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  Jury Watch Archive Page  updated June 10, 2002 

This is an archive of Jury Watch updates copied from the home page. 

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Day 1 - Friday, May 17 - Case goes to jury -- Judge lets two FBI agents off

The historic trial of Judi Bari and Darryl Cherney  vs. FBI agents and Oakland Police officers went to the jury today after six weeks in federal court in Oakland California. The 8 woman, 2 man jury immediately elected a woman foreperson and began deliberations shortly after 1 PM. Two days before, Judge Claudia Wilken dismissed the case against two of the FBI defendants after ruling that there was insufficient evidence that they had any "animus" against the plaintiffs or Earth First!, and so they were immune from being sued. The four remaining FBI defendants are Frank Doyle, John Reikes, Stockton Buck and Phillip Sena. The three Oakland Police defendants are Michael Sims, Michael Sitterud and Robert Chenault. Attorneys for both sides are on call during deliberations to appear on 10 minutes notice in the event jurors have any questions. 

Day 2 - Monday, May 20 - Jurors ask to see Constitution -- FBI and OPD say no

As the second day of jury deliberations began on , jurors requested copies of the First and Fourth Amendments to the U.S. Constitution, which the defendants are accused of violating by false arrest, unlawful search and conspiracy to interfere with free speech. Surprisingly, or perhaps not, federal and Oakland defense attorneys objected. Judge Wilken overruled the objection and read those amendments to the jury, but did not give the jury a written copy to take back to the jury room. "Their agents obviously haven’t read the Constitution, so why would they want anyone else looking at it?" said Darryl Cherney. 

Later Monday the jury sent a note saying, "We want to see the nails -- all of them." They were provided with the bags of roofing nails and framing nails found in the back of Judi Bari's station wagon and evidence bags of finishing nails recovered from the crime scene that had been taped to the bomb to increase the bodily injury it would cause. There were also finishing nails removed from Judi Bari's house that police falsely claimed matched the bomb nails. Notably lacking was any bag of finishing nails found in Judi's car which were "identical" to the bomb nails, as falsely claimed in the sworn police affidavit used to persuade a judge to sign a search warrant for Judi's and Darryl's homes. 

The jury also asked why two of the FBI defendants were not listed on their verdict forms. The judge said she could only tell them that the two were no longer defendants in this case, and that they must not speculate about why, or consider it in their deliberations.

Day 3 - Tuesday, May 21 - Jury requests a bottle of white-out

The jury requested a bottle of correction fluid. Since the jury must fill in blanks on the official verdict form, one could speculate that they want to make changes or corrections to that form, indicating that they have already decided some of the claims. Also on Tuesday the jury announced their deliberation schedule for the rest of the week, saying their hours on Wednesday will be 8:30 am to 3:30 pm, and Thursday and Friday 8:30 am to - 1:30 pm. 

Day 5 - Thursday, May 23 - Jury asks about arrest and probable cause; booby trap penal code

Thursday morning began with a court session to deal with answering a juror's question: "If we concluded that initially there was probable cause for arrest, but later after obtaining additional information there wasn't probable cause to 'maintain' the arrest and the parties should have been released but were not, is this a violation of the 4th Amendment?" Of course the answer to that question is yes, but after hearing arguments from both sides, Judge Wilken decided to tell the jurors to rely on the written instructions already given. 

Later Thursday morning a juror requested copies of two sections of the Penal Code which were cited by number on the arrest forms and other documents. One section was PC 12355, which forbids possession of a booby trap. That section was crossed out and replaced with the section forbidding transportation of an explosive device. We believe citing the booby trap section at 3PM, when Judi and Darryl were arrested, shows the police knew the bomb under Judi's driver's seat was triggered by a ball-bearing, motion-sensing device, indicating that it was intended to kill her when she was driving, and that she was the target of the bomb, not knowingly carrying a live, armed, fragmentation bomb with a motion-trigger under her own car seat. Again the judge told the jurors to rely on her written instructions and their memories and notes of testimony during the trial. 

Day 6 - Friday, May 24 - No verdict yet

The jury ended their sixth day of deliberations today at 1:30 p.m. without reaching a verdict. Jurors left the courthouse while the Judi Bari Day rally was in progress outside. They will resume deliberations Tuesday, May 28, from 8:30 a.m. to 3 p.m. That day will begin with an open court session as the court considers the FBI's motion to dismiss the suit based on the claim that some jurors may have heard Tony Serra's comments to the rally crowd outside the courthouse.

Day 7 - Tuesday, May 28 - Jury may be close to verdict.  

Today the jury asked: "If there are one or more claims that we cannot agree on, can we still submit a unanimous verdict on all other claims, or does this constitute a ‘hung’ jury? In other words, do we have to reach a unanimous decision on every claim?" Judge Wilken advised the jurors that they can return unanimous verdicts for some of the individual claims and defendants and offered to seal those determinations until they reach unanimous verdicts for the rest of the claims and defendants. The judge further indicated that they could hang on some charges, but emphasized they try to reach verdicts on as many as possible. Attorneys for plaintiffs Darryl Cherney and the estate of Judi Bari believe that this is a sign that the jury may be getting close to rendering verdicts on the many civil rights claims against the four FBI agents and three Oakland Police officers.

Tuesday morning Judge Wilken turned down a motion by FBI and Oakland Police defendants to throw out the case because of a "Fiddle Down" rally held by supporters of the Earth First!er’s lawsuit. The motion charged that attorneys for the suit, including Tony Serra and Dennis Cunningham, were speaking on the PA system at our annual permitted rally at the Federal Building plaza when jurors left the federal courthouse. Judge Wilken did order the plaintiffs legal team not to be near the courthouse or even eateries like McDonalds and Starbucks during the times the jury would be entering, leaving or breaking for lunch. Said Plaintiff Darryl Cherney, "The Judge need not worry. We wouldn’t be caught dead in a McDonalds or Starbucks."

Day 8 - Wednesday, May 29 - Jury continues complicated task

The jury deliberated today until 3 PM without asking any further questions or reaching a final verdict on the 8th day of deliberations. Yesterday they asked a question that suggested they have reached a verdict on some, perhaps most, of the claims. They will resume deliberating Thursday from 8:30 AM to 2:30PM. 

Judge Wilken told the jurors at the start that this trial might require two months of their time. This is the eighth week, and it is unlikely that the judge will require deliberations to continue beyond Friday at the latest, even if they can't reach a unanimous verdict on every one of the nine main claims against the seven remaining defendants. The jurors were told yesterday that any claims they can't reach a verdict on will have to be retried, which may have increased their motivation to decide them all. If they succeed, a verdict could be announced at any time. If not, the judge may well keep them deliberating through Friday before accepting a partial verdict.

There is reason for hope that the jury will find substantially in Judi and Darryl's favor. It is inconceivable that they would take so much time if they were simply going to let the defendants off -- they could have done that in a day or two, with only seven unanimous votes required. Finding in favor of the plaintiffs requires much more work and time, because damages would likely be awarded to each plaintiff for each claim, and then the damages must be apportioned to each of the defendants.

Click here for an analysis of the Jury's complex task, requiring up to 167 separate unanimous decisions to decide all claims in favor of Judi and Darryl and award them damages. (Analysis revised 5/31/02)

Day 9 - Thursday, May 30 - Darryl Cherney Calls for Courthouse Vigil

Friends,

It is impossible to know when the verdict in Bari v. FBI will come in, but we expect it to be soon. One suggestion for packing the courtroom at verdict time is to maintain a vigil between 8:45 am and 2:15 pm today and Friday. We can resume the same vigil Monday if we don't have a verdict, but it seems that the jury is really, really close. Our lawyers tell us the two weeks we've been waiting is one of the longest deliberations they've ever experienced.

So come down to our law office and media center at 1611 Telegraph Avenue, Room 205, Oakland CA, to join us in the waiting, or over to the courthouse at 13th and Clay where the reporters are gathered. Please stay away from the entrance of the Federal Courthouse. The legal team is banned by court order from remaining near the courthouse while the jury enters or leaves. While the public is not banned from being at the courthouse square, we emphatically urge you not to talk, motion or communicate in any way to jury members at any time.

Hope to see you soon. 

Viva Judi! and, Peace, 

Darryl Cherney

  Day 10 - Friday, May 31 - Deliberations to continue Monday 

The jury adjourned for the weekend at 12:20 pm today, quitting early because one of the jurors was feeling ill.  The deliberation schedule for Monday, June 3, will be from 8:30 am until 3:00 pm. It will be the jury's 11th day of deliberations.  

The jurors have given no indication of how much longer they will take, which direction they are leaning, or whether they are deadlocked on any issues. Legal team member J. Tony Serra said today 10 days was the longest jury deliberation he can recall among the estimated 800 jury trials he has taken part in over his 40-year career.

Day 11 - Monday, June 3 - Verdict may come tomorrow!

Late this afternoon the jury sent a note to the judge saying they have reached unanimous verdicts on six of the seven defendants. Judge Wilken has called the lawyers for both sides to court at 8:00 AM Tuesday morning. The issue is whether to accept a partial verdict and release the jury, or to require them to continue deliberating in an effort to avoid a hung jury on one defendant. Stay tuned for exciting developments!

Day 12 - Tuesday, June 4 - False Alarm! - No verdict today

There was no verdict today despite a false alarm last night due to a misunderstanding about the jury's message to the judge. Late Monday afternoon a juror sent written questions to the judge which the court clerk read to the legal team over the phone. It was misinterpreted as an indication that the jury had decided on six of the seven defendants. 

But when the lawyers came to court this morning and saw the question in writing, it was clear that the question was about a hypothetical scenario, not the actual situation in this case. 

The jury asked: Would a whole claim have to be retried if we are unanimous on 6 of the 7 defendants, but couldn't agree on the remaining one? The answer is no, only the claims which are undecided could potentially be retried.

The jury also asked if the defendants they find "not guilty" would be free from another trial if they can't reach unanimous verdicts on all defendants. The answer is  yes. Only the defendants they can't agree on would be subject to potential retrial. The judge corrected the question's language, saying because this is a civil case, not criminal, the jury is asked to decide liability, not guilt. 

Judge Wilken told the jury not to concern themselves over issues like whether retrial would be required, but just to deliberate and try to reach a verdict based on their instructions and the evidence as to whether defendants are liable or not on each of the claims in the case.

She also told the jury that if they indicate they will return a split verdict, the court will provide a revised verdict form that has a check box for "undecided" in addition to "yes" and "no" as to whether plaintiffs' rights were violated on each claim and each defendant.

Lead attorney Dennis Cunningham said just when it appeared that the jury was sending signs that they were close to being finished, now it doesn't look that way. "It's really a lot of speculation at this point. Every time you think you've got a trend they give you something that takes you back the other way. But seeing them when they come into the courtroom, they don't seem uptight, and there's no indication of factionalism. The jurors seem perfectly relaxed, and they're working their way through this." He said there's no choice but to be patient and wait for them to finish their job.

Day 13 - Wednesday, June 5 - No Verdict after 13 days

The jury finished their 13th day of deliberations at 2 PM today without sending the judge any further notes. Yesterday they announced their schedule for the rest of this week would be from 8:30 AM to 2:00 PM. We consider the lengthy deliberations a good sign because it is far more complicated and time consuming for them to find in favor of Judi and Darryl than to let the defendants off.  

Day 14 - Thursday, June 6 - No Verdict after 14 days

The jury finished their 14th day of deliberations at 2 PM today without sending any clues as to where they're at. 

  Day 15 - Friday, June 7 - Jury Requests New Split Verdict Form

At about 11 AM today the jury requested the new split verdict form that was offered to them last Tuesday. The lawyers were in court arguing for other changes in the revised form, and it was not given to the jury until just minutes before their 2 PM quitting time. 

The jury announced their schedule for next week, 8:30 AM to 2 PM daily, then left for the weekend. They have deliberated 15 days, and will begin their fourth week of deliberations on Monday. 

The revised verdict form adds a third choice, "undecided," to the "yes" and "no" choices on the original form. A unanimous vote of the 8-woman, 2-man jury is required for a yes or no vote. For each of the seven defendants, the jurors are asked to make separate decisions on the claims of 4th Amendment violations of false arrest and unlawful search (two searches for Judi Bari; one for Darryl Cherney), 1st Amendment violation, and conspiracy to violate the 1st Amendment. They must decide each claim separately for each of the two plaintiffs. Further complexity is added by the judge's requirement that the jury apportion damages to each of the defendants, that is, assign them a percentage share of the total damages for each claim for which they are found liable.

Day 16 - Monday, June 10 -- Verdict Turned In Today --To Be Revealed Tuesday!

The jury turned in a partial verdict today in the Judi Bari and Darryl Cherney federal civil rights lawsuit against four FBI agents and three Oakland Police officers.  Judge Claudia Wilken placed the verdict under seal, and said she will not reveal it until tomorrow, Tuesday, June 11. 

The jury's note to the judge said that they had reached unanimous verdicts on many, but not all, of the claims in the suit. Judge Wilken told jurors not to discuss their verdict with anyone, and to come back Tuesday morning. 

After the jury had left the courtroom, the judge said she will ask the jurors tomorrow if they feel it would be productive to continue deliberating to try to reach verdicts on the remaining claims. She said, however, even if they say no, she will tell them to continue for the rest of the day, and if there is no change by then she will accept the verdict and release the jury. 

The jury's previously announced schedule for the day is from 8:30 AM to 2:00 PM, so we are confident that the verdict will be revealed Tuesday at some time during that period. 

Not all of the public and media who want to attend court will fit in the limited seating available, so be sure to come early if you want to get in.  Remember to bring photo ID to get into the courthouse, and a press pass if you are a reporter. A media conference will take place outside the courthouse afterwards.

The location is Courtroom 2, 4th Floor, Federal Courthouse, 13th and Clay Sts., Oakland, California.  

 

To be placed on the U.S. Mail list for updates on Judi Bari's lawsuit against the FBI, or to make a tax deductible contribution to help fund the lawsuit, please contact:

REDWOOD SUMMER JUSTICE PROJECT
P.O. Box 14720, Santa Rosa, CA 95402
Phone (707) 887-0262 or FAX (707) 887-0865
Email RJF at judibari.org