Judi Bari Bomb Case Heard in Court

by Nicholas Wilson

Tony Serra speaks at Judi Bari rally outside courthouse

In a bold legal move, the Bari/Cherney side has decided to make a motion to bring ex-FBI San Francisco office chief Richard Held back into the case, even though it may delay the trial.

Events that day began at a pre-court rally held in front of Oakland City Hall and the offices of Mayor Jerry Brown. The location underscored the launch of a new petition drive asking Brown and the city to start cooperating, stop the delaying tactics which have dragged the case out more than nine years, and to begin a new investigation of the 1990 car bombing of Bari and Cherney.

The mayor has demonstrated interest in the case, and the Bari/Cherney lawyers joined Cherney after the hearing in a meeting with Brown and Oakland's city attorneys. Mayor Brown expressed surprise on learning that deposition testimony showed that at the time of the bombing the OPD "Intelligence" division was spying on over 300 politically active groups and individuals in the Bay Area, and that they shared their information with the FBI. Cherney said that a month before the bombing OPD intelligence officers had responded along with FBI "terrorist squad" members to an Earth First! banner hang on the Golden Gate Bridge, far outside Oakland's jurisdiction, proving their cozy partnership with the feds. That same week Oakland officers were among the attendees at an FBI bomb training class held in Humboldt County on timber company land, where cars were blown up with the same type of pipe bomb used against Bari and Cherney.

The newly announced Bari/Cherney trial team includes lead counsel Marvin Stender, Tony Serra, and Erica Etelson. Stender is a highly respected litigator, judicial arbitrator and a mentor in the National Lawyers Guild. Serra is legendary for his successful defenses in high-profile criminal cases, including Black Panther Huey Newton and Native American Bear Lincoln. Etelson has served as staff attorney for Bari and Cherney since 1997. Bill Goodman, Legal Director for the Center for Constitutional Rights in New York City, joins the team as consulting attorney. Also consulting is former lead counsel Dennis Cunningham, who this year not only beat Oakland's appeal but also raised a successful cross appeal.

The hearing's purpose was to update status of the case -- what further "discovery" of evidence is needed, what additional motions are planned before the case is ready for trial. District Judge Claudia Wilken said she wanted to move the case quickly toward trial, and to avoid any unnecessary delays. She suggested another year of discovery and then trial in the summer of 2001, but the Bari/Cherney lawyers said they prefer earlier that year.

Oakland's attorney asked Judge Wilken to order a settlement conference, most likely because Oakland came out of their appeal in worse shape than if they hadn't appealed. Not only was their appeal for immunity denied, but charges were reinstated against them that they conspired with the FBI to violate the activists' constitutional rights. The case against them seems strong, as confirmed by the appellate court opinion. Their prospects for prevailing at trial seem slim -- thus their new attempt for a pre-trial settlement.

Also discussed was a move to reinstate the case against Richard Held, who was dismissed from the case in 1997 by Judge Wilken as the result of a defense motion. Before the judge will even consider it, the Bari/Cherney lawyers must write a five-page argument that persuades her to hear a motion regarding the matter. If she denies that motion, the Bari/Cherney lawyers said they are prepared to file an appeal, which could cause more than a year's delay in the trial.

Bringing Held back into the case would make the case much stronger, making it worth a possible delay, according to Cherney. Held was the Special Agent in Charge of the FBI's San Francisco office at the time of the bombing, and has a long history of involvement in the FBI's infamous "COINTELPRO" operations of covert action against political dissidents over more than two decades, including the framing of Black Panther leader Geronimo ji Jaga (Pratt) and American Indian Movement activist Leonard Peltier. Although originally Bari and Cherney filed suit against the FBI itself as well as several higher-ups, and against the Oakland Police Department, defense motions have whittled the case down so that now only about five lower level FBI agents and three Oakland Police officers remain defendants. Thus getting Held back in is key to showing that the attempted frame-up of Bari and Cherney was an official operation, not merely the work of some lower-level rogue agents.

Held abruptly announced his resignation from the FBI on the eve of the third anniversary of the bombing, just as Bari was about to release newly obtained police photos of her bombed car proving that the FBI had lied to the media and the courts about the location of the bomb in order to blame her for it.

Before his election in 1998 as Oakland's Mayor, Brown, former governor of California, was actively in support of Headwaters Forest preservation, and spoke at a big Headwaters rally at Stafford in 1997. Cherney said Brown was ready to be arrested along with many others, but there were no mass arrests there.

When Cherney was asked after court whether he thought Oakland's new interest in settling the suit was due to Brown's intervention, he replied, "I think it is because the 9th Circuit (Court of Appeal) kicked their butts." Then he added, "We'll never settle."

Attorney Marvin Stender told Monitor that litigants are expected to make a good faith effort to settle, and some 90 percent of lawsuits are disposed of by settlement. Cherney said that at the only prior court-ordered settlement conference, the Bari/Cherney side asked Oakland for an investigation of the FBI and for clearing Bari and Cherney's arrest records, but not for any money at all. He said Oakland offered "a joke" amount of $10,000. Cherney went on to say "the main reason not to settle is that the FBI is the secret police and needs to be exposed. We want to reveal what they did." The only way to do that, he said, is to take the case to trial. "They won't turn over evidence unless the court orders it," he said. "In fact, they don't even comply when the court orders it."

Just days before her death from breast cancer in 1997, Bari exhorted Cherney never to settle the case, never to let the FBI and Richard Held off the hook, but to take them to trial. Cherney vowed that is exactly what he'll do.