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FBI and Police Appeal $4.4 million Earth First! Verdict 

JOSH RICHMAN / Oakland Tribune 8sep02

OAKLAND, CA -- Attorneys for current and former Oakland police officers and FBI agents filed papers Friday asking a federal judge to set aside or reduce a $4.4 million jury award for two Earth First activists who had sued over violation of their civil rights. The Oakland City Attorney's office filed papers claiming Oakland police defendants Clyde Sims, Michael Sitterud and Robert Chenault are entitled to a new trial because this one was tainted by improperly admitted evidence and testimony, as well as by misconduct by the attorneys for plaintiffs Darryl Cherney and the late Judi Bari.

The papers also raise a host of technical and legal challenges to the verdicts and awards, including lack of sufficient evidence; the defendants' immunity from suit; and internal inconsistencies in the jury's decisions.

In papers filed earlier Friday, the U.S. Justice Department made similar arguments on behalf of FBI defendants John Reikes, Frank Doyle and Philip Sena. The federal motion also included a partial transcript of an interview with a jury member who said she was influenced by things she overheard from the activists' supporters outside court.

Bari and Cherney's attorneys are scheduled to file their response Sept. 27, and the defendants will file a final reply Oct. 11, before U.S. District Judge Claudia Wilken of Oakland holds a Nov. 1 hearing on the motions.

Bari and Cherney were hurt when a pipe bomb shattered Bari's car May 24, 1990, in Oakland, where they had come to plan a "Redwood Summer" protesting timber companies' clear-cutting of Northern California's old-growth forests.

Oakland police arrested them hours after the blast, telling the press they were eco-terrorists who had knowingly possessed the bomb for their own nefarious plans.

But prosecutors two months later declined to charge them, citing insufficient evidence; nobody else was ever arrested.

The activists sued in 1991, claiming the Oakland police and FBI violated their Fourth and First Amendment rights by falsely arresting them and illegally searching their homes in a frame-up to discredit and disrupt their political work.

After a six-week trial and 17 days of deliberations, a jury on June 11 held six of the seven defendants liable for $4.4 million in compensatory and punitive damages. Only FBI Special Agent Stockton Buck was found not liable for any violation. Of the total amount, the Oakland defendants are liable for$2,001,000, of which $1,351,000 is compensatory -- a tab city taxpayers would have to pay -- and $650,000 is punitive.

Both the city's and the federal government's motions filed Friday claim the award amounts are inappropriate for several reasons: They are more than is allowed by precedents in similar cases; they are so excessive that they violate the defendants' due process rights; and they are unsupported by evidence.

Judge offers way out of new Earth First trial 

JOSH RICHMAN / Oakland Tribune 29jun02

A federal judge on Friday suggested a way to avoid a whole new trial for Earth First activists' lawsuit against Oakland Police officers and FBI agents, but it's not yet clear whether the law will allow it. Jurors who awarded the money to Darryl Cherney and the late Judi Bari's estate couldn't decide one of the activists' claims: whether officers and agents violated Cherney's Fourth Amendment rights by arresting him a few hours after the 1990 bomb explosion that hurt the duo.

U.S. District Judge Claudia Wilken so far has delayed entering the partial verdict -- thus delaying the start of a timetable for filing post-trial motions and appeals -- until the undecided claim is dealt with.

This undecided claim could require a new trial with a new jury, something the lawyers said Friday would take two to three weeks to conduct. Wilken said the earliest she could fit such a trial into her schedule would be September 2003.

So Wilken proposed an alternative, suggesting Cherney agree to let the undecided claim be dismissed without prejudice so she can enter the partial verdict, hear post-trial motions and then send the case up to the 9th U.S. Circuit Court of Appeals.

If the appeals court upholds the partial verdict as is, she said, Cherney's undecided claim would then be dismissed permanently. If the appeals court overturns part or all of the case, Cherney would be able to revive his undecided claim for retrial along with whatever issues the appeals court sends back.

Cherney's lawyers agreed, but U.S. Justice Department attorney R. Joseph Sher, representing the FBI defendants, said he believes 9th Circuit legal precedents might preclude such a the plan.

Robert Bloom, one of Cherney's lawyers, said he'll file a brief Monday explaining why the plan is permitted. Sher and Oakland Deputy City Attorney Maria Bee, representing the Oakland defendants, will have two weeks to respond to that, if they wish, and Cherney's lawyers can file a final reply July 22, before Wilken's decision.

Wilken is also considering whether to lift or amend a post-trial gag order she placed on jurors forbidding them from discussing the case with the press or parties to the lawsuit.

The Oakland Tribune and the San Francisco Chronicle filed a motion arguing the gag order should be lifted, and Wilken said Friday she would consider amending the order so that jurors would be free to speak about some aspects of the case and their deliberations.

She said when she decides, she'll notify jurors first and then the media and other parties.

Bari -- who died of cancer in 1997 -- and Cherney were hurt when a pipe bomb shattered Bari's car May 24, 1990, in Oakland, where they had come to plan a "Redwood Summer" protesting the timber industry's clear-cutting of Northern California's old-growth forests. Oakland Police arrested them hours after the blast, accusing them of being eco-terrorists who had knowingly possessed the bomb for their own nefarious plans. But prosecutors two months later declined to charge them, citing insufficient evidence; nobody else was ever arrested.

The activists sued the FBI and Oakland Police in 1991, claiming agents and officers conspired to violate their Fourth and First Amendment rights by falsely arresting them and illegally searching their homes in a frame-up to discredit and disrupt their political work.

The jury this month found three current or former Oakland Police officers and three current or former FBI agents violated the activists' rights and awarded the activists $4.4 million.

Cherney said he and his lawyers will approach Oakland Mayor Jerry Brown, Oakland City Council and perhaps even members of the U.S. House and Senate judiciary committees, urging them to drop their appeals of the verdict, apologize, pay the awards and end this 12-year battle.

Loose ends need to be tied up in 
Earth First! case Hearing next week could grant new trial 

JOSH RICHMAN / Oakland Tribune 20jun02

OAKLAND -- A $4.4 million verdict awarded last week to two Earth First activists whose rights were violated by Oakland Police and FBI agents did not end the case, and a hearing will be held next week to determine whether a whole new trial will be necessary. Jurors who awarded the money to Darryl Cherney and the late Judi Bari's estate couldn't decide one of the activists' claims: whether officers and agents violated Cherney's Fourth Amendment rights by arresting him a few hours after the 1990 bomb explosion that injured the duo.

That final claim must be addressed before the rest of the verdict is formally entered, U.S. Judge Claudia Wilken has indicated. Until the complete verdict is entered, neither side can file an appeal and the plaintiffs can't request that the defendants pay their legal costs.

So the parties must return to Wilken's courtroom June 28 to discuss the matter. There are several scenarios:

They could set a date for an entirely new trial with a new jury for the undecided claim.

Cherney could drop the undecided claim.

They could settle the undecided claim out of court.

The parties could agree to delay any action on the undecided claim until appeals of the other claims have run their course.

Wilken could issue a directed verdict dismissing the undecided claim.

Of those options, a new trial might be most likely.

'Too soon to tell'

Cherney said Wednesday that he won't drop the undecided claim, and Oakland Assistant City Attorney William Simmons -- speaking for the Oakland Police defendants -- said it won't be settled. Simmons also said postponing the undecided claim until after the appeals wouldn't be in anyone's best interests, while Cherney would say only that "it's too soon to tell."

Wilken's refusal to enter the partial verdict thus far and her scheduling of the June 28 hearing indicate she doesn't want to postpone the issue and send a partial verdict to the 9th U.S. Circuit Court of Appeals.

Bari -- who died of cancer in 1997 -- and Cherney were hurt when a pipe bomb shattered Bari's car May 24, 1990, in Oakland, where they had come to plan a "Redwood Summer" protesting the timber industry's clear-cutting of Northern California's old-growth forests.

Oakland Police arrested them hours after the blast, accusing them of being eco-terrorists who had knowingly possessed the bomb for their own nefarious plans. But prosecutors two months later declined to charge them, citing insufficient evidence; nobody else was ever arrested.

The activists sued the FBI and Oakland Police in 1991, claiming agents and officers conspired to violate their Fourth and First Amendment rights by falsely arresting them and illegally searching their homes in a frame-up to discredit and disrupt their political work.

The jury last week found three current or former Oakland Police officers and three current or former FBI agents violated the activists' rights and awarded the activists $4.4 million.

Rights violation?

Yet the jury hung on the specific issue of whether Cherney's arrest violated his rights. Jurors found only that if Oakland Police Sgt. Robert Chenault did violate Cherney's rights in that way, he did what any reasonable officer would have done under the circumstances and so can't be held liable.

Others accused in that claim are former Oakland Police Lt. Mike Sims, now a Tracy Police captain; former Oakland Police Sgt. Michael Sitterud, now retired; former FBI special agents Frank Doyle and Phil Sena, both now retired; and FBI Special Agent John Reikes.

U.S. Justice Department attorney R. Joseph Sher, the FBI defendants' lawyer, couldn't be reached for comment Wednesday.

Also next Friday, Wilken will consider ANG Newspapers' motion that she lift a gag order she imposed on the case's jurors, preventing them from speaking about their 17 days of deliberations.

******************

Tribune seeks lifting of gag order on jurors in Earth First! civil trial 

STAFF REPORTS / Oakland Tribune 18jun02

The Oakland Tribune and the San Francisco Chronicle have asked a federal judge to lift the gag order she imposed on jurors who last week awarded $4.4 million to a pair of Earth First activists who had sued Oakland Police officers and FBI agents.

The First Amendment guarantees the public access to civil trials and that right extends to post-trial conversations with jurors regarding their deliberations, the newspapers claim in court papers filed Monday. U.S. District Judge Claudia Wilken of Oakland imposed the order without prior notice to the public and without the formal factual findings required for such a move, the newspapers claim.

The newspapers' motion asks Wilken to lift the gag order immediately, or at least hold a hearing on the matter Friday.

A federal jury of eight women and two men awarded the money to Earth First activists Darryl Cherney and the late Judi Bari last Tuesday after finding six officers and agents tried to frame them for a 1990 bomb blast in which they were hurt. The verdict followed an 11-year legal battle, a six-week trial and 17 days of deliberations. Lawyers for the defendants say they intend to appeal, and Wilken had ordered the jury to remain silent until those appeals are complete -- a process that could take years.

Earth First! win in court spurs other activists 

JOSH RICHMAN / Oakland Tribune 16jun02

Last Tuesday's $4.4 million verdict against Oakland Police officers and FBI agents whom jurors said violated two activists' civil rights has left other activists feeling emboldened, while an expert says the effect on law enforcement will be brief and mild. A federal jury awarded the money to Earth First activists Darryl Cherney and the late Judi Bari after finding six officers and agents tried to frame them for a 1990 bomb blast in which they were hurt. Lawyers for the defendants intend to appeal.

The verdict -- after an 11-year legal battle, a six-week trial and 17 days of deliberations -- surprised many who thought the activists might fail to prove their case so long after the incident, and while the nation's post-Sept. 11 patriotism is giving rise to expanded FBI powers.

Medea Benjamin, co-founder of the San Francisco-based labor and human rights group Global Exchange, called the verdict "a real boost at a dark moment in history when groups that challenge government policies have been feeling crushed by the weight of those new powers."

"This gives us a lot of hope we can not only stand up for our basic rights but also win when they're violated," she said, citing recently reported details of the FBI's 1960s-era intelligence operations against University of California, Berkeley political dissidents.

"We've been getting calls from people who were harmed (by the FBI) during the'60s who have been saying, 'Can I get Darryl Cherney's lawyers' names?'" Benjamin said. "The fact that the FBI can be successfully challenged just gives us a lot of hope."

Cherney said Tuesday he hoped the verdict would give solace and momentum to others taking on the FBI. He cited the case of Leonard Peltier, a American Indian activist serving a life sentence for the 1975 slaying of two FBI agents; Peltier's supporters claim he was wrongly convicted and is a political prisoner.

Peltier's attorney

Bruce Ellison, one of Peltier's attorneys, called the Earth First verdict "wonderful, because people were able to hear something that went against all they were taught as kids about what our country is about."

A finding of law enforcement malfeasance is more important than the money attached to it, he said. "It's a public examination of why we really do need to look at what's going on. I hope there will be a lot more verdicts like that. I hope people will come forward and sue."

Sierra Club Executive Director Carl Pope noted the defendants' actions in 1990 mean the true bomber may never be caught, and he hopes the verdict will discourage the FBI and other law enforcement agencies from letting political biases affect investigations.

But Professor Benjamin Carmichael, chairman of the Criminal Justice Administration Department at California State University, Hayward, warned against expecting any big changes in law enforcement methods because of this verdict.

"I don't know of any event that easily changes the momentum of law enforcement in this country," he said. "Although a temporary setback in terms of aggressiveness in law enforcement might occur as administrators and staff respond to public perception ... the engines of law enforcement pretty much run consistently along an unswerving path."

Rank-and-file officers

Administrators and rank-and-file officers will be concerned about their image being besmirched and about any loss of public confidence which might result, he said. But it's unlikely the FBI or Oakland Police will change any specific policies or procedures -- especially as the case is appealed.

While this trial unfolded, news media carried daily stories probing the FBI's investigative methods in the months leading up to the Sept. 11 terrorist attacks. U.S. District Judge Claudia Wilken forbade jurors from discussing the case while it's appealed, but Emeryville-based jury consultant Howard Varinsky -- who has helped pick panels in high-profile cases from Timothy McVeigh to Jack Kevorkian -- said those news reports probably didn't bias this jury.

"What you're getting in the news now is basically inept Keystone Kops," he said. "If this case was a negligence case, then I think there could have been spillover ... but this isn't bumbling, this is intentional misconduct. Juries are good at separating that and looking at the issues."

Massive media penetration

The UC-Berkeley story Benjamin cited might've swayed jurors who saw it, Varinsky said, "but it was only one story, one day, it wasn't massive media penetration over and over and over again."

He said the verdict amazed him because the case is so old -- memories and outrage could've been muted by time -- and also because Bay Area federal juries tend to be somewhat conservative by local standards, with members drawn from a larger area including less liberal regions.

But the public usually underestimates how conscientious jurors are "about looking at and debating the facts," Varinsky said. "Rogue verdicts are very few and far between -- the OJ verdict is the last big one I can think of.

"My guess is there are facts in this case that really tipped the scales for these jurors."

KEY DATES IN THE EARTH FIRST! FEDERAL CIVIL LAWSUIT

Bombshell verdict: Earth First! activists win $4.4 million from police, FBI 

JOSH RICHMAN / Oakland Tribune 12jun02

darryl cherney

Lead attorney Dennis Cunningham gets a hug from his client, Earth First activist Darryl Cherney (center), after a jury awards Cherney and the late Judi Bari $4.4 million, finding Oakland Police and FBI agents violated their rights. (Nick Lammers - Staff)

OAKLAND - A federal jury awarded two Earth First activists $4.4 million in damages Tuesday after finding Oakland Police officers and FBI agents wrongly blamed them for a 1990 bombing in order to silence their environmental and political speech.

The verdict, which seemed to stun plaintiffs and defendants alike, is the result of an 11-year legal battle which has been a progressive political cause celebre and - since Sept. 11 - a rallying point for activists angered by governmental intrusion upon civil liberty in the name of security.

No money will change hands anytime soon because a flurry of appeals is expected, but plaintiffs proclaimed victory Tuesday. ``It's really beyond our wildest dreams - the jury got it,'' said Darlene Comingore, executor of the estate of activist and plaintiff Judi Bari, who died of cancer in 1997.

Bari and Cherney were hurt when a pipe bomb shattered Bari's car May 24, 1990 in Oakland, where they had come to plan a ``Redwood Summer'' protesting timber companies' clear-cutting of Northern California's old-growth forests. Oakland Police arrested them hours after the blast, telling the press they were eco-terrorists who had knowingly possessed the bomb for their own nefarious plans. But prosecutors two months later declined to charge them, citing insufficient evidence; nobody else was ever arrested.

The activists sued in 1991, claiming the Oakland Police and FBI violated their Fourth and First Amendment rights by falsely arresting them and illegally searching their homes in a frame-up to discredit and disrupt their political work.

Activist and plaintiff Darryl Cherney, emerging from the courthouse to his supporters' cheers, praised his lawyers for fighting on despite being barred from telling jurors about other, unrelated acts of FBI misconduct against political activists.

FBI out of control ``We argued this case with our hands tied and the jury blindfolded, and we still won,'' he said, calling the FBI ``an agency that's out of control'' which should be disbanded and rebuilt from the ground up. ``We need to start a trend that suing the FBI is something more American citizens get involved in.''

Cherney admitted he said ``unpopular things'' at trial - perhaps alluding to his witness-stand rendition of his protest song, ``Spike A Tree For Jesus'' - so jurors might not have liked him very much. Still, he noted, they realized ``even people with unpopular opinions are entitled to their constitutional rights.''

Plaintiffs' co-counsel J. Tony Serra said jurors ``transcended'' the nation's post-Sept. 11 patriotic furor to see this as ``a case of FBI falsity, a case of FBI perjury, a case of FBI cover-up that cannot be tolerated.'' Lead plaintiffs' attorney Dennis Cunningham said that's especially germane now, as the FBI shifts its focus from crime investigation to terrorism prevention.

``It's not about fighting terrorism, it's about suppressing dissent,'' he warned.

U.S. Justice Department attorney R. Joseph Sher, who represented the four FBI defendants, wouldn't comment on the verdict Tuesday: ``I don't know what it means yet - I've got to sit down and understand it.''

Oakland Assistant City Attorney William Simmons later Tuesday said the city will file post-trial motions and an appeal: ``We've felt all along and still feel the evidence shows the officers had probable cause to make arrests and probable cause to seek and obtain search warrants.''

U.S. District Judge Claudia Wilken forbade jurors from talking to the press pending the case's appeals, so there's no telling what happened during 17 days of deliberations.

It took more than a decade of pre-trial maneuvering - with two trips to an appeals court and eight amended versions of the lawsuit - to bring the case to trial. The Oakland Police and FBI as institutions, as well as several individuals, were dismissed from the case along the way, leaving three current or former officers and six current or former FBI agents as defendants. After all evidence was in, Wilken dismissed agents John Conway and Walter Hemje, ruling there wasn't enough evidence against them.

Wilken limited the trial to six weeks lest it get out of control. At trial, some defendants appeared to point fingers at each other; for example, testimony conflicted over who was responsible for a search warrant affidavit's claim that the bomb must have been on the car's back seat floorboards in the activists' plain sight, indicating their guilt. An FBI lab technician later concluded it was more likely beneath Bari's seat, bolstering the activists' claim it had been hidden there by someone else to kill her.

Another conflict concerned why the affidavit claimed nails from the bomb were identical to nails found in a bag elsewhere in the car; the nails, shown to the jury at trial, clearly were different.

Oakland Deputy City Attorney Maria Bee basically tried to show the Oakland officers followed marching orders from the more experienced FBI, while Sher basically tried to show the agents were background advisers only. Both argued their clients neither intentionally violated anyone's rights nor held any bias against the activists and their cause.

Civil rights violated Yet the jury concluded the defendants were to blame for just those things. Only one defendant - FBI Special Agent Stockton Buck - was found not liable for any violation.

FBI defendants John Reikes, Frank Doyle and Philip Sena and Oakland defendants Clyde M. Sims, Michael Sitterud and Robert Chenault were found liable to varying degrees. Sims and Reikes - Oakland Police and FBI supervisors, respectively - seemed to take the brunt of jurors' wrath: $3.15 million in liability between them, mostly for violating the activists' free speech rights.

The FBI defendants are individually responsible for paying damages. Simmons said the City of Oakland ``would be obligated to pay compensatory damages'' demanded from the Oakland officers, but ``payment of punitive damages by the city would be a matter the city council would consider and decide.''

The Oakland defendants are liable for $2,001,000, of which $1,351,000 is compensatory and $650,000 is punitive.

Chenault - the only defendant in court for Tuesday's verdict, and found least liable of the Oakland defendants - said he's ``certainly disappointed. I'd never heard of Earth First before this incident.

He said he knew at the bombing scene he would need to rely on federal agents' expertise for this investigation. ``We were just trying to find out the truth and that's what I did. It was not only a fair and thorough investigation, but never else in my homicide experience did I have a member of the DA's staff there assisting in the preparation of a search warrant.''

Sitterud, now retired and living in Utah, said he's ``terribly disappointed - having this at the end of my career, I'm just devastated. We had no bias toward Earth First. I'd classify myself as some sort of a tree-hugger. I belong to a number of conservation groups out here and I support them.''

He said investigators from the start feared activists would make the case ``a grasp for the media's attention,'' so they were sure to cover the bases by having their work reviewed by prosecutors before seeking warrants.

Both sides probably will appeal to the 9th U.S. Circuit Court of Appeals - the defendants for obvious reasons, and the plaintiffs to protest the pre-trial dismissals of several more defendants they had hoped to sue.

COINTELPRO ties asserted

Foremost among targets the plaintiffs want reinstated for a new trial is Richard Held, who was special agent in charge of the FBI's San Francisco office in May 1990. The plaintiffs long have claimed Held, with ties to the FBI's COINTELPRO counterintelligence efforts against domestic political dissident groups, masterminded the effort to smear Bari and Cherney. He was dismissed from the case in 1997.

The jury was undecided on whether Doyle, Reikes, Sena, Sims, Chenault and Sitterud violated Cherney's rights by arresting him, but said if Chenault did so, a reasonable officer in his position could've believed he was acting lawfully, so he's not liable. The plaintiffs could choose to seek a new trial on these undecided matters.

Alicia Littletree, an Earth First activist and Bari's protege, called her former mentor's daughter, Lisa Bari, after soon after Tuesday's verdict.

``She's stunned, she's laughing, she's crying,'' Littletree said of the younger Bari, now living in Germany. ``She said, `Don't go totaling (the damages) up - we'll probably never see any of it.' Same old Bari practicality.''

If they do receive money, Cherney said, Bari's will specified that half of hers must go to the Redwood Justice Fund, which bankrolls women's rights and environmental causes in Northern California.

``And I plan on continuing using any funds I raise for the protection of the environment,'' Cherney said. ``The only thing I'd like to buy in this world is peace.''

Staff writers Harry Harris and Jill Tucker contributed to this report. MDNM

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