The reason for the delay is the terror attack of Sept. 11 and the ensuing war fever, making it difficult or impossible to get a fair jury trial against the FBI in the immediate future. The FBI, for all its many well-publicized faults is now almost universally seen as our first line of defense against terrorists. The horror of the attack also has made it impossible for the legal team to focus on finishing up the pretrial paperwork, which was due to be filed on the day of the attack. The courthouse was shut down that day for security reasons, and the legal team, like most Americans, were glued to the horrific images on television.
The judge ruled the witness and trial exhibits lists and jury instructions must be filed Monday, Sept. 17, and the pretrial conference is still set for next Friday, Sept. 21. This seems odd, given that the trial is now six months away, and these filings normally are due on the eve of trial, but that's how the judge left it, apparently not thinking it through or considering the unnecessary burden on the legal team.
The FBI and Oakland defendants agreed in advance to take no position on the delay, neither opposing nor supporting it. Friday's hearing was held by telephone conference call. FBI attorney Joseph Sher said the official U.S. government policy regarding the terror attack is that it won't be allowed to interfere with business as usual, but he didn't oppose the delay. Most likely he breathed a sigh of relief, since in July he asked to delay trial until January or February, a request the judge denied July 27.
Dennis Cunningham, lead counsel for Bari and Cherney, said following Friday's ruling that he had mixed feelings about the delay. "We were ready to get it on," he said, "but that's unthinkable in view of what's happened." He said Judge Wilken was obviously not happy about the destruction of her long planned calendar, but it was inevitable.
Below are quoted excerpts from the emergency motion for continuance:
"It is simply not fair to plaintiffs to proceed with this trial at this time. Plaintiffs have waited and endured endless delays and interlocutory appeals for some eleven years. Plaintiffs are most anxious to proceed to trial as soon as possible. But they want a fair trial, a trial wherein the jurors are able to devote their attention to the many details and issues of the case. The tragic events of Sept. 11 have simply foreclosed the possibility that plaintiffs