Earth First!er Judi Bari avenged at last
by Josh Richman
Federal court finds FBI and police violated activists' free speech
OAKLAND, Calif. - Conspiracy theorists gained some validation June 11 when a federal court jury found that FBI agents and Oakland police framed two Earth First! activists for a 1990 bombing in order to quash their political work.
The jury of eight women and two men decided the government lawmen violated the civil rights of the activists, and awarded them $4.4 million in compensatory and punitive damages.
Plaintiffs and defendants alike seemed stunned at the culmination of the 11-year legal struggle and the six-week trial. Both sides are almost certain to appeal aspects of the case. But plaintiff Darryl Cherney claimed victory for himself and co-plaintiff, Judi Bari, who died of cancer at age 47 in 1997.
Emerging from the courthouse to his supporters' cheers, Cherney, 46, of Garberville, Calif., praised his lawyers for battling on despite being barred from giving jurors the context of other, unrelated acts of FBI misconduct against activists.
"We argued this case with our hands tied and the jury blindfolded, and we still won," he said, adding that he hopes the verdict will discourage the FBI from "clear-cutting the Constitution" while fighting the current war on terrorism.
The pipe bomb that destroyed Bari's Subaru station wagon May 24, 1990, injured Cherney slightly; Bari suffered a shattered pelvis and other serious injuries. The pair had come to Oakland while organizing a "Redwood Summer" to protest the timber industry's intensive logging of Northern California's old-growth forests. Oakland police arrested them hours after the blast, telling the press they were eco-terrorists who had knowingly possessed the bomb for their own nefarious plans. But two months later, prosecutors declined to press charges, citing insufficient evidence; no one else was ever arrested.
Within the environmental community, opinions have varied on who might have placed the bomb. Speculation has pointed many directions, including timber industry or anti-abortion radicals, or someone in Bari's personal life who might have held a grudge.
The activists sued the FBI and Oakland police in 1991, claiming the agencies conspired to violate their Fourth and First Amendment rights by falsely arresting them and illegally searching their homes in a frame-up to discredit and disrupt their Earth First! work. Generally, Earth First! is among the least compromising environmental groups, at times staging civil disobedience, and with historical roots in eco-sabotage.
The nonprofit Redwood Summer Justice Project, founded by Bari, collected about $1 million to publicize and bankroll the court case. During the legal skirmishes, the FBI and Oakland police as institutions, as well as several individuals, were named as defendants and then dropped from the case. Despite the government's efforts to scuttle the whole lawsuit, charges against four current or former FBI agents and three current or former Oakland police officers remained.
A mix of supporters, including movement old-timers, packed the courtroom during the trial. The jury and U.S. District Judge Claudia Wilken trooped outside to view the twisted hulk of Bari's station wagon. Bari herself, in a videotaped deposition given weeks before her death, described the investigation's toll on her and her daughters.
The defendants seemed to blame each other. Oakland Deputy City Attorney Maria Bee implied police followed the more experienced, more prestigious FBI agents' lead. Justice Department lawyer R. Joseph Sher portrayed the agents as background advisers - coaches, not quarterbacks.
In testimony, an Oakland police sergeant said a former FBI agent was responsible for a controversial assertion in a search warrant affidavit, but the former agent downplayed his role. The affidavit asserted that the bomb was on the car's back floorboards in the activists' view, indicating their guilt. An FBI lab technician later said the bomb was under Bari's seat, bolstering the activists' claim that it was hidden there to kill her.
Also disputed was why the affidavit claimed the bomb's nails were "identical" to nails found in a bag elsewhere in the car. The nails were brought to court, and it didn't take a carpenter - which Bari was - to tell they weren't similar at all. Sher called it miscommunication.
When Cherney - clean-shaven, hair cut short, beret and ragged jeans swapped for a conservative suit - took the stand, he affirmed his and Bari's devotion to nonviolence. Then, urged by his attorney, he picked up a guitar and sang "Spike a Tree for Jesus." Two of the plaintiffs' attorneys, Dennis Cunningham and Robert Bloom, later apologized: "His lyrics, his music - they're in your face, but he's a man of principle," Bloom said.
The plaintiffs' third attorney, J. Tony Serra, has represented Black Panthers, Hell's Angels and other counterculture cause celebres. The ponytailed icon gave a typical performance, his mellifluous voice rising from hypnotic drawl to apoplectic shout, branding the federal agents "the KGB of the FBI" and the Oakland officers "their willing lackeys."
The judge forbade the jurors to talk to the press until any appeals are done, so their reasoning remains a mystery. But after 17 days of deliberations, of the remaining defendants, the jury found only FBI Special Agent Stockton Buck blameless.
The other six defendants were found liable to varying degrees. Then-Oakland Police Lt. Clyde Michael Sims, now a police captain in Tracy, Calif., was hardest hit at $1.85 million, followed by FBI supervisory agent John Reikes at $1.3 million, both mostly for violating the activists' free speech rights.
Sher wouldn't comment after the verdict. Oakland Assistant City Attorney William Simmons says the city - on the hook for at least a portion of the damages - will appeal. "The evidence shows the officers had probable cause," he says.
Cherney says he may appeal too - he wants a whole new trial against several defendants who were dismissed years ago. Among his targets is Richard Held, who at the time of the bombing was in charge of the FBI's San Francisco office. Cherney and his lawyers claim the now-retired Held, linked to the FBI's COINTELPRO counterintelligence efforts against political dissidents during the 1960s and '70s, masterminded the smear campaign against the environmental activists.
Serra says jurors in this case "transcended" the nation's post-Sept. 11 patriotic furor to see this as "a case of FBI perjury, a case of FBI cover-up that cannot be tolerated." Cunningham says that's especially germane today as the FBI shifts to fighting terrorism, amid concerns about violations of civil rights. "It's not about fighting terrorism, it's about suppressing dissent," he warns.
If they ever do receive money from the jury's award, Cherney says, Bari's will requires that half of hers would go to the Redwood Justice Fund, which bankrolls women's rights and environmental causes. He plans to use his funds for protecting the environment. "The only thing I'd like to buy in this world," he says, "is peace."