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Indybay Feature

Bari v FBI 4/9: Dennis Cunningham's remarks

by sc
second day of the trial.
Today was the second day in the "Judi Bari & Darryl Cherney vs. FBI and Oakland Police" trial, taking place Monday - Thursday, 8:30 am to 1:30 pm at the Oakland Federal Building Courthouse, 13th and Clay, on the 4th floor in Judge Claudia Wilken’s courtroom.

Jury selection finished today before noon, the jury was seated, and Dennis Cunningham, lead counsel for the plaintiffs, gave his opening statement.

The FBI and Oakland Police Department (OPD) defendants were arrayed on the left side of the room.

The plaintiffs present were Darryl Cherney and Darlene Comingore, the executor of Judi Bari's estate. Lisa Bari, Judi's daughter, was also there on Judi's behalf.

Plaintiff’s co-counsel Bob Bloom had a serious medical emergency which will keep him out of the courtroom until next week. Plaintiffs would have liked to delay the trial until he could be there, but Judge Claudia Wilken did not allow it.

In the opening statement, Dennis Cunningham described the bombing and the events that took place afterward, outlined the history of Earth First!, and gave details that showed that the FBI and the OPD did not investigate the bombing but concocted a frameup of the victims, Judi Bari and Darryl Cherney. He said this was based on fabricated evidence, which was cooked up more or less on the spot and in the succeeding hours and days, claiming that Bari and Cherney were transporting an explosive device with a terrorist purpose.

Cunningham said that the particulars of the frameup were not all but mostly generated by the FBI. "The OPD were willing participants, they jumped right in, they thought it was a fine idea. They were operating as the front for the false case, with the FBI in the background.

"The so-called investigation that they conducted was in fact a sham. It never went to court, they said they were waiting for results from the laboratory. Seven weeks later the case was dropped. The FBI however continued their investigation of the bombing for a couple more years, using this as an excuse to harass and gather information on activists in Northern California environmental movement.

"Earth First! was targeted by the FBI. It was an attempt to neutralize the work that they were doing. The smear campaign conducted by the FBI, with the resultant headlines and news stories, had a drastic effect over time on the public and its perception of the image and reputation of Earth First! and on the work that they were trying to do."

In describing some of the falsification of evidence in the case, Cunningham used a padded chair to illustrate the placement of the bomb under the driver's seat in Judi's car. " The FBI claimed that Judi and Darryl had placed the bomb behind the driver's seat to transport it. However, both the injuries that Judi sustained and the damage to the car clearly show that the bomb was directly under the driver's seat."

A few weeks after the bombing, a letter was sent under the signature "the Lord's Avenger", claiming responsibility for the bombing and describing the bomb in accurate detail. Cunningham said that "from then on the FBI believed (or pretended to believe) that Judi Bari had sent the letter herself. They never made any serious effort to investigate that letter or the evidence that showed Judi and Darryl were the victims of this bomb.

"The bombers are still free. No one has ever been charged.

"The way the "investigation" was conducted amounted to a conspiracy among these agents and officers. The definition of conspiracy is "A meeting of the minds".

Cunningham described Earth First! as "many things: it is unstructured, it is not an organization, it is an organization; it is not a movement, and it is a movement. It is all these things and more. It was started in the early '80s by a small group to counter big corporations, who they said were destroying the environment. They decided that their tactics could include anything as long as the tactics weren't harmful to living things. As they said then, this included monkeywrenching, which meant things like destroying equipment -- and also spiking trees, which was pounding long thick spikes into trees and then putting up signs saying "These Trees have been Spiked. Don't Cut Them".

"These were sensational things that the media reported on. The group said, "We can't get any attention to the cause of protecting the environment. We need the press to pay attention." And that was how they started.

"Judi came to California in the late '80's. Darryl was already here; he started to work with Earth First! in ‘86-87, and they met in 1988 or so. They started working in the environmental movement, doing demonstrations, not monkeywrenching. Judi Bari came out of the antiwar movement and the labor movement." Cunningham described her early jobs, "She was a clerk in a department store and a member of the retail clerks' union. Then she worked at a postal distribution center outside Baltimore; she led wildcat strikes there. So she had established herself, her identity as a dissenter. She devoted her life to changing things. That was who she was and that is the kind of person Darryl Cherney is.

"They had a great rapport and for awhile they were lovers, and they began to do demonstrations together. They always sang, Judi played the fiddle and Darryl Cherney wrote satirical lyrics against the big logging companies and what they were doing. They had rallies and demonstrations, did what they call tree sits, rigging a platform 70, 100, or 150 feet in the air and a person would stay there. You might have heard of one person who was up in a tree for two years recently.

"They helped pass some laws that had at least some effect." Cunningham described some of the destructive effects of clearcutting, overlogging and logging on hillsides, when there is nothing left to hold the soil on a hill and the soil washes down and chokes the streams, kills the fish.

"By their actions they hoped to pressure for change and also to impede those logging oeprations by direct action."

Cunningham named the main timber organizations and spoke about Pacific Lumber, which had recently been taken over by a large corporation owned by Charles Hurwitz, who had bought the company with money from junk bonds. Then, in order to pay off the junk bonds, Hurwitz tripled the cut of trees.

"From the beginning, Judi Bari was saying 'The corporations are the ones we are against, not the loggers, we need to reach out to them, because the corporations are going to cut and run, and there will be no more jobs left.' She had, in fact, begun to reach out and made a bunch of contacts with the loggers and within the industry. That was one of the things that drew attention to her: because she was effective.

"One of the things she said was that monkeywrenching had to go. The movement had to be strictly non-violent. Tree spiking threatened loggers directly. 'We should not do it. We've gotta turn that image around, reassure people that we're not about that.'

"Earth First! gave trainings to prepare for Redwood Summer, trainings in "how to be non-violent in the face of violence". Because a couple of people had been beaten up, there were a lot of threats."

Cunningham described a time when one of the big lumber companies had just announced that they were going to shut another mill. Judi went to meetings and said that the town ought to take over the mill and save the economy of the town. "Somewhere on the other side, someone noticed her ability and her voice."

"Judi began receiving a number of written anonymous threats, seeming to be death threats. They said things like "Get out, you won't get a second warning". One was a photo of her with rifle scope cross-hairs drawn over her face. There were a dozen of these threats, on paper, and they had copies of them in the car when it was bombed."

Cunningham said that they also had in the car two or three fake press releases, that had been printed with Earth First! logos, that said things like "We don't buy that non-violent stuff". They were fakes to discredit Earth First!, and these fakes were passed out in loggers' break rooms, etc. There were various things wrong with these fake press releases; they spelled Darryl Cherney's name wrong, there were no contact numbers, some said "Arcata" and there was no Arcata Earth First! at all.

"A good faith investigation would have found out right away about these threats and fake press releases. They had the death threats in their hands and they ignored them. They looked only for the basis to prove Darryl and Judy were the perpetrators.

"A big aspect was the location of the bomb inside the car. When you see the photos, it is clear where the bomb was.

"When the bomb went off, Judi was following Shannon Marr in her car. Shannon Marr made a left turn, and Judi jerked the car to turn it into the left turn lane and follow, and that's when the bomb went off.

"The fireman who took her unconscious body out of the car had to disengage some of the springs of the seat from the flesh of her butt.

"The FBI's Doyle especially claimed that the bomb was behind the seat. But a bomb blows in all directions. The rear seat was almost untouched. The gaping hole in the floor of the car went from behind the driver's seat almost to the pedals.

"The officers of the OPD said that they would support the consensus of the location of the bomb. A Sgt. Hanson who had just been to a bomb school in Eureka at the College of the Redwoods, done by the FBI, said "I wasn't about to disagree with my teacher".

"The front door was all bulged out and had to be cut off the car to get Judi out. The back door was not affected, and the fireman was able to open it and walk inside to brace her head and immobilize her body.

"Judi and Darryl were arrested immediately. One OPD report says "I was called to duty at 4 pm to guard a prisoner." This was Darryl, who was in the emergency room. Karen Pickett, who came to help, was taken into custody. The people at the "Seeds of Peace" house, where Judi had spent the night, were taken into custody. Darryl asked for a lawyer and they would not get him one. They were arrested immediately, before any of the evidence could be analyzed.

Cunningham said that even the FBI's own bomb expert, David Williams, described the bomb as having been rigged with a motion device. Williams said that the bomb had functioned as it was designed to function. "The controversy over the bomb went on so long that they finally brought the expert out from Washington, DC. He told them ‘This bomb was under the driver's seat.’ Did they tell Darryl and Judi's lawyers, ‘We were wrong’? Did they tell the press? No. They didn't do anything. There is no report at all about the findings of this top expert."

Having further described falsification and fabrication of evidence by the FBI and OPD, including the FBI’s false claims that nails in the bomb were nails that belonged to Judi, Cunningham began to wrap it up, warning the jury that "You will hear from the defendants that these were reasonable mistakes. You will hear "We're environmentalists", "We have the same views", "We don't investigate groups", "We investigate individuals who might be involved in crimes".

Then he pointed out that "The Redwood Summer was originally called ‘Mississippi Redwood Summer’, and it invoked the civil rights movement, specifically for the non-violence.

"We don't let the police meddle in politics in this country. We are people who want change and we are active about it, willing to sit in the road like the civil rights people would sit at the lunch counter or ride on the buses

"Judi Bari was targeted because she had a big mouth and she moved people. When she didn't die, it became character assassination."

Cunningham concluded by saying that what had occurred is not permitted in this country, it's against the Constitution, it violates the Bill of Rights, and he asked the jury to bring back a judgment for money damages ("because that's how our society works") and for punitive damages, to make an example of these officers and agents and stop this kind of activity that violates people's rights.

Tomorrow the OPD and FBI counsel will offer their opening remarks, and the first witnesses will take the stand.


Press Conference outside the courthouse:

Judi’s daughter, 21 year old Lisa Bari, responding to a question about her reaction to Dennis Cunningham's opening statement, said, "This is very important to my family. I was emotional because these were things that were very painful. Now maybe we're going to clear my mother's name and find who the real bomber was. Yes, I'm very emotional about it."

Earth First! Organizer and long-time friend of Judi Bari, Alicia Littletree, responding to the question, "Did Earth First! ever fit the description of terrorism?": "Absolutely not. We have been victims of terrorism, we have been pepper-sprayed and beaten up, we have been harmed, but we have never done anything that would remotely harm anyone else." About tree spiking: "the irony of this is that Judi led the fight against tree spiking. She believed in organizing entire communities and she renounced tree spiking for Earth First!."

Lead counsel Dennis Cunningham was asked, "How do you disprove that they would not put a bomb under their seat?" His answer was, "The arming devices indicate that someone else armed the device. The switch would not be on, or the timer would not be expired. It's beyond comprehension that someone would drive around with an armed device like that. It's easy for someone to have slipped it into the car in the middle of the night, then pulled the switch -- the timer starts and when it elapses, the bomb is armed."

Attorney Tony Serra said, "Yes, this is a bad time" (for this case) After the World Trade Center attacks, "there is a spillover of increased respect for law. But we have a very strong case. We're into deterring any future act like this by law enforcement, any future 'Squad 13s'. We would like to have the system reformed."
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