showing that, and that reasonable people could find that true. So we are entitled to go to trial on that claim, that Oakland was in the conspiracy."

"The Oakland Police suffered a major setback ... we are now set to prove their illegal conspiracy to a jury," said Erica Etelson, a young National Lawyer's Guild attorney on the Bari/Cherney team. A trial date is expected to be set as early as the next hearing in the case on December 10.

Judi Bari interview
AS Monitor readers know, the Oakland police arrested the two activists after a May 24, 1990 bomb explosion under Bari's driver's seat almost killed her as she drove through Oakland on her way to recruit students to join in Redwood Summer. Bari and Cherney were the main spark plugs of what was to be a season of massive civil disobedience actions protesting corporate liquidation logging. The bombing made headlines across the nation, especially when cops accused the victims of being terrorists injured by their own bomb.

The motion-triggered fragmentation bomb hidden under her driver's seat severely injured and permanently disabled Bari. She suffered multiple fractures of her pelvis and massive tissue damage, and doctors told her she might never walk again. Cherney, her passenger, received lesser injuries. Both Oakland and FBI officials fed the media blitz for almost two months after the blast, claiming they were finding conclusive evidence against the two activists. But then the Alameda County District Attorney refused to file charges, saying there was no evidence that would stand up in court. After a year in which the official investigation went nowhere, and the cops refused to back off their accusations of Bari and Cherney, the two filed their federal civil rights suit in 1991.

In this latest legal skirmish, the appeals court denied Oakland's claim they had a right to rely on the FBI's false statements in deciding to arrest the two activists and get search warrants for their homes. The cops argued that the FBI told them the bomb had been visible on the back seat floorboard and therefore the activists must have been aware of it and intentionally carrying it. The appellate opinion by Judge Stephen Reinhardt said, "(The Oakland Police) had been at the scene and had personally observed the location of the hole caused by the explosion ... underneath the driver's seat." The opinion also took note that the OPD "knowingly or recklessly omitted mention of the death threats against Bari," evidence that she was targeted because of her environmental activism.

The court ruled that plaintiffs, "have presented sufficient circumstantial evidence that (the Oakland Police) intended to inhibit their First Amendment activities, and that they entered a conspiracy (with the FBI agents) to further this goal." This included providing inaccurate information to the media, monitoring Earth First! activities prior to the bombing, and acting "in close cooperation with (FBI) 'conspirators'" to contribute misinformation so as to get search warrants.

The ruling cited "false or reckless" statements and misrepresentations of facts made by Oakland police in sworn affidavits used to get search warrants. The lawsuit charges the FBI and Oakland Police with false arrest, illegal search and seizure, and conspiracy to violate the activists' First Amendment rights by using the bombing to falsely associate them and Earth First! with violence so as to undermine their political activism in defense of the redwood forests.

The bombing may have been intended to scare away potential participants in Redwood Summer, which a month before the explosion had garnered national wire service stories and a flood of calls for information from interested activists nationwide. Bari and Cherney had said Redwood Summer was a holding action to try to keep some of the forests standing until California voters could pass a major forestry reform initiative on the fall ballot. Both of them received multiple death threats keyed to their redwood activism, and they reported the threats to police prior to the bombing. Police found copies of written death threats Bari had received in her car after the bombing, but didn't mention that to the media. Timber industry public relations agents capitalized on the bombing and the police accusations to demonize Earth First! as violent extremists, and then to falsely portray the forestry initiative as the "Earth First! Initiative." The FBI kept secret most of the evidence of Bari and Cherney's innocence in the bombing, only releasing some of it under court order because of the lawsuit years later.

Famous lawyer to join Bari team
While he is happy with the latest appeal victory, Cunningham said he is not satisfied with the lower court's dismissal of FBI higher-ups from the case. "We can still try to do something about that," he said. He hinted that a very well-known attorney will be joining the legal team when the case comes to trial, most likely next year, barring further delaying tactics by defendants. There may be an announcement about that before long.

Cunningham said he had to admit he was "slightly proud" of the way he was able to raise his cross-appeal of the conspiracy issue by "piggy-backing" it onto Oakland's appeal. He explained that ordinarily the parties to a suit can't appeal lower court rulings until after the trial is over and decided. But police are granted special consideration and allowed to appeal immediately if the lower court rules they are not entitled to "qualified immunity" from suit, which protects cops from being sued over honest mistakes made in the line of duty.

Such an appeal puts the trial on hold for a year or more -- for two years in Oakland's appeal -- and it can fairly be said that delay has been the main defense strategy used in this case by both Oakland and the FBI. Since Oakland raised the issue by using the lower court's dismissal of the conspiracy claim in their argument for their immunity appeal, Cunningham seized the chance to counterattack and ask the appeals court to overturn the lower court's conspiracy dismissal. The court agreed that the cross-appeal was permissible because it was "inextricably bound" to answering Oakland's argument.

The complete 25-page appeal ruling can be found on the court's website under the case's latest short title, Bari vs. Sims. The Monitor reported last April on oral arguments presented in this appeal in April. The Monitor also published an in-depth review and analysis of the Bari bombing case last May.

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Albion Monitor October 4, 1999 (

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