Court Hears Oakland Appeal in Bari/Cherney Caseby Alicia Littletree
Dozens of supporters of Judi Bari and Darryl Cherney's civil rights lawsuit against the FBI and Oakland Police packed into the gilded courtroom of the U.S. 9th Circuit Court of Appeals in San Francisco on April 15th. They came to witness oral arguments in the latest round of pretrial wrangling in the eight-year effort to bring the FBI and OPD to trial for trying to frame the Earth First! activists after unknown assassins planted a motion-triggered pipe bomb beneath Bari's car seat.
Meritless Appeal Delays TrialThis time, the issue was a meritless appeal by the Oakland Police, filed way back in December, 1997. The average appeal takes from six to eighteen months to get to a hearing. Add to that the fact that Oakland's lawyer was allowed to postpone the original February date for the hearing so she could travel to Europe to play golf, and the wheels of justice for Judi Bari ground to a halt for almost a year and a half; all for an appeal so frivolous that the only assumption one can make is that it was filed only to delay trial in this case.
The issue before the three-judge appeals court panel goes back to an October 1997 ruling by U.S. District court judge Claudia Wilken. In an effort to end the defendants' recurring claims that they had immunity from being sued, lawyers for Judi and Darryl filed a motion just before Judi's death in March of 1997 asking the court to rule once and for all that the FBI and Oakland Police are not protected by "qualified immunity." The motion brought together all of the evidence collected so far in the case, showing that the FBI and OPD had deliberately lied when they wrongly arrested Judi and Darryl within hours of the bomb blast
Wilken's decision was mixed. She ruled that the individual agents and officers involved in the false arrests and illegal searches indeed did not have immunity. But she let FBI higher-ups, specifically notorious COINTELPRO agent Richard W. Held, out of the case. She also ruled, unbelievably, that the Oakland Police had not been part of the larger conspiracy to violate the activists' civil rights.
The appeal of Wilken's ruling by the Oakland Police began a whole new round of delays. The FBI promptly refused to move forward with any of their issues while Oakland's appeal was pending, forcing Bari and Cherney's lawyers to argue before a magistrate judge to make them turn over documents and testimony. All of this continued while we waited for an appeal hearing date for over a year.
The basis of Oakland's appeal was their contention that Oakland officers had the right to rely on what they were told by the FBI, regardless of if the FBI lied. As the appeal hearing began, attorney Karen Rodrigue spoke for the Oakland Police, looking just a little embarrassed to be making such a lame argument. The testimony shows that the FBI told OPD officers at the scene that the bomb was on the back seat floorboard, when it was obviously hidden beneath the driver's seat. The FBI came up with the lie that nails taped to the bomb were "identical" to nails in bags in the back of Judi's car. And the FBI was responsible for concocting the false information that Judi and Darryl were the type of people who would carry bombs. According to the OPD, they had no obligation to question the FBI when they arrested Judi and Darryl for transporting explosives.
Of particular interest to the panel of judges was a search warrant affidavit written by OPD Sgt. Chenault on May 24, 1990. This affidavit is a stunning piece of work. FBI and OPD testimony shows that the two agencies wrote it together, collaborating to mislead the judge that they actually had evidence that Judi and Darryl were dangerous and known terrorists who had blown themselves up with their own bomb. The affidavit refers to statements by Seeds of Peace activists Shannon Marr and Dave Kemnitzer about Earth First!'s reputation for violence, statements which both Marr and Kemnitzer testified they never made.
Rodrigue told the court that the activists' statements had no impact on the department's decision to arrest Bari and Cherney. Judge Stephen Reinhardt replied that "The department seemed to have no interest in investigating anybody except the people who were blown up." The crowd of spectators tried to stifle the instinct to clap and howl.
Cunningham Makes Case Against ImmunityThen Dennis Cunningham, attorney for Darryl Cherney and the estate of Judi Bari, took the podium. He explained that the Oakland defendants do not have the right to believe what the FBI tells them when it contradicts what they see with their own eyes. The Oakland Police were at the scene of the bombing. When the FBI said the bomb was in the back seat, the OPD could look at the hole that went right through the driver's seat and they could see the back seat was intact. The Oakland Police could look at the nails and see for themselves that they weren't even similar. They don't have the right to be willing dupes in the service of the FBI.
Then Cunningham went even further; he made a counter-appeal to the court about Judge Wilken's decision to release the OPD from the conspiracy. He told the court that the OPD must have been involved in the conspiracy in order to ignore the real physical evidence before their eyes and arrest Judi and Darryl. He requested that the higher court intervene to stop the continuing delay of this case, saying "I want you to take the bull by the horns and push!" The judges seemed interested in entertaining the counter appeal if they determined they had the jurisdiction.
There is no real doubt the court will rule in our favor and deny Oakland's immunity appeal because it clearly has no merit. But they may well go even further, and order the judge to reconsider her ruling on Oakland's part in the conspiracy-- a move that could save months of future litigation. We expect the court will issue their written ruling in two to six months.
The Suit Moves ForwardIn the meantime, the FBI has been ordered to turn over more evidence, and there is a whole new round of depositions scheduled for this spring. The legal team will be questioning ex-MAXXAM Corporation board member Stanley Rosenberg about a conversation he had with then FBI director William Sessions in June of 1990 regarding the "militancy of Earth First!." They are also set to question an FBI secretary about the renumbering of the FBI files on the bombing investigation. On almost the entire file, the old file serial number has been crossed out and a new, lower number written in, raising the suspicion that the FBI is hiding pages which might reveal their own wrongdoing.
So the legal team continues to push on toward trial past the interminable roadblocks set up by the FBI and Oakland Police. In their effort they have political support from the Redwood Summer Justice Project, and the financial support of community members who keep the effort moving forward with their contributions.
Viva Judi Bari! Earth First!
— Alicia Littletree