(Note: This update assumes that you already know the basics of the May 24, 1990 car-bombing of Earth First! activists Judi Bari and Darryl Cherney, of the resulting lawsuit against the FBI, and of the FBI's COINTELPRO program. If you don't, please write or call us for a copy of the brochure, "Who Bombed Judi Bari?")
The first hearing in Bari vs. the United States of America since Judi Bari's devastating death from breast cancer on March 2, 1997, took place Friday, August 1st, at the Oakland Federal Building before Judge Claudia Wilken. That morning, the courtroom was packed with supporters from the Bay Area and up north, who waited expectantly to hear oral arguments pertaining to the motion filed March 18 by Judi's lead attorney, Dennis Cunningham. The motion itself is a compilation of all the key evidence turned up since Judi and Darryl filed the lawsuit back against the FBI and Oakland Police Department for their mishandling of the 1990 car bombing that almost killed Judi and injured Darryl. Dennis asks the judge to rule once and for all that the FBI and OPD do not have immunity from prosecution in this case, contrary to their claims that their actions back in 1990 were reasonable and therefore they cannot be sued. The goal is to cut through endless FBI stalling and take this historic case, now entering its seventh year, to trial.
Less than a week before the hearing, the judge read the FBI's brief responding to our motion, only to discover that they were continuing their duplicitous stalling tactics and had only answered one of the four charges made by the plaintiffs, that of illegal search and seizure. Not wanting to put off oral arguments, Judge Claudia ordered the FBI to submit a complete response, but left the date of the hearing the same. We entered the courtroom not really knowing what to expect.
As the hearing began, Dennis pointed out that the fourth amendment claims of illegal search and seizure are inseparable from our other claims in the case, and cannot be isolated by the FBI from the claims of false arrest, unequal protection of the law, and conspiracy to violate Judi and Darryl's first amendment rights. "I don't know what we can really talk about here today, Judge," Dennis said. But, given the volume of information with which she'd been presented, the Judge had some questions of her own.
Back on May 24, 1990, the FBI and OPD arrived just minutes after a motion-triggered pipe bomb exploded beneath Judi Bari as she drove through Oakland with passenger Darryl Cherney. According to the police's deposition testimony, the FBI quickly took control of the scene, muscling its way into a leading position in the on-site investigation. It was the FBI who fabricated the lie that the bomb was on the back seat floorboard, therefore Judi and Darryl could see it and knew they were carrying it. They also concocted the story that nails found in Judi's car were identical with nails that had been taped to the bomb for "shrapnel effect." Yet, even though bombing cases are within the jurisdiction of the FBI, it was the Oakland Police who made the false arrest.
"So what did Oakland do wrong?" inquired Judge Wilken, before an astonished audience. She pointed out that the OPD has every right to believe the FBI, and it's not the fault of the police if the FBI turns out to be lying. Accountability falls somewhere in between the two agencies. Anyone familiar with the FBI's notorious COINTELPRO, counterintelligence program, knows they have a long history of using local police to do the "dirty work" of arresting their political targets in order to dodge scrutiny for rights violations.
What the Oakland Police did wrong in Judi's case, however, was to ignore the obvious physical evidence in front of them that Judi and Darryl were the victims of the bombing, not the perpetrators. They swallowed the FBI's lies "with a big spoon" said Dennis, in defiance of what they were seeing with their own eyes. Everyone at the scene, FBI and OPD alike, would have observed the same gaping hole beneath the driver's seat, yet the OPD went along with the FBI's fabrication that the bomb had been in the back. This is also true of the nails that they would have known were not even similar when they used them as grounds for arrest.
At this point, FBI lawyer Joe Sher objected. He said a determination about the nails required an expert opinion. "You don't need an expert to tell you about something that Ray Charles could see!" exclaimed Dennis.
"I don't know much about nails," said Judge Claudia, "but I know a finishing nail is different than other nails." No honest observer who compared the finishing nails from the bomb and the roofing nails and sinkers found in bags in Judi's car could ever mistake them as "identical."
"Well, how can the plaintiffs prove that the FBI was unreasonable in their assertion as to the location of the bomb?" the Judge wanted to know. Dennis launched into one of his trademark impassioned and eloquent arguments. He cited the physical evidence, including the location of Judi's injuries, that the bomb had been hidden under and not behind Judi's seat. He pointed out that some of the responding agents at the scene were highly experienced bomb experts who would have known how to precisely place a bomb of this nature using a number of methods, and that another FBI bomb expert had testified to that fact. And he argued that the FBI had arrived at the Oakland bombing scene with a malicious predisposition towards Judi and Darryl because of prior and continuing FBI operations against Earth First! In fact, the goal of the FBI's assault against Arizona Earth First!- the Bureau's own name for it was THERMCON or "thermite conspiracy"- had been to falsely connect Earth First!ers with explosives in order to brand Earth First! a terrorist organization. What's more, when the FBI arrived just minutes after the explosion in Oakland, they told responding OPD officers that Judi and Darryl, two prominent non-violent EF! organizers, were already subjects of an investigation "in the terrorist department."
The Judge then turned toward the FBI's lawyer for a response. "The Plaintiffs are DEAD wrong," boomed Joe Sher, using a line he'd surely been rehearsing since Judi's tragic passing. He restated the FBI's claims of immunity. The FBI had made reasonable mistakes about the location of the bomb and about the nails. The law protects them from being sued for any mistakes they make in the course of their duties.
At one point, Oakland's lawyer Karen Rod-rigue joined the discussion. Picking up the Judge's cue, Rodrigue unabashedly broke ranks with the FBI and argued that Oakland had done nothing wrong when they believed the FBI's lies and therefore should be dismissed from the case.
For about 30 minutes the Judge continued to ask questions of both plaintiffs and defendants. Much of the proceedings touched on subtle legal concepts that came across as abstractions to a room full of people who were there out of a desire to know who bombed Judi Bari. This kind of lengthy back and forth is unusual for a pre-trial hearing in this case, and as the attorneys made their arguments, the audience got a hint of foreshadowing of the trial of Bari vs. USA. Even so, the August 1st hearing did not bring us any closer to that day. As of September, the FBI has finally filed a complete response to our motion, and Dennis Cunningham has filed his answer to it. There may be another hearing before the Judge issues her decision on the immunity question. Because of the enormous volume of information she's got to pore over and sort out, and due to the certainty of appeal, the decision is bound to be long and detailed. We expect her to take anywhere from 6 to 8 months to deliver her answer. If she grants our motion and decides that we made an adequate showing that the FBI and OPD knowingly and maliciously lied, the next step is to set a schedule to finish discovery and go to trial. If she rules against us, then all of our claims will be thrown out. In either event, one can certainly expect the losing side to appeal. But for now, this window gives us a few precious months to focus on saving Headwaters before we have to be back in court this spring to face down the FBI.
Copyright Mendocino Environmental Center 1997
Permission granted to excerpt or use this article if source is cited