Update: Bari-Cherney v FBI Jury Deliberations

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The Press Democrat - May 29, 2002
http://www.pressdemocrat.com/local/news/29bari_b1.html>http://www.pressdemocrat.com/local/news/29bari_b1.html


Judge to Bari jury: Keep on trying

Group reaches agreement on some claims in activists' case, but not all

by Mike Geniella

OAKLAND -- A federal jury said Tuesday it has reached unanimous
verdicts on some claims in the civil rights case brought by two North
Coast environmental activists against the FBI and Oakland police, but
has not resolved others.

The 10 jurors didn't specify whether they have found in favor of
Earth First organizers Judi Bari and Darryl Cherney, or the seven
defendants -- four FBI agents and three Oakland police investigators
-- who are the focus of a trial now in its seventh week.

At the urging of U.S. District Court Judge Claudia Wilken, jurors
resumed deliberations aimed at returning unanimous verdicts on all
claims at issue.

The jury left Tuesday without any further announcement, and is to
return at 8:30 a.m. today to try again.

Wilken told jurors that if necessary she will accept the partial
verdicts, meaning unresolved claims may have to be retried before
another jury.

"Obviously, unanimous verdicts on all issues would be preferable,"
Wilken told jurors.

The jury's announcement capped a testy day that began with Wilken
chastising Bari and Cherney lawyers for addressing a rally held
Friday in an outdoor courthouse plaza to mark the 12th anniversary of
the unsolved car bombing at the heart of the case.

Government lawyers moved for dismissal of the case, contending
remarks made by the attorneys were heard by departing jurors and
"tainted" their deliberations.

"I believe the taint is indelible," said Joseph Sher, lead government
attorney and a senior trial counsel for the Department of Justice.

Wilken said she was concerned, but declined to declare a mistrial "at
this point."

She berated J. Tony Serra and four other Bari attorneys for engaging
in "exceedingly improper" conduct. She banned the attorneys from
being anywhere near the courthouse entrance when jurors are arriving
or departing.

Wilken brushed aside assertions that the rally had been long planned
and was never intended to sway deliberations. The attorneys also
expressed concern that the judge's edict that they stay away from the
courthouse plaza violated their own free speech rights.

"Where do we conduct trials? In a courtroom, or in public places?"
snapped Wilken.

It was the judge's most heated exchange yet with members of Bari's
legal team, who have raised Wilken's ire during the trial over
tactics inside and out of the courtroom.

After labeling the rally incident "quite unbelievable," Wilken
summoned the jury into the courtroom, where she admonished them to
ignore anything they saw or heard Friday.

Jurors, who began deliberations May 17, have signaled in notes to
Wilken that they're struggling with an 18-page verdict form that
requires them to unanimously agree on whether Bari and Cherney's
constitutional rights were violated during the bomb investigation.

Oakland police, who testified during the trial that they relied
almost exclusively upon the FBI for assistance, arrested the pair in
May 1990 and accused them of being responsible for placing the pipe
bomb that blew up in Bari's car.

Bari, who died in 1997 of breast cancer, suffered permanent pelvic
injuries. Six weeks after the incident, Alameda County authorities
declined to prosecute Bari and Cherney, citing a lack of evidence.

The FBI continued to identify the two activists as the only suspects
in the case until 1993.

Jurors are deliberating the merits of claims by Bari and Cherney that
their constitutional rights to protection from false arrest, illegal
searches and free speech were violated by police and members of the
FBI's counter-terrorism unit based in San Francisco.

Bari and Cherney contend the FBI and Oakland police conspired to
frame them and damage the radical environmental movement they
promoted in the redwood region.

The lengthy verdict form in the case requires jurors to decide Bari's
and Cherney's claims individually, and to identify each officer or
FBI agent they believe may have violated their rights.

Jurors also must decide if any monetary damages are to be awarded,
and if so, how much each cited defendant must pay toward the total.

In addition, jurors must weigh whether any of the defendants
participated in an alleged conspiracy to deny Bari and Cherney their
First Amendment rights by publicly defaming the activists, and
casting a chill over their planned "Redwood Summer" of anti-logging
protests.

Finally, jurors must decide whether Bari and Cherney are entitled to
punitive damages.
 
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