FBI Stalling in Bari Case Must Stop, Judge SaysDecember 16, 1998
SAN FRANCISCO -- A federal magistrate said today he will order the FBI to provide further evidence to lawyers for the late Judi Bari and fellow Earth First! activist Darryl Cherney. The FBI had claimed that an appeal by codefendant Oakland Police Department of an earlier ruling in the 7-1/2 yr. lawsuit shielded it from the requirement to provide additional evidence.
Using a delaying tactic seen several times before in this case, the Oakland city attorney last winter filed an appeal of an October, 1997, district court decision denying the Oakland police officers "qualified immunity" from suit. The appeal, now pending before the 9th Circuit Court, has already delayed for over a year the setting of a trial date, and the FBI's refusal to cooperate has compounded the effects of that delay.
Today's hearing on a motion to compel discovery also considered whether Bari and Cherney's legal team would be allowed to take the deposition of former FBI Director William Sessions. Both the FBI and the Oakland Police Department argued to delay discovery and depositions until Oakland's appeal is resolved. Bari and Cherney attorneys Dennis Cunningham and Erica Etelson argued that Magistrate Judge James Larson should order the FBI to continue with discovery and depositions that do not directly involve Oakland Police officers.
Giving a verbal preview of his decision, Larson said that a number of depositions should be allowed, with clear restrictions to protect Oakland's interest. He said he would make his ruling in writing early in 1999. He said he will not allow plaintiffs to take the deposition of William Sessions at this time. He stated that "there was an outline" of the needed proof that Sessions had personal knowledge of the events surrounding the Bari bombing, but that further justification would be needed to allow his deposition. But he did allow that further depositions might establish the necessary connections between Sessions and this case.
"Clearly, this was a victory," said Noelle Hanrahan, a supporter of the activists. "We got the FBI and the Oakland Police Department back into court, and discovery will move forward." The FBI must allow depositions with "rotor clerks" and other FBI personnel, who will be answering questions regarding the FBI's procedures and regulations regarding evidence and record keeping.
On May 24th, 1990, a bomb exploded beneath Judi Bari's car seat after she and Cherney, her passenger, had received death threats aimed at their political organizing in defense of the redwoods. The FBI arrived on the scene in Oakland within minutes and declared that Bari and Cherney -- two prominent nonviolent organizers of Earth First! "Redwood Summer" -- were knowingly transporting the bomb that nearly killed them. The Oakland Police arrested the pair within hours, but no charges were ever filed because there was no evidence against them.
Bari and Cherney filed their federal civil rights lawsuit in 1991, charging the FBI and Oakland Police failed to conduct a legitimate investigation of the bombing, and instead used the bombing as an excuse to conduct an illegal disinformation campaign intended to destroy Earth First! and their environmental organizing. They allege that FBI conduct in this case shows the Bureau is still using the tactics of COINTELPRO, even though the Bureau's covert action program targeting political dissent was found unconstitutional by Congress in the 1970s, and supposedly was terminated.
Judi Bari died of breast cancer in 1997. Her estate and Darryl Cherney are pursuing the suit, which alleges false arrest and conspiracy to violate their constitutional rights.