Media ignores FBI trial, but jury is taking it seriously -- Final End

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Date Posted: 00:16:55 05/29/02 Wed
Author: Drummond
Subject: Media ignores FBI trial, but jury is taking it seriously

from www.sfbg.com

The Judi Bari bombshell

Some truly startling revelations emerged from the Earth First! trial in Oakland.
By A.C. Thompson
ALL THE EVIDENCE in the Judi Bari bombing trial has been presented, and yet, maddeningly, the questions linger. We still don't know who planted the homemade, nail-studded pipe bomb in Bari's Subaru. And we still don't have conclusive proof that a secret law enforcement cabal tried to frame Bari and cohort Darryl Cherney.

At press time, the jury, which began deliberating May 17, had yet to reach a verdict, and attorneys for the Federal Bureau of Investigation and the Oakland Police Department were still fighting to get the case dismissed.

But whatever happens, the trial, like the Warren Commission of the 1960s, or the Iran-Contra hearings, will do little to quell the conspiracy theories.

Still, the six-week legal skirmish was hardly a snooze. Quite the contrary: some fairly blockbuster revelations leaked out � and for the most part, the daily papers have ignored them.

For those of you just tuning in to this long-running whodunit, Bari and Cherney were driving through east Oakland in May 1990 when a bomb exploded in their car. The injured pair were prominent figures in the Earth First! movement, a loose-knit, nominally leaderless group of shit-disturbing environmentalists. Oakland cops � working with the Federal Bureau of Investigation � quickly arrested the duo. Cherney and Bari, the cops said, had accidentally blown themselves up while transporting their own bomb.

"We're assuming the device was placed in the car by the occupants," one Oakland detective told the San Francisco Examiner at the time.

The press pounced on the story. The Ex painted Earth First! as a band of deranged ecoterrorists. The New York Times ran a front-page piece on the incident. Then, a few months later, with Earth First!'s reputation in tatters, the charges were quietly dropped for lack of evidence.

The cops never busted the real bomber � a fact that's tied amateur sleuths and paranoiacs from Arcata to the Golden Gate in Pynchonian knots for the past 12 years.

To Cherney and Bari it smelled like a classic COINTELPRO-type setup, the kind of thing J. Edgar Hoover did to the Black Panthers. They figured the feds and local cops had jumped at the chance to arrest them � and link them to terrorism in the media � even though the evidence was shaky at best. In 1991 the two Earth First!ers hit back, suing the FBI and the Oakland Police Department, charging the agencies with fabricating evidence, giving false testimony, and collaborating in a smear campaign.

Last month, after more than a decade of legal tussles � and five years after Bari died of cancer � Cherney and Darlene Comingore, the executor of Bari's estate, finally got the suit in front of a jury.

It was a wild ride. Testimony in the courtroom of U.S. District Judge Claudia Wilken lifted the lid on some amazingly suspicious � possibly criminal � behavior on the part of the FBI and the OPD.

First the agencies were forced to admit that information included in two key search warrants was bogus � the only real question was which agency had lied. Later testimony revealed that Oakland cops raided Bari's house even after she and Cherney were exonerated by an FBI bomb expert. Then we learned about the mysterious disappearance of 57 FBI documents related to the case.

On top of the bungling or subterfuge � it's tough to say which � the trial unearthed another fairly stunning fact: A shadowy OPD unit kept tabs on scores of local dissidents and shared that information with the feds. The G-men, for their part, compiled a database of some 600 people Bari and Cherney called on the phone.

And who said the Red Squads and COINTELPRO were a thing of the past?

� � �

Oakland's grassy knoll is an unremarkable stretch of pavement near the intersection of Park Avenue and MacArthur Boulevard. On May 24, 1990, right about noon, Bari was driving her white Subaru wagon north on Park when an improvised explosive � a foot-long, two-inch-diameter pipe filled with flash powder and covered with nails � detonated, ripping a gaping hole through the floorboards, buckling the front doors, and crumpling the roof. After careening into a fence, the vehicle skidded to a stop.

"I knew it was a bomb the second it exploded," Bari wrote later in her book Timber Wars. "I felt it rip through me with a force more powerful and terrible than anything I could imagine. It blew right through my car seat, shattering my pelvis, crushing my lower backbone and leaving me instantly paralyzed."

As a black plume of smoke floated up into the afternoon sky, paramedics rushed Bari to Highland Hospital. (Surprising the surgeons, Bari eventually regained the use of her legs, but debilitating pain plagued her for the rest of her days.) Cherney, who'd been riding shotgun, was less injured and was treated at the hospital for lacerations and a scratched cornea and released.

Bari and Cherney had driven down from the rural North Coast to lay the groundwork for "Redwood Summer." Taking inspiration from the civil rights movement, the duo were spearheading a campaign of civil disobedience to slow the breakneck, ecosystem-ravaging pace of redwood logging in Humboldt County. Bari, a carpenter with a sailor's tongue and a no-bullshit attitude, lived in a Mendocino cabin with her two daughters. A fast-talking ex-New Yorker, Cherney kept a place in Humboldt.

Bari, as Stephen Talbot pointed out in a recent Salon story, was not a saint. But she was a hell of an organizer. And in 1990 she was driving the timber industry in northern California nuts. Earth First! had brashly burst on the scene a few years before with "no compromise" tactics, blockading sawmills and chaining themselves to bulldozers � aggravating both loggers and law enforcement. The battles captured national news coverage. Feeling besieged, some lumberjacks and mill workers went after Bari, one of the most visible Earth First!ers. She received several written death threats and more dirty looks than she could count � at one point she was nearly killed in 1989 when a timber truck ran her car off the road.

When the bomb went off, Bari, 41 at the time, was carrying copies of some of the threats in a folder in her car.

Within minutes of the explosion, both the FBI and the OPD were combing over the crime scene. Special Agent Timothy McKinley was the first G-man there, followed by FBI bomb analyst Frank Doyle and others. There was "a large hole in the floorboard of the car, underneath the [front] seat and to the rear," Mckinley, who's now retired, told the court.

Surveying the wreckage, the badge-wearers, led by Doyle, quickly decided the bomb had been resting on the floor behind the driver's seat when it went off. From this they concluded � or said they concluded � that Bari and Cherney must have been aware of the explosive, that it must have belonged to them.

Hours after the explosion � exactly how many hours remains in dispute � Bari and Cherney were taken into custody by Oakland cops. A morphine-addled Bari awoke from surgery to find two officers looming over her hospital bed.

Three weeks later an FBI lab technician would exonerate Bari and Cherney, saying the bomb had been hidden beneath Bari's seat.

From day one Bari and Cherney argued the bomb's location would've been obvious to Ray Charles. As Cherney told us last week, "How do you blow up the front end of a car with a bomb that's placed in the back of the car?" The FBI and the OPD, they maintained, had ignored the clear and convincing evidence in a quest to jail them and slander their cause.

Assistant U.S. attorney R. Joseph Sher � the lead lawyer for the feds � was ready for this argument. After checking the damage to the Subaru, Doyle "didn't think a bomb that was as big as this one was could've fit under the front seat," Sher told the jury. The lawyer also trotted out a jargon-happy Pentagon scientist to buttress Doyle's diagnosis.

� � �

Digging through the car on the day of the blast, Doyle uncovered another crucial clue he claimed would link Bari and Cherney to the bomb.

The explosive 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 like pins in a pincushion.

Inside the Subaru, Doyle found a bag of unused nails. Those nails, he claimed, were identical to the nails in the bomb. Obviously, Doyle concluded, Bari and Cherney had built the antipersonnel device.

There was just one problem: the nails didn't match at all. The "clue" was bogus.

In truth, the nails in the bag � short, fat roofing nails and thick, long framing nails, which were not unusual cargo for a person who made her living as a carpenter � didn't even remotely resemble the nails used in the bomb.

Somehow, though, this phony evidence ended up in a search warrant used to rifle through Bari's Redwood Valley residence. In a sworn affidavit Oakland police sergeant Robert Chenault laid out the evidence implicating Bari, which provided the legal justification for the search. Chenault played up Doyle's discovery of the "identical" nails in the May 25 affidavit.

Today, Doyle � now a private antiterrorism consultant � denies 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."

Chenault, on the other hand, insists Doyle fed him fake evidence. "Is it correct to say that Doyle almost dictated to you what to say [in the affidavit]?" asked Bloom, the plaintiffs' attorney.

"Yes," Chenault said.

Hmm, is somebody lying here?

� � �

On June 14, three weeks after the crime, FBI lab technician David R. Williams flew out from Washington to inspect the mangled auto. He'd already analyzed bomb fragments. Now he scoped the car: the front doors and the front section of the roof were devastated, while the backseat and rear doors were nearly unscathed. The explosive, Williams told his FBI colleagues and the OPD detectives, had been hidden under Bari's seat.

He'd also reached an additional, quite salient, conclusion about the incident. In trial testimony Williams said he told Doyle and other case investigators that the improvised explosive was a time bomb and had "functioned as designed."

The implication was clear: Bari and Cherney were victims of an assassination plot, not plotters of an assassination.

Still, the OPD didn't dismiss the charges for another month, and FBI records indicate federal agents were snooping on Bari and Cherney as late as November 1991.

If Williams is telling the truth, it sure looks like his fellow officers at the FBI and the OPD were bent on railroading Bari and Cherney � even after he'd discovered forensic evidence clearing them.

But Oakland detective Michael Sitterud had met with Williams on June 14, and he gave the court a very different story. He said Williams had told him about new, damning evidence against Bari and Cherney on June 14.

During the May 25 raid on Bari's house, Chenault seized "a partial box of finishing nails" � again, not a surprising find in the home of a carpenter. The OPD shipped the nails to Williams for comparison to the bomb nails.

On the stand Sitterud was unequivocal: Williams met with the OPD and said he'd conclusively connected the nails taken from Bari's house to the bomb. In fact, Sitterud included Williams's supposed forensic findings in a June 25 search warrant affidavit used to authorize a second raid on Bari's house.

"It was one of the most significant and conclusive pieces of evidence," Sitterud testified. "We felt we had closed the case."

But the nails turned out to be another bunk clue � and in the end there was no evidence linking the Earth First!ers to the construction of the bomb.

In court Williams denied ever making a meaningful link between the two sets of nails. So once again, the FBI and the OPD couldn't keep their stories straight.

You can look at this two ways.

Perhaps it was an honest mistake. That's the angle played by assistant U.S. attorney Sher. "Nobody's lying," he told the jury. If so, all we have here is interagency miscommunication, something akin to a game of "telephone."

Taken as a whole, though, the testimony presented at trial supports the more sinister conclusion. It looks like one of these two officers fabricated evidence. The only real question is who: Williams or Sitterud?

Williams, for his part, has a troubled history in uniform.

He was implicated in the FBI crime lab scandals of the mid 1990s. The Justice Department's inspector general pilloried him in a 1997 special report. The I.G. said the forensic analyst lacked "the objectivity, competence, and credibility that should be expected of examiners from the FBI Laboratory. Most egregiously, Williams gave a scientifically unsupportable opinion, based on speculation beyond his scientific expertise."

Dr. Frederic Whitehurst, an explosives expert who worked with Williams at the FBI crime lab, is blunt. "I think history has already labeled David Williams," Whitehurst said via phone. "Any jury that doesn't see that is clearly blind."

� � �

The Oakland cops had been spying on Earth First! � and, it turns out, a lot of other groups � long before the bomb went off. In fact, evidence at the trial showed, the OPD was operating a secret intelligence unit that kept tabs on law-abiding people who happened to be members of certain political groups.

In 1990, Oakland cop Kevin Griswold was one of two officers assigned to the department's intelligence unit, and he knew all about Bari and Cherney's anarchic enviro group. "I was responsible for assessment of [political] groups in the Bay Area," Griswold testified. "My work was for civil disobedience and dignitary protection."

"Is it fair to say that at the time you had a focus on Earth First!?" asked Bob Bloom, one of the plaintiffs' lawyers.

"Yes, I did," Griswold answered.

Griswold certainly had a good grasp of what the group was up to. A month before the bombing, when Earth First! attempted to hang a giant banner from the Golden Gate Bridge, Griswold just happened to show up � 10 miles outside his jurisdiction � along with a contingent of G-men.

And Earth First! was just one of the targets of Griswold's unit. On the stand Griswold admitted to keeping files on 300 activist groups, including 20 environmental outfits.

We gave a call to the OPD to see if the department is still in the habit of tracking the activities of dissidents. Not surprisingly, the OPD declined to comment on the issue.

The feds were also quite familiar with Earth First! Intriguingly, Agent Doyle, one of the first feds to appear at the bomb scene, was a key player in project THERMCON, a sting operation on the Arizona chapter of Earth First! that made headlines all over the country. In 1989, employing an undercover agent provocateur, the bureau busted four Earth First!ers, including movement founder Dave Foreman, on charges that they had conspired to topple power lines in the Arizona desert.

When a similar act of sabotage occurred in the Santa Cruz mountains in May 1990, the bureau immediately suspected Bari and Cherney, Agent Phillip Sena told the court. This suggests the bureau had its eye on the two even before the bombing. (As it turned out, Cherney and Bari were several hundred miles away when the sabotage took place; no one was ever caught.)

Later, while probing the car bombing, the bureau cast a wide net. The feds used phone records to compile a list of 634 numbers Cherney and Bari called during the spring of 1990, said Agent Patrick Webb under questioning. "It's a standard investigative technique," he told the jury.

The FBI used the numbers to question dozens of Bari/Cherney associates, building dossiers on activists and organizations, including the Center for Constitutional Rights, a liberal New York legal foundation.

The feds admitted they still have files on those individuals and groups, although nobody on the list has ever been charged with any crime related to the bombing.

Other FBI case files, however, seem to have vanished into the ether. When Cherney and Bari filed suit, they subpoenaed the entire mountain of paperwork the FBI had compiled on the bombing. As the material filtered in, it quickly became clear something funky was going on. The 600-odd documents were all meticulously numbered. From the sequence of numbers, it appeared some 60 documents had just disappeared from the files.

The Earth First! lawyers contacted the FBI. The bureau coughed up a few more documents.

But at trial 57 documents still couldn't be accounted for. "I've never seen anything like it," said Bill Simpich, the lawyer who first noticed the numbering discrepancy.

The FBI described it as a benign case of accidental misnumbering. Cherney has another theory: "I think the FBI was surveilling us. I think that's what's in the missing documents."

� � �

While the FBI and the OPD looked shady and deceptive, the Earth First! legal team stretched the truth at times too.

Late in the trial celebrity lawyer J. Tony Serra took the floor, launching into a dramatic Rumpole-like spiel. The way he told it, Bari and Cherney were "destroyed" by the arrests and attendant bad publicity. "Their lives were ruined," he told the jury. "Everything true and meaningful and good was taken from them."

"I was vilified," Bari said in an emotional videotaped deposition played to a hushed courtroom. And indeed she was. The Examiner, to name just one media outlet, bludgeoned Bari, portraying her as a shot-caller in some sort of "green mafia," a fanatical group bent on ridding the earth of humans.

Lead attorney Dennis Cunningham suggested the bad press "neutralized" Earth First!, draining the group of any political clout.

History contradicts that claim. While the arrests definitely marred Earth First!'s rep in the short run � and certainly scared off some would-be members � the movement bounced back. In 1998 the group scored one of the more substantial victories in the history of environmental protest, forcing federal and state officials to shell out $500 million dollars to buy and preserve 7,500 acres of Humboldt County's Headwaters forest.

It was the triumphant culmination of the quixotic quest Cherney and Bari had begun years before.

At times disorganization and poor strategizing also plagued the plaintiffs' legal team. Cunningham kept losing his notes and meandering off on tangents. Bloom sometimes seemed out of step with the rest of the lawyers, arguing points that had already been ruled on by Judge Wilken.

While the Earth First! lawyers brought a mild level of chaos to the proceedings, the superstraight lawyers on the other side of the room were all biz � a fact that probably worked in favor of the OPD and the FBI. The contrast was clearest during closing arguments, as the Earth First! lawyers offered passionate, rhetoric-heavy speeches, complete with Alexander Hamilton quotes and allusions to the Wobblies and Sacco and Vanzetti that probably flew directly over the heads of the jury.

Sher, on the other hand, set out to systematically obliterate the plaintiffs' case, point by point. "The only evidence," he boomed, "is that ... experienced, honorable law enforcement officers investigated criminal conduct."

A few minutes later Sher started in on an illuminating riff.

"Our purpose is not to pass judgment on whether the investigation was perfect. This is not a proceeding to discipline the officers. Whether someone was negligent, that is not our purpose here."

But in a sense, that's precisely what this trial was about. From the start Bari and Cherney refused to consider settling the case � and it's entirely possible the feds would have paid them a substantial amount of cash to make the whole thing go away.

What the two activists wanted was their proverbial day in court � a chance to question the Oakland cops and the feds under oath, to flesh out the truth and expose the discrepancies in the evidence and the shoddy investigation that linked Earth First! to a horrific crime. They wanted to shed light on the government's lies.

And on that level they had some remarkable, even stunning, successes. The trial showed that, at the very least, the FBI and the OPD had so badly bungled the bomb investigation that nothing the two agencies came up with could be trusted. The evidence suggested it's at least possible, if not likely, that one or both of the police agencies took advantage of the attack that almost killed Bari to attempt to make Earth First! look like a dangerous gang of bomb-wielding nuts.

Outside the courtroom last week, Cherney was operating in full dress-up mode, clad in a not-too-cheap suit with a not-too-outrageous tie, his beard and wild black ringlets trimmed back. Sitting on the polished hallway floor, he looked spent, like a boxer trying to survive round 12. Still, as always, he had a quip at the ready. "The good news is that all this stuff came out," Cherney said. "The bad news is these people are running the country."

Research assistance was provided by Hank Sims and Olivia deBree. E-mail A.C. Thompson at ac_thompson@sfbg.com.

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