Judge loosens jury gag order, proposes way to speed appeals (July 3, 2002)
Former jurors in the trial of Judi Bari vs. FBI were contacted by the court clerk on Tuesday July 2 and told they are now free talk to the media about the case, but they are still barred from talking to attorneys for either side. To date, two of the jurors have given interviews to reporters.
At a June 28 hearing, Judge Claudia Wilken said she intended to loosen the unusual post-trial gag order she had placed on jurors. She also suggested a way to quickly dispose of the undecided false arrest claim by Darryl Cherney so that appeals may begin. Because the jury hung on Cherney's false arrest claim, Judge Wilken has not yet officially entered the $4.4 million jury verdicts revealed on June 11.
The judge's decision to loosen the jury gag order was the result of a motion by the San Francisco Chronicle and the Oakland Tribune. She had previously ordered the jurors not to talk about the case or their deliberations until all appeals were resolved, a process that could take several years. Wilken said her reason for the highly unusual gag order was that there is still a pending defense motion alleging that lawyers for the plaintiffs attempted to improperly influence the jury by speaking at a rally outside the courthouse at a time when jurors were leaving for the day. Wilken polled the jurors about the matter before releasing them, and every one said they were not influenced in the least by the annual May 24 rally by Bari supporters on the courthouse grounds. Wilken did not rule immediately on the motion but took it under submission, saying she intended to loosen the gag order to apply it only to the issue about the rally.
Turning to the undecided false arrest claim, Wilken said that the earliest possible date for a retrial would be September 2003. But she suggested a way to avoid the 14-month delay of holding a new trial, provided both sides agreed. Under Wilken's plan, she would dismiss Cherney's false arrest claim without prejudice. Then post-trial motions and appeals could begin. If any part of the verdict is overturned on appeal -- which would result in a new trial anyway -- then Cherney could refile his false arrest claim as part of that new trial. But if the verdicts were fully affirmed on appeal, then Cherney could not refile the claim.
The plaintiffs' lawyers conferred briefly with Cherney and Darlene Comingore, who represents the estate of Judi Bari, and then accepted Wilken's plan. Cherney explained after court that they had already planned for such a possibility. He called the unresolved false arrest claim "our ace in the hole," meaning that even if all of the rest of the case is lost in the appeals court, he can still come back and have a new trial on the arrest claim. And if the $4.4 million judgment is affirmed by the appeals court, he's willing to give up the false arrest claim.
However, Justice Department attorney Joe Sher said he wanted more time to research the law before deciding whether to agree to Wilken's proposal. He proposed waiting to September 1 to file a motion, a schedule that would lead to the next hearing being held in November. Plaintiffs' attorney Bob Bloom objected strenuously, saying the case has dragged on for 11 years due mostly to delaying tactics by the defense, and he urged the judge to expedite the process. He proposed to file a motion "on Monday" embodying Wilken's plan. After allowing two weeks for defendants to respond and a further period for plaintiffs to answer, a hearing on the motion may come in early September.
Darryl Cherney told reporters after court that he and the estate of Judi Bari definitely will appeal the dismissal in 1997 of former Special Agent in Charge Richard W. Held and other FBI higher-ups. "If the government wishes to continue playing hardball, which they have all this time, then certainly we will too. ... We intend to win the Richard Held motion and then we intend to put Held, Special Agents Hemje, Conway, Appel, Mewborn and Webb on trial. We are in a position of strength. If it takes another two or three years that's well within our capability of waiting, or for that matter five or seven years."
Cherney added, "I think it's important that we not turn our movement into a perennial defense committee. There are forests that need saving. There's our planet that's being assaulted. Darryl Cherney's lonely false arrest claim is not as important the other work that I have to do. However, that claim remains an ace in the hole. We're not dropping it completely unless we win in the appeal process on all our other claims."
Cherney favored lifting the jury gag order completely. "People in this country have the right to associate with each other. ... It's a remarkable irony that we would win a First Amendment freedom of speech trial against the FBI and then the judge's first act at the conclusion of the trial is to violate the First Amendment."
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