Feds Fiddled Down by Earth First!, File for Dismissal (Again)

Attorneys for the Federal Defendants

DEFENDANT'S MOTION FOR AN ORDER DISMISSING THE ACTION AND FOR SANCTIONS

The defendants, by their undersigned counsel, move the Court for an order dismissing this action and referring plaintiff's counsel to the Court's Disciplinary Committee for gross misconduct affecting the jury. The grounds for this motion are:

1. On Friday, May 24, 2002 the plaintiffs' and their supporters held a planned demonstration outside the courthouse in front of the United States Post Office in Oakland, California. Prior to the demonstration, the Court's Deputy Clerk advised counsel for the parties that the jury planned to discontinue their deliberations at 1:30 p.m. on Friday, May 24, 2002.
2. The organizers of the demonstration delayed introduction of the plaintiffs' legal team until 1:25 p.m. At the time of their introduction, Mr. Cunningham specifically noted that counsel were to remain "mum."
3. Notwithstanding Mr. Cunningham's admonition, as members of the jury exited the courthouse doors, Mr. Serra, using sound amplification equipment, loudly exclaimed that the assembled crowd ought to "say a prayer for the jury" so that they would be "objective" in their deliberations, and also noted that the evidence at trial indicated a deliberate plan by the FBI and OPD to violate plaintiffs' constitutional rights. Several jurors slowed and listened to Mr. Serra's presentation.

Plaintiff's counsel's actions were not accidental, and amount to an effort to influence the jury during their deliberations. Their actions are in violation of Rules 5-120 and 5-320 of the Rules of Professional Conduct of the California State Bar, as adopted by Local Rule 11-4(a)(1). Plaintiffs' actions taint the jury, and require the Court's action to preserve the sanctity of the jury's deliberations. Accordingly, the Court should enter an Order dismissing the plaintiffs' action with prejudice, and refer their counsel for disciplinary action. In the alternative, the Court should interview each juror and determine what each heard. The Court should then admonish plaintiffs' counsel for their misconduct in the presence of the jury, direct plaintiffs' counsel to remain away from the entrance and exits of the courthouse at times when the jurors may be arriving and leaving, and direct the jury that plaintiffs' counsel's misconduct should have no effect on their deliberations.

Dated: May 24, 2002

Respectfully submitted

Robert D. McCallum, Jr.
Assistant Attorney General
Civil Division

David W. Shapiro
United States Attorney

John L. Euler
Acting Director, Torts Branch

R. Joseph Sher
Senior Trial Counsel

Dennis C. Barghaan, Jr.
Trial Attorney

John Russo
City Attorney
William E. Simmons
Deputy City Attorney