Bari & Darryl Cherney vs. FBI and Oakland Police
Plaintiffs' Corrected Motion In Limine One and
Opposition to Defendants' Motions In Limine
Preface to Web version
This online version is an excerpt from the document filed with the court August 20, 2001. It includes the complete Plaintiff's Motion In Limine One, including two supporting declarations, and the complete Plaintiff's Opposition to Defendants' Motions In Limine. The purpose of motions in limine is to determine the scope of the trial by challenging witnesses and lines of evidence proposed or potentially raised by the defense, and to oppose defense challenges to witnesses and lines of evidence which the plaintiffs wish to present. A hearing on the motions is set for Friday August 31, 2001 at 10 a.m. in Judge Wilken's courtroom in the Oakland Federal Building and Courthouse, 13th and Clay Sts., Oakland CA. In limine is Latin for on the edge or threshold, referring in this case to the edge or beginning of trial.
The following linked table of contents is not part of the official document, but is provided for convenience in the online version. Tip: if you use a link from the table of contents, you can return to the table of contents by using your browser's "back" button.
PLAINTIFFS' MOTION IN LIMINE ONE: TESTIMONY OF AIR FORCE SAFETY CENTER OFFICIALS AS EXPERTS
A. THE AFSC REPORT AND TESTIMONY DO NOT ASSIST THE TRIER OF FACT, AND ARE PREJUDICIAL AND IRRELEVANT
B. THE AFSC REPORT AND TESTIMONY ARE UNRELIABLE
1. The proffered testimony is based on insufficient facts and data
2. The proffered testimony is the product of unreliable principles and methods, as seen by applying the seven Daubert (and progeny) guidelines
(a) "whether the theory or technique...can be (and has been) tested"
(b) "whether the...technique has been subjected to peer review and publication"
(c) "the known or potential rate of error"
(d) "maintenance of standards and controls"
(e) "general acceptance in the scientific community"
(f) "whether the experts are proposing to testify about matters growing naturally out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying."
(g) "whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give."
3. The witnesses misapplied the principles and methods to the facts of this case
III. CONCLUSION - JUNK(ED) SCIENCE
A. "COINTELPRO" And Other Illegal Policy and Practice by the FBI.
B. & C. Redactions and Documents Missing from the Files
D. Relevance of the "THERMCON" Investigation of Earth First!
E. Qualifications of Plaintiffs' Police Practice Expert
F. False Press Releases and Other Leads Ignored by Defendants
G. The Raid on the 'Seeds of Peace' House
DENNIS CUNNINGHAM (#112910)
3163 Mission Street
San Francisco, CA 94110
415-285-8091 / fax: 285-8091
J. TONY SERRA (#32639)
San Francisco, CA 94133
415-986-5591; Fax: 415-421-1331
WILLIAM H. GOODMAN, Legal Director
MICHAEL E. DEUTSCH
Center for Constitutional Rights
New York, NY 10012
212-614-6464 / fax: 614-6499
Attorneys for the Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
and DARRYL CHERNEY,
FBI Special Agent FRANK DOYLE, Jr., et al.,
and the UNITED STATES,
Case No. C-91-1057 CW (JL)
PLAINTIFFS’ CORRECTED MOTIONS IN LIMINE
OPPOSITION TO DEFENDANTS’
MOTIONS IN LIMINE
DATE: August 31, 2001
TIME: 10:00 a.m.
Plaintiffs move for limiting orders prohibiting the introduction of certain evidence and argument by defendants at the trial herein, as follows:
ONE: Testimony of Air Force Safety Center Officials as Experts
In preparation for this trial, the Dept. of Justice hired two senior officials from the U.S. Air Force Safety Center (AFSC) to give their “expert” opinion that the pipe bomb in Judi Bari’s car was on the “on the floor just behind the driver’s seat,” and thus in plain view and knowingly transported, as defendants Doyle and Chenault alleged in their warrant affidavit. Plaintiffs continue to insist that the evidence shows clearly that the bomb was under Judi’s seat, concealed. As the proffered expert testimony is unreliable and prejudicial, plaintiffs seek an Order barring the witnesses from testifying, per Rules 702 and 403 of the Federal Rules of Evidence (FRE).
The witnesses, Mr. Paul Price, P.E., Deputy Director of the Safety Center, and Dr. Firooz Allahdadi, Ph.D., Senior Technical Advisor, testified in a joint deposition taken on June 18 and July 11-12, 2001. Mr. Price said he was originally contacted through the Air Force Public Affairs office and put in touch with Mr. Sher, who gave him an assortment of OPD bomb scene photos. He said that, having concluded that the bomb was on the rear seat floorboard (and reported it to Mr. Sher), he then chanced to show the photos to Dr. Allahdadi, who proposed that they take the opportunity to develop their capacity for computer modeling of explosions by conducting a series of experiments to confirm Mr. Price’s conclusion. (Depo, p52:20-54:21.)
And so they conducted a series of experimental bomb explosions, first simply with capped pieces of pipe, and then with so-called “witness plates”, rigged to simulate the section of the floor of the car proximate to the bomb; the information from these was fed into the computer system being developed. Then, believing they had determined roughly the right amount of explosive powder needed to recreate the explosion in Judi’s car, they blew up a series of four 1981 (or 1980) Subaru station wagons like hers — with dramatically varying results. They called these car explosions “Admiral Tests,” i.e. the final round of testing, fit for the ‘Admiral’ to come and watch. (Price, p86-87.) Their observations and conclusions are presented in a 79 page report entitled “Reconstruction of the 1990 Car Bomb Incident” (Report), issued in two versions, in March and May 2001, and filed herewith (May version) as Exhibit 1.
None of the explosions reproduced the effects of the bomb in Judi’s car, and the methods used to compare and evaluate the similarities and differences — as opposed to those used to design and carry out the experiments themselves — were flawed to the point of arbitrariness.
In Daubert v. Merrel Dow Pharmaceuticals, 509 U.S. 579 (1993), the Supreme Court held that, while the old rule that scientific evidence has to be “generally accepted” to be admissible would be set aside, the trial judge still must act as a “gatekeeper”, to ensure “that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 589. Later, in Kumho Tire Company, Ltd. v. Carmichael, the Court applied Daubert to non-scientific “technical” experts too. 526 U.S. 137 (1999). Proffered expert testimony, whether construed as “scientific” or “technical,” must “assist the trier of fact” and be reliable. FRE 702 was amended as of December 1, 2000, to codify the Daubert Rules.1
Daubert and its progeny have established at least seven guidelines for determining whether proffered expert testimony is reliable: (a) “whether the theory or technique...can be (and has been) tested”; (b) “whether the theory or techniques has been subjected to peer review and publication”; (c) “the known or potential rate of error”; (d) “maintenance of standards and controls”; (e) “general acceptance in the scientific community” (Daubert, 509 U.S. at 593-94; also, see advisory notes re 2000 Amendments to FRE 702); (f) “whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying” (Daubert, 43 F.3d 1311, 1317 (9th Cir. 1995) (on remand from Supreme Court))’ and (g) “[w]hether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give.” FRE 702 advisory notes; Kumho Tire Co. v. Carmichael, 526 U.S. 137, 151 (1999). “[A]ny step that renders the analysis unreliable … renders the expert’s testimony inadmissible.” In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 745 (3d Cir. 1994). The AFSC Report meets none of these guidelines.
The proffered scientific evidence must “assist the trier of fact”, lest the evidence prejudice the jury by dazzling rather than informing them. “Scientific expert testimony carries special dangers to the fact-finding process because it can be both powerful and quite misleading because of the difficulty in evaluating it.” Daubert, 43 F.3d at 1321 n. 17 (quotes and cites omitted).
The AFSC’s colorful, $100,000 Report is all high-tech dazzle, and offers nothing expert that will inform or assist the jury’s deliberations in this case. At the end of 79 glossy pages, the Air Force supports its conclusion on just three empirical observations, all doubtful, which any juror can make or not for him/herself. They say the bomb had to be visible on the rear seat floorboard because (1) the damage to Test Car #2 (bomb behind seat) most closely resembled the damage to Ms. Bari’s car, (2) some nails attached to the bomb supposedly penetrated the foam in the back of her seat, and (3) other nails penetrated the “headliner” (ceiling) above, and nails can only travel in a straight line from the bomb. (Price, 297-300.) Moreover, these grand conclusions are based only on interpretation of photographs (Report, Figs. 4-1A and 4-1B), since no one from the AFSC viewed Judi’s car until after Test #2 (Allahdadi, p156-60), the FBI did not preserve the foam (Report, p7), and there are in fact no proven nail penetrations in the headliner of Judi’s car, only small rips of unknown origin, abrasions, and embedded specks of dirt and gravel. (Declaration of Robert Jaeger (“RJ”); Report, Figs. 4-9 & 10.)
All of the AFSC’s remaining observations and conclusions are irrelevant in the classic sense of the word, because they in no way modify on their (errant) conclusion that the bomb was behind the seat. Thus, the witness plate tests may have helped to establish that the pipe sat horizontally on the floor, but plaintiffs have never disputed this. The computer simulations may help to establish that the pipe “unzipped” along its welded seam, but we know this from the actual evidence. The witnesses didn’t use their pressure data, insist that the nails being inside or outside the bomb had nothing to do with their possible trajectories (Depo, 303:11-18), etc.
Thus, the testimony about spectacular, inveigling, high-tech events is the epitome of prejudice, and, coming as it does from Air Force scientists, also tends to invite the jury to substitute patriotism for reason. Thus it should be barred under Rule 403 as well. Defendants are not barred from putting on their evidence just because the experts are barred; they will have the photos and the physical evidence; if a jury gets to examine both, it will be more expert than the experts, who relied almost exclusively on photographs themselves. (See Part B-1, below)
Admissibility under FRE 702 also requires that “(1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
Before they even conceived the idea for the experiments, Mr. Price testified that he concluded unequivocally that the bomb sat on the rear seat floorboard, strictly from the photos presented to him by the DOJ.2 (Price, 41:15-19, 51-52.) Afterward, in July 1999, Dr. Allahdadi inspected some of the physical evidence at the FBI office in San Francisco, but he did not inspect Ms. Bari’s car until early 2001, shortly before conducting the final Admiral Test, #4. Mr. Price never inspected the physical evidence. ((Report, p7, 13; Depo, p156-60.)3
Furthermore, it appears that the witnesses based their conclusion on selective evidence. It seems the DOJ never shared with them the “Lord’s Avenger Letter” or SA David R. Williams’ testimony regarding end cap impact points, both of whom locate the bomb under the seat. (Depo, p116:3-12, 205:3-206:20.) Nor did the DOJ explain to them the nature and extent of Judi’s pelvic injuries, so they operated under the mistaken belief that Judi had injuries to her back. (p117-18, 449-452; Report, p6.) And the FBI failed to preserve the evidence of the seat foam embedded with nails, on which Mr. Price hung the most weight (Report, p7; Depo, p140:1-11, 264:13-15), so he hung all that weight on a couple of photographs. (Report, Figs. 4-1A & B.)
The witnesses effectively admitted that they lacked sufficient data when they issued two, equally positive but different versions of their “final” report. After adding a third Admiral Test to the two they had originally planned, and submitting a “Final Report” dated March 2001, someone(s) evidently decided that the conclusion was faulty because the AFSC had failed to test equal-sized charges under the seat as well as behind it. So the AFSC went back to the field, with Mr. Sher present (p463:10-14), and blew up a fourth car, then submitted a new “Final Report”, dated May 2001, with the Conclusions section rewritten to account for the new test.
(a) “whether the theory or technique...can be (and has been) tested”
This factor contemplates the classic scientific question whether the results are capable of falsification/repetition. Daubert, 509 U.S. at 593. The AFSC used an “iterative” process in an effort, essentially, to reverse-engineer the power and location of the bomb. They did this by blowing up Subaru station wagons. In theory, this process requires changing one variable at a time, then comparing the results with the target in order to try to lock in a variable and move on. (Allahdadi, 155:1-12.) “If you vary more than one parameter at a time, and then you get an anomaly, you don’t know which caused it or maybe both...” (Price, p356:2-5, misattributed to Mr. Sher.) However, the experimenters did not change one variable at a time, but several, and did not attempt to maintain control of a number of variables. (See subpart (d), below.) Dr. Allahdadi defended this practice in the name of “optimization. . .to get the most results from the test” (p318:12-16), even while his colleague Mr. Price said such a practice violates “one of the cardinal rules of testing. . . to only vary one parameter at a time.” (Price, p355:24 - 356:9, misattributed to Mr. Sher.)4 The scientists variously described their process as “guesswork” (p302), picking a number “out of my hat” (p322), using “a brute force testing technique” with “no physics involved” (p.323), and “we’ll shoot it and see what happens” (p.323).5 Because they haphazardly changed more than one variable in each “iteration”, and failed to keep track of numerous others, the results cannot be duplicated, and predict nothing. (RJ Affidvit.) See Claar v. Burlington N.R.R., 29 F.3d 499,502 (9th Cir. 1994) (experts disqualified in part for failing to rule out alternate explanations).6
In response to the question whether one could read about the AFSC’s methods, Dr. Allahdadi replied “This is very unique. And I don’t recall any documentation or literature that explains it.” (Depo, p510-512.)
(c) “the known or potential rate of error”
There is no known rate of error for these experiments. Dr. Allahdadi testified, seemingly arbitrarily, that he was willing to tolerate errors within a range of 15%. (p477:24-478:1, 466) However, given the number of variables which, even by the AFSC’s own reckoning, can influence the blast dynamics — most of which the AFSC utterly failed to ‘control’ for — the error rate is so great as to totally invalidate any conclusions. (See discussion which follows.) Moreover, given the AFSC’s assignment of determining the location of a bomb within inches, a 15% tolerance seems unacceptably large.
The Report acknowledges that a long list of variables can affect the blast and resulting damage, but the AFSC utterly failed to control for most of them, or to test or analyze their combined effects.7 (RJ Declaration.) For example, the AFSC acknowledged that mixing nails and flash powder inside the pipe “may reduce the burn rate, the peak pressure of the explosion, and the fragmentation of the pipe” (Report, p62) — influencing in turn the damage to the floorboard (p63) — but they appear to have varied the quantity of nails at whim; Dr. Allahdadi was unsure of the process by which the nails were added, implying at one point that they were bundled in duct tape, and elsewhere that they were dropped in loose. Since the Report is silent about the process, the information is apparently lost. (Depo, p229-30, 322:3-8, 324:15-325:5; 326:9-327:3, 328:9-24; Report, p62.)
The AFSC also acknowledged that key variables, such as “the effect of the percent of loading, orientation of the nipple seam, placement of the device, and packing density” can never be known. (Report, p62.) Remarkably, despite their claim that an exploding pipe tends to “unzip” first along its welded seam (p32), and that the orientation of the seam (up, down, or angled) is therefore crucial in explaining the damage to the floorboard — because the unzipping pipe allegedly “snowplows” through it (p63; 64-65) — the AFSC made no effort to standardize the pipe seam orientations in the Admiral (Car) Tests. (p62.)8 As the Report somewhat ruefully admits, “many variables and parameters come into play in the analysis.” (p5.)
Again, Dr. Allahdadi testified that the method used “is very unique” and that he doesn’t “recall any documentation or literature that explains it.” (510-512.) In addition, he and Mr. Price both testified that they accepted the assignment — and received permission to go ahead with it — in part to develop their own new, untested, modeling capability. (p44, 53, 72-73.)
(f) “whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation, or whether they have developed their opinions expressly for purposes of testifying.”
These experiments were conceived and conducted for the purpose of this litigation. (Report, p2, 4.) The AFSC relied completely on a body of evidence selectively presented to them by the DOJ (See Part B-1, above), who asked Mr. Price to draw a conclusion from the photographs alone. Mr. Price did so, and he was very certain. (Price, 52:20-22, 68:5-8.) Only afterward, Dr. Allahdadi proposed a series of tests to “show that [Mr. Price’s] conclusion was accurate” — not to answer any lingering questions — and also for the scientists own purpose of “increas[ing] the modeling and simulation capability” of the Safety Center. (p53:24-54:21.) Some time during the testing, Mr. Price learned that the location, and possible visibility, of the bomb was the ultimate issue. (Price, 137:14-138:3). Thus the AFSC Report can be seen as an exercise in result-oriented reasoning.
The witnesses admitted they do not regularly work with “low order” explosives (outside their examination of propellants and pyrotechnics used by the military or space program), have had no experience analyzing pipe bombs, and were never called upon before to analyze a preexisting body of evidence, for a court case or otherwise. (Depo, p22-23, 28-34, 74.) The computer modeling they did was the first such effort at the Safety Center. (p73.) Mr. Price stated there was no science as such involved in his review of the photos. (p510:180-22.) Dr. Allahdadi equivocated about whether he also drew a conclusion from the pictures, first saying he did (p52:20-53:19), and later that he did not. (p65-67, 72, 80).
The AFSC Report does not earn the conclusions it reaches; rather, there is “too great an analytical gap between the data and the opinion proffered.” General Electric Co. v. Joiner, 522 U.S. 136, 146 (1997). The four Admiral Tests all failed to recreate the original incident. Not one of them replicated the size and shape of the hole in the floorboard. (Compare Report pgs. 13, 38, 42, 47, and 54.) And while the AFSC concluded that Test #2 most closely approximated the actual blast, the most telltale evidence — the driver’s seat — suffered completely different damage than Ms. Bari’s seat. Whereas her seat had a hole down throw the seat cushion, mangling the springs, the seat in Test #2 has a hole through the back, and the bottom cushion is mostly in tact. (Compare Figs. 4-2A & B, and 6-17 in the Report.)9 Also, while the pipe in
Judi’s car ‘unzipped’ completely, the pipes in Tests 2, 3, & 4 only partially unzipped. (Compare Figs. 4-3A, completely unzipped and bent back on itself, with Figs. 6-21, 6-29, and 6-43.)
The witnesses emphatically state that any nails which penetrated the car ‘headliners’ or seat foam must have traveled on a straight line from a bomb, without ricocheting, otherwise they would have lost the necessary momentum. (Depo, p 298:17-300:19; Report, p74(3).) But then they attribute the nail melted into the seat back of Test Car #4 (bomb under seat) to ricochet! (Report, p58, Fig. 6-37, and p74(3.4)) This logic is utterly tendentious, given that (1) no nails appear to have penetrated Ms. Bari’s headliner, their surmises notwithstanding, (2) the headliners (just fabric or plastic over cardboard) and foam are soft and easily penetrable, and (3) the nail which had enough momentum to embed in the back of the car seat in Test #4 probably easily could have penetrated the soft headliner or seat foam too. (RJ Declaration.)
The AFSC scientists contend that “excessive scorching and burning of the seat” and the sandbags in Admiral Test #4 (bomb under seat) help prove that the Oakland bomb was not under the seat, since Judi’s seat was not scorched. (Report, p55.) However, (1) the Field Report reveals that an actual fire broke out after the blast, which the AFSC self-servingly neglected to mention, and which is a different phenomenon from the blast, and (2) Car #4 in fact shows very little scorching of the driver’s seat. (RJ Declaration; Ex. 4 & 5.)
After receiving assurances at the deposition on 7/12/01 that the AFSC evidence, including especially the Admiral Test cars, would be preserved for inspection “until trial is over,” (p493-94; 402:19-20), plaintiffs began making arrangements for an inspection on or about 8/3/01. On 8/6/01, plaintiffs received an e-mail from defense counsel, relaying word that Test cars 1-3 had been junked. (Ex. 4 & 6.) Frustrated, plaintiffs pressed ahead with the inspection anyway, sending associate Ben Rosenfeld, Esq. and expert Robert Jaeger to the EMRTC testing facility in Socorro (about 70 miles south of Albuquerque) on 8/15/01. (Declaration of Ben Rosenfeld.)
The two arrived at about 11:15 am., intending to spend the day photographing evidence (complicated by the perils of possible unstable debris and rattlesnakes) but instead were hurried along and made to finish at 1:45 pm. The Fourth Car was intact, but poorly preserved; it was exposed to the elements like the others, and pieces of the car which had blown out were haphazardly piled inside it. Mr. Marvin Banks, the EMRTC Director who oversaw these tests, stated that he considered the junked cars too altered to be of use, and urged that the photographs told the best story. (See Declarations.)
Thus, plaintiffs have been deprived of the opportunity to draw their own conclusions from the physical evidence, where the crux of their complaint is that the AFSC mistakenly interpreted and over-relied on photographs. In sum, this proffered expert evidence is clearly unreliable and prejudicial, and therefore should be kept out under Daubert and FRE 702 and 403.
Note: Plaintiffs' Motions In Limine Two through Five are not included in this online version.
A. “COINTELPRO” AND Other Illegal Policy and Practice by the FBI.
Defendants protest plaintiffs intent to introduce evidence and argument about the history of deliberate FBI wrongdoing, and knowing illegal activity designed to “neutralize” groups and movements of dissenters in this country, for the particular, limited and necessary purpose of countering the skepticism many jurors will naturally have towards the very possibility that sworn law enforcement professionals — and particularly FBI agents, who have been heroically propagandized to everyone in America all their lives — would ever do such things. While a fair and adequate voir dire will no doubt go a long way towards establishing the obligation of jurors to ‘go where the evidence goes’, to borrow a phrase from defendants, more is needed. The prejudice involved is deep-seated and emotion-based, and compounded in many cases by a still more “conservative”, fearful feeling some jurors can be expected to harbor, to the effect that, if the FBI believes covert action is needed to “neutralize” people it regards as a threat, they should go ahead and ‘do what they have to do’, regardless of the illegality, unconstitutionality or human harmfulness of their actions. Such beliefs are generally accompanied by the feeling that private citizens should not be allowed to challenge such conduct with lawsuits.
Even if those with such an authoritarian point of view are disqualified, plaintiffs are left with the larger reality that such misconduct is ‘counter-intuitive’ in many people’s minds; perhaps most peoples’. The logic behind the question, “Why would they do it?” — Why would they supposedly violate their oaths, risk their careers, disgrace themselves and the agency in this way? — has real force, and will undoubtedly be pounded by defendants from start to finish of the case. The evidence in question is needed to supply the answer: Because that’s what the FBI does, or part of what they do; it’s part of the job, part of the culture or ethos of the FBI as well as its policy and self-defined mission, and it always has been. Hence the relevance of this history.
Its relevance is the same as that of habit or custom evidence in a run-of-the-mill tort case, or pattern and practice evidence in a ‘policy’ (Monell) case, or expert evidence of past illegal activities by a company, such as toxic dumping, illegal emissions, short-weight packaging, duplicate service charges, etc. Like evidence of prior bad acts admitted against an individual under Rule 404(b), its purpose is to show motive, plan, lack of mistake, etc, and, beyond that, to show a culture or consciousness within the FBI which has animus to the likes of plaintiffs and their movement as an article of faith. As noted, there would be no question of admitting such evidence if the man in charge was still before the Court, because of his proven record of past personal involvement in such activities. But that involvement was also part of the larger picture of unremitting, unrepentant, concerted malfeasance which plaintiffs need to establish.
Plaintiffs have the burden of showing animus, or evil motive, as an essential element of their First Amendment claim against the defendants. The evidence in question shows a policy or custom within the agency whereby illegal acts against certain types of dissidents were tolerated and sometimes encouraged. In the case of plaintiffs’ witness, the former agent Jack Ryan, it turned out to be a condition of employment; when he protested an assignment from the FBI to investigate lawful political activity, he was fired! (See Report of Jack Ryan, Ptffs’ Status Report, Etc., of 7/2/01, Appendix C-1.) The defendants here were operating under the same policy, and this evidence shows they would tend to act illegally, in accordance with the political purposes of the policy — and apparently under a requirement, albeit a secret one, of their jobs.
Thus, plaintiffs would not be asking the Jury to infer an animus on the part of these agents from things other agents did at other times, but, rather, to understand that the defendants would have acted and been willing to act illegally, on a policy of animus — not to mention impunity — which, historically, abides within the agency they serve. In this respect the evidence defendants seek to bar is essential to plaintiffs’ case under the First Amendment, and far more probative than prejudicial. Therefore this in limine demand must be denied.
The FBI defendants naturally fear exposure of the ways their illicit campaign against plaintiffs is reflected in their files, along with apparent efforts to cover it up by renumbering and other adjustments, and redactions based on broad and often highly dubious claims of privilege. They discuss the scope of the discovery process without reference to the large portion of it taken up by plaintiffs’ forced pursuit of hidden text in places where redactions could not be justified. The Magistrate saw a number of these, and the Court one crucial one, the ‘heavy hitters’ paragraph. Yet the defense take umbrage at the notion that any negative inference might be drawn from their exercise of a privilege, and insist that the alterations in one of the files, THERMCON, be put off limits.
What is reflected in the files — and in defendants’ demand to limit plaintiffs’ evidence and comments about them — is the nature of the FBI’s move against Earth First! in California in 1990, on the heels of what no doubt appeared at the time as a very successful “sting” operation in Arizona — which also began as a campaign against Earth First!, as defendants have now affirmed. (Memo, p.13) The defendants, particularly Reikes and Sena, tried to deny that their own nascent “enterprise investigation” in Santa Cruz was similarly targeted. In making sworn denials, the two evidently relied on the then-redacted status of contrary statements, disclosed only after their depositions, as described in plaintiffs’ recent Status Report (p.13); they then stood exposed in the lie by the disclosures — even as they were also contradicted by Richard Held’s testimony about the Earth First! “predication” for the FBI’s investigation of the bombing. Like the “heavy hitters” paragraph, these “terrorist suspects” redactions are key to showing defendants’ deceptions, and the foundation of the conspiracy with the Oakland officers. Documents missing from the original serial sequence in the bombing file serve the same purpose. Defendants have been unable to explain how or why the bombing file was re-numbered.
Plaintiffs have no interest in bootless attempts to decry to the Jury the use of a privilege which has been sustained by the Court, obviously, and need no Order to desist from such leading-with-chin. Plaintiffs have a strong interest, however, in every evidentiary aspect of the FBI files in this case. These specific redactions, re: heavy hitters and terrorist suspects, are avatars of two of the crucial lies which were the substance of the FBI’s conspiratorial proposition to the OPD: these people are terrorist suspects, Earth First! is a terrorist group, we have ascertained that they were carrying the bomb, and we had a tip that Earth First heavy hitters with a bomb would be going to Santa Cruz to set it off. So, let’s you guys arrest them...
A tissue of lies, substantially exposed by these ‘redactions’ and the circumstances surrounding them. Plaintiffs can not be fairly forbidden to present evidence about missing documents and invalid deletions from these files. (Ex. 14.)
Plaintiffs have argued from the beginning of this case that the FBI-police attack on them as supposed terrorists had its tone-setting prologue in the FBI’s “THERMCON” case in Arizona. There, as previously recounted, a small group who engaged in acts of sabotage, to protest big-money corporate assaults on the environment and sacred Indian religious sites, was infiltrated by an FBI agent, working “under cover” with the help of an unstable individual with a grudge against one of the people in the group, who had become an FBI informant. The group was not part of Earth First! and had not made or claimed any connection to it, save that one group member, Margaret Millet, as she testified, was separately and coincidentally an Earth First!er. The undercover investigation was entitled “Earth First”, however, and only later renamed “THERMCON”, and the agent, Michael Fain, immediately began working to forge some culpable connection from the group to Earth First! notable David Foreman; later SA Fain mistakenly recorded himself on his hidden body wire, saying to a colleague that Foreman “is the guy we need to pop to send a message.”
As noted, SA Fain spent his main energies providing material support, money and guidance for the group’s illegal actions, and constantly but unsuccessfully sought to persuade them to use explosives. He and the FBI stood by while group members brought down power lines leading to the construction site of a future uranium mine then being built on sacred land. He never had to testify about his own illegal actions against and as part of the group, because — much as in the publicized case of Wen Ho Lee — the FBI had to back off during the trial, and an agreement was reached whereby a huge inventory of charges against group members were dropped, in return for a face-saving plea to one count, resulting in probation for Foreman and minimal jail time for Ms. Millett and two others. See Declarations of Peg Millett & Mark Davis, 8/97; (Ex. 13.)
Several defendants and other San Francisco T-Squad agents had THERMCON work assignments, sent from Phoenix, involving surveillance and investigation of a number of California Earth First!ers, who — surprise — soon came to their attention again as the Santa Cruz “enterprise” case unfolded, followed by the bombing, and the possibility of a similar “sting” apparently began to tantalize the locals. So the relevance of this evidence is, evident.
Ironically — since they have proffered Air Force safety experts who have no experience with pipe bombs, as purveyors of a supposedly conclusive (but patently inaccurate) finding that the bomb was on the floor behind the driver’s seat of Judi’s car (See above) — defendants demand that plaintiffs’ police practice expert, former police chief and chief of detectives Anthony Bouza, be barred from testifying, because he candidly admitted he had no particular expertise with respect to bombs. This is a rank appeal to the Court’s prejudice.
Chief Bouza was never offered as an expert on bombs or tool forensics, any more than he represented himself as such, and plaintiffs have a different, highly qualified bomb expert, ready to testify. The Chief’s relevant expertise, which he fully established at deposition and vindicated with his summary judgment evidence, is in the evaluation of detective work, and police decisions about the existence of grounds to arrest, or apply for a search warrant. Nor was his analysis of the conclusions supposedly reached by defendant Doyle about the bomb being behind the seat, or the nails being identical, based on anything different.
As noted, a blind person could tell the bomb was under the seat, and not behind it, and no great expertise would have been needed to understand this, only honesty and good faith. Ditto the nails. Bouza rightly said Doyle had no business calling the nails in the bag(s) “identical” to those in the bomb without, precisely, some forensic foundation for the use of that term; as we have seen, however, Doyle’s fabrication went far beyond that type of casual misrepresentation. The nails in the bag(s) were of a totally different type, and the unequivocal statement that they were identical was a flagrant lie, crucial to the (false) grounds stated in the Affidavit.
Defendants can be expected to include in their Reply on these motions a further attack on Chief Bouza’s qualifications, derived from his similarly candid statement that, not being a lawyer, he would not make pronouncements about the presence or absence of “probable cause” as such. That didn’t change the fact that, as he showed, he was fully, expertly and exhaustively aware of and versed in the ‘principles and methods’ properly to be used in determining when grounds for arrest or search exist, when they don’t, and when they’re being fabricated in a frame-up. Suffice to say, Chief Bouza’s ability to evaluate the acts and omissions of FBI and police investigators in concocting false charges against the victims of an attempted murder, and failing and refusing to investigate the crime that occurred, are not diminished by the fact that the murder was attempted by means of a bomb. Would defendants also assert that he was unable to supervise bombing investigators who worked for him in New York when he was chief of detectives? It amounts to the same thing.
There is nothing about any supposed deficiency defendants purport to discern in Chief Bouza’s qualifications as an expert in proper and improper police practice which they would be unable to meet and/or exploit in cross-examination. They have not cited or described any opinion he has given or will give which does not comport with the rules of reliability newly incorporated in R.702, or shown any unfair prejudice which could arise from his expert testimony. This in limine demand must be denied.
Along with the numerous written threats and death threats received by Judi and Darryl and other Earth First!ers in the weeks before the bombing in Oakland, which defendants immediately took physical possession of, and were repeatedly told about — but of course ignored, since they had no interest in finding the bombers — were two additional leads in the form of supposed press releases, made up to look like they came from Earth First!, but clearly issued by enemies of Earth First! Defendants demand suppression of these and other documents constituting or reflecting investigative leads which were ignored by defendants, like the threats, as part of their failure and refusal to legitimately investigate the bombing. They give the rather startling grounds that “the plaintiffs have never produced any evidence that any of the original documents were ever provided to the FBI or the OPD.” (Memo, p.21) They complain that, without such “originals”, no investigation could be done, so the documents should be barred from evidence. It’s all the plaintiffs’ fault, naturally.
In point of fact there were no “originals” of these documents, of course, since, unlike the threats, these were leaflet-type items, passed out in quantity for maximum effect, and who knows who had any “master copy”? More to the point, the FBI in the person of defendant Buck was reliably told who the author or source of the fake releases probably was, and they never even went to see the guy. See (Ex. 13.) Moreover, they never investigated the original threat documents given to them by Judi’s lawyer. Instead, defendant Hemje squirreled these materials away in the evidence vault, untouched. So what was or would have been the point of giving them anything?
Defendants’ statement in this section, that the record shows they “repeatedly made contacts with logging companies in Northern California to determine whether such entities (or the executives thereof) had any role in the bombing,” reads like the mockery it is. In fact, the record shows their myriad contacts with logging company people were devoted to gathering political ‘intelligence’ against Earth First! — and sometimes simply manufacturing it — while remaining committed to the theory that “the northern California environmentalists” were behind the bombing. See (Ex. 15.) Judi had a file in her car labeled “Threats and Fakes”, containing copies of the fake press releases and other ominous documents, which was a mother lode of investigative leads in the wake of the bombing. Defendants ignored the contents completely for months, and never followed up on any of the leads they provided. Now they want them suppressed, or some of them, so that their pointed, conspiratorial failure to do their work will not be exposed. This request must be denied.
Both sets of defendants are avid to suppress the telltale, conspiratorial abuse of their authority to build up the sensational impact of the false arrest, shown by their wild and woolly raid on the Seeds of Peace house in Berkeley. After learning from Shannon Marr and David Kemnitzer that plaintiffs had been at a meeting there the day before the bombing, defendant Sims ordered that the house be entered on an emergency basis, supposedly to ensure that no other explosive devices were present. Sims briefed and instructed other Oakland and Berkeley P.D. officers at a nearby location beforehand, then a large flying squad cordoned off the entire block of California Street and moved on the house. Seeds member Sarah Willner testified she answered a banging on the door and was met by an officer with his gun pointed at her face. She and others present were handcuffed, taken outside, and seated separately on the ground, each with an officer guarding him or her with guns pointed at their heads, for a period of approximately two hours.
During this time, other officers and ATF and FBI agents, despite obviously finding no trace of other bombs or any ‘bomb factory’ upon entry, proceeded to tear up the house from one end to the other. Other Seeds members who returned to the house during the raid were immediately arrested and held under guard with the first group. A man with no connection to the house or Seeds of Peace, but who also dressed ‘like a hippie’, was stopped simply passing by. When he bridled at officers demanding identification and reaching into his pocket to take his wallet, he was knocked to the ground and arrested with the others. (Ex. 16.)
Darryl Cherney’s friend and fellow concert performer, George Shook, had also been at the meeting and stayed at the house, and had gone on errands that morning in Darryl’s van. When he returned and stopped at the yellow ribbon at the end of the block, he too was placed under arrest. When the van was searched, the officers pretended there was danger in a cardboard box they found, containing several copies of a tape-recorded album of Darryl’s songs. They retrieved it from the van with long ropes, then blew it up by remote control for the delectation of the attending media crowd; footage of the explosion then played repeatedly on the TV news in the following days, as part of the red-hot story about the terrorist bombers from Earth First!
The Seeds members were told nothing of the reason for the raid or their arrest for about two hours, when an officer finally said only that friends of theirs had “been hurt”, and the police needed to talk to them; they agreed to go to police headquarters “voluntarily”, whereupon they were un-handcuffed and driven downtown, then placed in locked rooms for several hours more. They were released around nightfall, having been held unlawfully, and for no reason; police have no authority to arrest people not suspected of crime on the chance they might be witnesses, that’s elementary. Marks v. Clarke, 102 F.3d 1012, 1025 (9th Cir.1997).
When they were released, they were asked to remain for questioning, despite that none had been attempted in the seven hours they were held. Having learned in the meantime that Judi and Darryl had been bombed and then accused of possessing the bomb, they said they wanted to talk to each other, and lawyers, before being interrogated. None of the defendant investigators made any attempt to talk to any of them thereafter, but both groups claimed their investigation had been stymied because the Seeds people and other associates of plaintiffs had “refused to cooperate” with them.
The relevance and importance of this bogus raid in showing the evil motives of defendants is patent. Their unconstitutional purpose, and the object of their conspiracy, was to smear and defame the Earth First! movement in the mainstream press as “a violent terrorist group involved in the manufacture and placing of explosive devices”, in the words of the false affidavit. The raid ordered by Lt. Sims — and the colorful footage of the officers blowing up Darryl’s tapes — readily fed into the sensational coverage of the bombing. The groundless arrests of the Seeds members, the intimidation, and the malicious destruction of the interior, were part and parcel of defendants’ attack on Earth First! This evidence is relevant and probative.
DATED: August 20, 2001: ______________________
Attorney for the Plaintiffs
Plaintiffs wish to acknowledge the help of Ben Rosenfeld, of counsel, and John Tanghe (3L, Boalt Hall), in preparing these pleadings.
CERTIFICATE OF SERVICE
I am a citizen of the United States, over the age of 18, and not a party to this action. I certify that I served the within Corrected Motions in Limine by emailing then mailing (with Appendix) true copies to Counsel for Defendants R. Joseph Sher, Dennis Barghaan, and Maria Bee, at their offices in Washington, DC and Oakland, respectively, on August 20, 2001.
1 FRE 702: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”
2 Mr. Price’s photo interpretation skills are unconvincing in light of such misestimates as calculating the floorboard hole in Judi’s car at 18” x 30”, where later measurements showed it was 18” x 45”, or 33% longer. (Report, p13.)
3 The fact that an expert had only recently physically examined the actual evidence, after having already made his initial conclusions based on pictures, “augmented” concerns about reliability. Kumho Tire Co., 526 U.S. at 155.
The FBI also sent Dr. Allahdadi a file box of documents, of which he said he only read a little bit, finding it boring (p121, 481), and he in fact misestimated the file box as a foot thick stack (p122) before he carried out the whole box from his office toward the end of the deposition. (p478:21-23.)
4 Mr. Price volunteered this mea culpa to explain why they blew up a fourth car, after submitting their final report. From Admiral Test #2 to #3, Mr. Price explained, they had both increased the amount of powder and changed the location of the bomb, thus invalidating the results. (In fact, they had also decreased the number of nails.) So according to Mr. Price, in Test #4 they returned to the same amount of powder used in #2, and only moved the bomb (under the seat). Ironically, however, by moving the bomb under the seat, they also created a “confining effect”, which enhances the power of the blast (Report, p62), tantamount to increasing the powder after all. Thus, the physics are so dynamic that the Air Force could not change just one variable even when it tried. (RJ Declaration.)
5 Some of the decisions had to be taken relatively quickly, since Admiral Tests #s 1 & 2 were performed on the same day, hours apart. While they “were reviewing the results of 1 they were setting up to do 2.” (Price, p505:23-506:1).
6 There is now another reason why no one can duplicate the Admiral Test experiments: The AFSC has junked three of the cars, and mishandled the fourth, depriving plaintiffs or a jury of any chance to inspect them in their “pristine” exploded condition, or make critical measurements, or look to evidence outside the pictures which the AFSC people took of their own work — all despite an agreement on the record that the test evidence would be preserved. (See discussion, Part III.)
7 Culling from the AFSC’s own report, all of the following variables can influence the blast physics and/or the experimental results: location of bomb, direction of bomb axis, composition, amount and yield of explosive, location and number of nails, and orientation of pipe seam (p62, 21, 25, 31); packing density of explosive (p25, 62); aluminum grain size (p21, 33); burn rate (p18); “deflagration” vs. detonation (p21); “continued burning of flash powder” (p65); pipe strength, weld strength, and significantly varying imperfections in pipe metal, influencing how pipe disassembles (p30, 31, 62); “breakup mechanism” (p31); fragmentation (p63, 67); end cap failure or not (p67); confinement or not (p62); angle of fragments (influencing length of tear) (p33, 64-65); reflected pressure waves (p65); physical condition of vehicle floor (p22, 31, 63), including thickness of steel (p21-22) and rust (p63); offset distance of bomb from floorboard (p26, 33, 65), boundary effect (between floorboard and frame or welds) (p33); amount of clearance between car floor and ground (p23, 24); mixing of nails with powder, possibly affecting burn rate, peak pressure, and fragmentation (p63); and the “inherent random element” in pipe breakup (p33).
The Report fails even to mention other influential variables, such as the effects of unfilled space inside a bomb, the thoroughness of mixing of powder, the presence of even trace amounts of water in the mixture, the effects vel non of carpet over the metal floorboard, or the potential effects of using sand bags to simulate the occupants in dampening or re-directing blast pressure, where sandbags are commonly used as blast shielding materials, and people are more like water bags than sand bags. (RJ Declaration.)
8 Dr. Allahdadi’s testimony that the car pipe seams were all oriented up flatly contradicts his own Report. (p371:21-25.)
9 In point of fact, plaintiffs learned during an inspection on 8/15/01 that the seat in Test #2 has two holes in the back (Ex. 4), but the AFSC witnesses only commented on one (Report, p42), suggesting that they over-relied on photographs even in analyzing their own data! (RJ Declaration.)
 The AFSC printed two very misleading photos of the Car #4 headliner (Fig. 6-39), which suggest that it is hardly scuffed or marked, when in fact two other AFSC photos from the same sequence, produced to plaintiffs at the deposition reveal marks and small tears in another region of the headliner which are qualitatively no different from those in Ms. Bari’s headliner. To explain this, Dr. Allahdadi testified that the headliner in Car #4 was not punctured. But it was, as shown by various pieces of debris sticking out of it, depicted in Ex. 4. (Depo, p408-411; RJ Declaration.)
 Defendants make much of the alleged remoteness in time of COINTELPRO, and the fact that the Bureau supposedly ended the program when it was brought to light in the Church Committee hearings in 1974-75. But plaintiffs are not fixated on the famous acronym, any more than they would take the Bureau’s word that the practice was ended. The evidence is to the contrary, as shown by, e.g, the history of actions intended to disrupt and “neutralize” the Committee in Solidarity with the People of El Salvador (‘CISPES’), discussed by Prof. Zinn, and the Sanctuary movement, and the recent revelations concerning the daytime activities of the infamous “mole”, Agent Robert Hansen — consisting of spying and intrigue against any number of dissident groups, supposedly in a hunt for signs of “Soviet influence”, which continued right up to the time of his arrest, long after the Soviet Union ceased to exist. There is more...
 Complete quote: “I don't really look for them to be doing a lot of hurting people. [Foreman] isn't really the guy we need to pop — I mean in terms of an actual perpetrator. This is the guy we need to pop to send a message. And that's all we're really doing. . .Uh-oh. We don't need that on tape. Hoo boy.”
 Chief Bouza also testified that, like David R. Williams, the FBI lab man whose supposed comparison analysis resulted in their claim that they had found matching nails, he has no experience in the forensic examination of supposed tool marks.
 Defendants were shown that the letterhead on the ‘press releases’ was fake (Ex.14, p.5), that Darryl’s name was misspelled, etc; and also that copies were passed out to workers at one or more of the mills by representatives of Hill & Knowlton, publicists for one of the timber companies, and they never investigated that information either.
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