Darryl Cherney and Judi Bari vs FBI

Lawsuit Exposes Frameup of Earth First! Activists

Revolutionary Worker #1156, June 23, 2002, posted at http://rwor.org

"This verdict is a referendum against the FBI's gross interference with people's right to dissent at a time when Attorney General Ashcroft, FBI Director Mueller and the Bush administration are arrogating huge power to themselves and the FBI to spy on legitimate groups and organizers and infringe on the Constitutional rights of the public."

Dennis Cunningham, lead attorney for plaintiffs Darryl Cherney and Judi Bari

"If I knew then what I know now, I would have said `I don't recall.'"

FBI Agent Frank Doyle, testifying as defendant in FBI vs. Earth First! lawsuit

"The good news is that all this stuff came out. The bad news is these people are running the country."

Darryl Cherney, environmental activist and plaintiff in Earth First! lawsuit

OAKLAND--On June 11, the jury in a federal civil rights lawsuit against four FBI agents and three Oakland police officers awarded the plaintiffs, Earth First! activists Darryl Cherney and the late Judi Bari, $4.4 million for violation of the activists' constitutional rights. In what the San Francisco Chronicle called "one of the biggest civil rights verdicts of its kind," the 10-person jury found unanimously that six of the seven defendants violated the First and Fourth amendments of the Constitution by arresting the activists, conducting searches of their homes, and carrying out a smear campaign in the press in the aftermath of the explosion of a bomb that was planted in Judi Bari's car.

1990 Car Bombing

The case against the police and FBI stems from May 24, 1990 when a shrapnel- wrapped car bomb went off under Judi Bari's seat, nearly killing her and injuring Darryl Cherney. Bari and Cherney were on a tour of northern California to promote Redwood Summer, an action campaign modeled after the Mississippi Freedom Summer civil rights actions of the 1960s. Redwood Summer was planned to draw thousands of young college students and environmental activists into the struggle to protect the last of the ancient redwood forests of northern California.

The terror of the day did not end with the explosion. Within minutes FBI agents were on the scene and, in defiance of all evidence, had Judi and Daryl arrested for transporting explosives, claiming that it was their bomb and that they knowingly carried it. These outrageous charges were then trumpeted in the national press with the FBI and Oakland police falsely portraying Judi and Darryl as "violent terrorists."

After eight weeks, all of the charges were dropped against Bari and Cherney. The FBI and police never conducted any real investigation of the bombing and the real bomber remains at-large. The FBI has continued to insist that Bari and Cherney are the only suspects.

The police and FBI have refused to investigate whether the bombings may have been carried out by forces opposed to Bari and Cherney's environmental activism even though Bari had recently been forced off the road by an angry logger and there had been numerous death threats against both her and Cherney.

Manufacturing a Frame-Up

The trial evidence exposed some of the methods used by the FBI, in concert with local cops, to frame political activists and smear them in the press.

Special Agent Frank Doyle, a 20-year bomb expert with the FBI Terrorist Squad, examined Bari's car at the scene. He used his "experience" to declare that the bomb had been placed in the back seat where it would have been visible to Bari and Cherney. This "fact" was then used in the arrest warrant as a key piece of evidence that the activists knowingly transported the bomb. This was also used in the press to justify the arrest of the activists.

However, the FBI's own photos of the bombed car show clearly that the bomb had been placed under the driver's seat where it would have been hidden from view. Dennis Cunningham, one of the attorneys for Judi and Darryl, argued in a court brief, "There was no way such an experienced bomb technician as Frank Doyle, ... or the other investigators -- or Ray Charles or Stevie Wonder -- would not have known that the bomb was under the seat when it blew up."

The Case of the"Matching" Nails

The bomb had sent a fusillade of nails rocketing through the car. Quite a few of those nails--thin, medium-length finishing nails--stuck in the foam rubber of Bari's seat and into her body.

Inside the car, Agent Doyle found a bag of unused nails. Those nails, he claimed, were identical to the nails in the bomb. This became an additional piece of "evidence" and was used as a legal justification for arresting Bari and Cherney and for issuing additional search warrants.

There was just one problem: the nails didn't match at all, a fact that anyone, including the jurors, who took a look at the nails could clearly see. The nails in the bag--short, fat roofing nails and thick, long framing nails, which were not unusual cargo for a person who, like Bari, made her living as a carpenter.

At the trial, Doyle denied ever claiming to have matched the nails. "I never made the statement that the nails were identical," Doyle said on the stand. "Quite the contrary, those nails were not similar, and I never said they were."

However Oakland Police Sergeant Robert Chenault, who signed the affidavit used to justify the search warrant, insists that Doyle fed him the fake evidence, essentially dictating what he should put down in his report. Clearly someone here --either the FBI or the Oakland police-- is not telling the truth.

A Bomb-Making Factory in Every Home

"They found 111 common household items which they carefully bagged and tagged and wrote in the newspapers that they had found materials in our houses that could have been used to make the bomb. Those materials included a red magic marker, duct tape, Elmer's glue, and of course many, many nails. In fact they took finishing nails out of my window trim to try and find a matching nail. All of this was done with great fanfare in the press and headlines day after day: `nails match', `bomb materials match,' `only suspects,' and those kind of things."

Judi Bari, describing the search of her home by the FBI

The trial has also revealed another method used by the FBI and police. They can label common materials someone has lying around the house "a bomb-making factory" and then use this information in the media to paint a picture of violent terrorist suspects.

During the trial one Oakland cop described what he found during the search of a house that Darryl Cherney had stayed at a couple of days before the bombing. "We found what looked like a bomb- builder's kit. There was a large metal toolbox in the dining room. It contained a soldering iron, batteries, a wall switch, tape and wire. It made me suspicious." It turned out to be a stained glass lamp hobbyist kit belonging to the teenage stepdaughter of the homeowner and it had her name on it.

When the police raided the house where Judi and Darryl stayed the day before the bombing, they discovered a "suspicious" box in Cherney's van and called for the bomb squad to remove it and blow it up again while TV camera rolled. It turned out to be a box of Cherney's music cassettes.

Political Spying Revealed

The trial has also revealed the extent to which the FBI and Oakland police are involved in political intelligence gathering on environmentalists and other progressive activists, both in Oakland and across the country.

Nationally, the FBI obtained the telephone records of a core group of Earth First! activists and compiled a list of 634 out-of-town phone calls they had made. The FBI then investigated each of these numbers, gathering information including names, addresses, physical descriptions, place of employment, criminal records and political associates, of people whose only "crime" was receiving a phone call from an Earth First!er.

"It's a standard investigative technique," FBI Agent Patrick Webb told the jury.

It was also revealed that the Oakland police were operating a secret intelligence unit that kept tabs on people who happened to be members of certain political groups. Oakland cop Kevin Griswold testified that he was one of two officers assigned to the department's intelligence unit to spy on political activists.

Earth First! was just one of the targets of Griswold's unit. He admitted to keeping files on 300 activist groups, including 20 environmental organizations. When the San Francisco Bay Guardian newspaper called the Oakland Police Department to see if the Department was still tracking activities of dissidents, the police declined to comment.

Restricting the Scope of the Case

"We argued this case with our hands tied and the jury blindfolded, and we still won."

Darryl Cherney

Before the trial began, Judge Wilken handed the FBI a major victory and narrowed the scope of the case when she barred Bari and Cherney from putting on evidence of the FBI's long history of political repression against progressive movements and activists. The plaintiffs wanted to present the case in the context of FBI crimes beginning with the Palmer raids of 1919-20 and continuing through the in- famous COINTELPRO campaigns of the 1960s and early '70s, and going on through at least the '80s with spying and use of covert tactics against the domestic opponents of U.S. Central America policy. Judge Wilken's ruling blocked testimony by noted historian Howard Zinn, who had agreed to serve as an expert witness.

Attorney Cunningham spoke of the importance of presenting the evidence of the FBI's history to the jury. "It's incumbent on us to establish a motive. Why would the FBI do this? Why would they pretend to think these people were criminals when they were victims? And the answer is, that's what they do. That's what they did to Geronimo Pratt. That's what they did to the Black Panther Party. That's what they did, going back, the whole time of their existence."

The judge also threw out charges against several top FBI agents including Richard Held, Special Agent in Charge of the San Francisco FBI office at the time of the bombing. Held has a particularly notorious career with the FBI including playing a key role in the frame-up of political activists Geronimo Pratt and Leonard Peltier and the suppression of the Puerto Rican independence movement.

The FBI has also refused to turn over 57 documents that are missing in the case as required. That these documents are missing is clearly revealed by gaps in the numbering of documents that were turned over to the plaintiffs, each one clearly numbered. The FBI claims that this is a case of accidental misnumbering. Darryl Cherney has another theory: "I think the FBI was surveilling us. I think that's what's in the missing documents."

As the jury began their deliberations they asked the judge for a copy of the First and Fourth amendments of the U.S. Constitution. (These are the part of the "Bill of Rights" that supposedly guarantee freedom of speech and protect people against unreasonable search and seizure.) The Department of Justice attorney Joseph Sher and City of Oakland attorney Marie Bee argued that the jury should not be able to hear these amendments, even though the case was based on the denial of these rights.

Taking on the Criminalization of Dissent

"What we're really looking at is the criminalization of activism."

Darryl Cherney speaking on the FBI's new powers
in the San Francisco Chronicle, May 30, 2002

The attorneys for the FBI and the police argued to the jury that a verdict against the their clients would hamper police investigations. "I'm asking if you want to live in a world where officers investigating an undisputed crime are afraid to share information with other officers," the attorney pleaded.

The 10-member jury was selected largely from the more affluent Bay Area suburbs. Only a few jurors live in Oakland. Jurors ranged in age from 29 to 68 and hold mostly white-collar jobs: a bank vice president, two engineers, a computer technician, a retired teacher and a training specialist for a biotech firm.

The verdict in this case refutes the government's claims that everyone is willing to give up any rights that they have in the name of "fighting terrorism and protecting national security." The jury in this case had the courage and the intelligence to stand up for the truth in the face of this police-state logic.

The judge in the case issued a gag order on the jury, ordering them to not discuss their deliberations with lawyers or the media until the appeals are completed. However one juror talked to the Santa Rosa Press Democrat saying that all of the jurors felt that the evidence against the FBI and police was clear from the beginning. "There were too many lies and manipulation of the evidence. And way too much guilt by association. Law enforcement isn't supposed to do that. They should rely on the truth to make a case" the juror told the Press Democrat. "There was never a chance that these officers were going to be cleared," the juror said.

The FBI and Oakland police have announced that they plan on appealing the verdicts. The plaintiffs have also indicated that they plan to appeal the judge's decision that removed some of the top-level agents from the trial.

This important verdict comes at a time when the U.S. government is giving the FBI broad new powers. It has shined a light on FBI crimes and the ways that they seek to silence voices of opposition. It is important to learn from this history and step up the struggle to expose and oppose the government's machinery of political spying, frame-ups and repression.

This article is posted in English and Spanish on Revolutionary Worker Online
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