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Legal Documents in Judi Bari vs. FBI & OPD

(revised 9/7/2010)

Motion to Preserve Bomb Evidence, August-September 2010

In a brazen move, the FBI, which never honestly investigated the evidence in the Judi Bari bombing, has given notice that they intend to destroy the remaining evidence in the still unsolved attempted murder. Surviving plaintiff Darryl Cherney files an objection to the destruction of evidence and moves the court to order the FBI to preserve the evidence and either turn the it over to him for DNA testing and other forensic analysis, or to deliver it to a certified 3rd party for testing. The FBI objects, saying it wants to destroy the evidence. The motion is set for hearing Sept. 8, 2010, in Federal Court in San Francisco before Magistrate Judge James Larsen. The motion and supporting documents are linked below. (PDF files)

Motion to Preserve Bomb Evidence from Destruction by FBI

Declaration of Dennis Cunningham

Declaration of Darryl Cherney

Declaration of James Wheaton

FBI Opposition to Motion (argument against our motion)

Reply to FBI Opposition (argument rebutting FBI Opposition)

(content below last revised 6/13/05)

  Judi Bari vs. the FBI: Snatching Victory from the Jaws of Deceit   (posted 4/13/03)

This item is not, strictly speaking, a legal document. However, legal teamers Ben Rosenfeld and Dennis Cunningham wrote a new article about the case for the Fall 2002 issue of NLG Practitioner, the legal journal of the National Lawyers Guild. It begins with a brief case overview, then, in the authors' words: "use(s) the case as a lens to explore a number of key challenges in civil rights litigation which we wrestled with, in order to aid fellow activists and attorneys in winning more 'people’s victories.' While we offer it as a law review article, we have not cluttered it with legal citations, in hopes that it will be accessible to attorneys and non-attorneys alike."
Click here to read the article.


Post-Trial Motions

The hearing of the post-trial motions took place Friday Nov. 1 before U.S. District Judge Claudia Wilken 

The Oakland and FBI defendants have filed motions seeking to overturn the unanimous jury verdicts against them, and also seeking to set aside or reduce the $4.4 million damage award. The Oakland defendants seek a new trial. 

Attorneys for plaintiffs Judi Bari and Darryl Cherney filed a post-trial motion seeking a new trial to include the six FBI higher-ups who were let out of the case by the court before the trial began. This group includes COINTELPRO master Richard W. Held, who was the chief of the San Francisco FBI office at the time of the bombing and attempted frame-up. 

A  hearing on whether defendants must pay plaintiffs' attorneys' fees is set for April 18, 2003. Assuming all post-trial motions for new trial are denied, the appeals process will begin, and the case will move to the jurisdiction of the Federal 9th Circuit Court of Appeal in San Francisco.

Several of the post-trial "pleading" documents are now available from this website in Adobe Acrobat format for online reading or for download and offline reading: (Click on titles to view in Acrobat Reader)

Please read the two defense motions in conjunction with the Plaintiff's Opposition (rebuttal) to them, which correctly sets out the facts ignored by defendants, and debunks their hollow arguments. 

(Click on the titles below to view the documents in Acrobat Reader)


  Jury Instructions and Final, Filled-In Verdict Form (revised 6/12/02)

The judge's official legal instructions to the jury and the form which the jury completed to report their verdict are available in Acrobat PDF format. The verdict form reveals every detail of the jury's verdict.

Note: Because these are graphic images of the pages rather than text, the files are fairly large, about 300 K each, but they have been optimized for rapid Web view, so if you have an up-to-date version of Acrobat Reader the first page will display very quickly, and you won't have to wait for the whole document to download before you can begin reading it..

Offer of Proof re FBI Misconduct (filed 5/14/02)

Plaintiffs proffer the testimony of two experts on the policy and practice of COINTELPRO – the purpose of which was to maintain the existing social and political order by the use of techniques carrying a serious risk of physical, emotional, and economic damage. The techniques also include callous disregard of clearly established law, the prevention and disruption of the exercise of First Amendment rights by the use of propaganda, bogus mailings and pamphlets, the use of informants, fictitious organizations, the use of hostile third parties to raise controversial issues against targeted groups, and the dissemination of derogatory information and the interference with and abuse of the judicial process. Plaintiffs' proof also includes evidence of the FBI's practice of using state authorities to conduct raids, make arrests, and prosecute cases based on spurious charges. The use of all such FBI practices are present in the instant case. The offer shows a 65-year history of such policy and practices, continuing to the present day.

The brief includes statements about the Bari case by historian Prof. Howard Zinn and by Flint Taylor Esq., an attorney with deep knowledge of the FBI's methods for "neutralizing" political targets.
Click here to read the full 45 page document in Adobe Acrobat PDF format. (307KB PDF file)

Plaintiffs' Opening Statement - Court Reporter's Transcript (posted 4/28/02)

Dennis Cunningham's opening statement to the jury sets out what the case is about, what the evidence will show and what plaintiffs would like the jury to do about it. (posted 4/28/02)

Who's Who in Bari vs. FBI

Not technically a legal document, but lists the names and brief descriptions of the plaintiffs, defendants, attorneys and prospective witnesses, giving correct spellings and brief descriptions of their role and the expected order and week of appearances of witnesses. A handy cheat sheet for reporters, courtesy of the Bari vs. FBI Media Outreach Team. Revised as trial progresses.

Plaintiffs' Trial Brief  

Summary of plaintiffs' legal case against the FBI and Oakland Police defendants. 

"The Court is well familiar with plaintiffs’ legal and factual allegations herein, most fully spelled out in Plaintiffs’ Motion re Qualified Immunity, filed March 18, 1997. To summarize them, plaintiffs charge that their (false) arrest and the attendant searches (including the second search of Judi’s house a month after the bombing) were deliberately carried out without probable cause, through the instigation of the FBI and with the knowing and willing cooperation of the Oakland Police Department, for the purpose of politically discrediting and "neutralizing" plaintiffs’ organizing work on behalf of Redwood Summer, Earth First!, and the environment generally. Plaintiffs charge that the grounds for arrest, alleged at the time and subsequently, were deliberately falsified by defendants and others acting in concert with them, to ensure that maximum sensational publicity harmful to the plaintiffs’ lawful movement and cause, and their constitutionally protected activities in furtherance thereof, would arise from the false charges against them. They charge that defendants conspired unlawfully among themselves to achieve these illicit objectives." 
(Click here to view the complete document.)
Filed Jan. 22, 2002. Adobe Acrobat format. (posted 2/6/02)

Offer of Proof regarding Expert Testimony of Anthony Bouza

Plaintiffs expect to call former police chief Anthony Bouza to give, in expert testimony, opinions about the (lack of ) reasonableness, truthfulness and good faith — as a matter of sound and upright police practice, consistent with normal training — of the proven actions and purported conclusions and decisions of the defendant investigators herein, in deciding to arrest plaintiffs for knowing possession of the bomb, and presenting their purported grounds in the search warrant affidavit....  (Click here to view the complete document.) Filed Jan. 20, 2002. Adobe Acrobat format. (posted 2/6/02)

Offer of Proof regarding Raid on Seeds of Peace 

Plaintiffs maintain that the raid on the Seeds of Peace house ordered by defendant Sims was part and parcel of the plot to discredit them and Earth First!, and disrupt the Redwood Summer program, by means of a sensational false arrest and bombing/terrorism scandal. Given that there was no honest justification for the arrest of plaintiffs, or for the purported belief they were knowingly in possession of the bomb in their car rather than victims of it, the raid also had no justification, in point of fact.  (Click here to view the complete document.) Filed Jan. 21, 2002. Adobe Acrobat format. (posted 2/6/02)

Eighth Amended Complaint 

The complaint is the foundation document of any lawsuit. It states who is suing whom and for what, summarizing what the case is about. (posted 8/23/01)

Plaintiffs' Motion In Limine One and supporting declarations.

In this document plaintiffs (Judi's estate and Darryl) try to define the scope of the impending trial by blocking or limiting lines of testimony and witnesses put on by the defendants, the FBI and Oakland Police. The document also includes plaintiffs' arguments against motions in limine made by the defendants. (posted 8/23/01)

"Motion for Justice"

Lead Attorney Dennis Cunningham filed a motion  July 2, 2001 to bring Richard W. Held back as a defendant in the case, to require FBI disclosure of the an alleged informant tip, and to full disclosure of other evidence still kept secret by the FBI. The motion is supplemented by two expert witness statements (see below). Judge Wilken denied this motion (and all other motions from both sides) at a July 29, 2001 hearing. (posted 7/19/01)

Statement by noted historian Prof. Howard Zinn on the FBI's long history of political repression (posted 7/19/01)

Statement by former FBI Special Agent John C. Ryan on routine fraud by FBI agents in handling supposed informant information. (posted 7/19/01)


Preliminary Motion to Reinstate Suit Against FBI Supervisor and COINTELPRO Mastermind Richard W. Held

Court rules require first asking the court's permission to file a full formal motion for reconsideration of the court's 1997 decision allowing Held and two other FBI supervisors out of the suit. 
Click here for the full text of the preliminary motion filed July 14, 2000.
(posted 8/10/00)

The Successful Motion Against Qualified Immunity
Granted by trial court and upheld on appeal

Court of Appeals Opinion Rejects Oakland's Appeal of Ruling on Immunity Motion and Reinstates Conspiracy Charge against Oakland

In their appeal of the lower court's ruling against them in Plaintiffs' Motion re Qualified Immunity, the OPD argued that the FBI gave them false information that the bomb had been visible on the back seat floorboard and thus the activists must have known they were carrying it.  The appellate court ruled Oakland had no right to rely on false statements of the FBI, stating, "[The OPD] had been at the scene and had personally observed the location of the hole caused by the explosion ... underneath the driver's seat."

The appellate court also granted plaintiffs' cross-appeal of the lower court's dismissal of the conspiracy charge against Oakland Police. The court ruled that Bari and Cherney, "have presented sufficient circumstantial evidence that [the Oakland police] intended to inhibit their First Amendment activities, and that they entered a conspiracy to further this goal."  This included providing inaccurate information to the media, monitoring Earth First! prior to the bombing, and acting "in close cooperation with [FBI] ‘conspirators'" to contribute misinformation during the process of obtaining search warrants of Bari and Cherney's homes. 
     Read the full text of the Sept. 24, 1999, appeal ruling in Bari v. Sims on the Federal Court website (opinions)(updated 9/13/00) (Note: If you find the opinion no longer available on the court website please notify webmaster at so we can post the opinion directly on this website.)

Judge Approves Anti-Immunity Motion! A key victory!

In a key court victory for Judi Bari and Darryl Cherney, federal Judge Claudia Wilken ruled in October 1997 that six FBI agents and three Oakland police officers cannot avoid trial by claim of qualified immunity. Four FBI agent defendants, including COINTELPRO ringleader Richard W. Held, and two of the Oakland police defendants were dismissed for lack of evidence. The Oakland defendants unsuccessfully appealed this ruling, delaying the case for two years, but leaving Oakland in worse position than if they had not appealed.  This ruling keeps the case alive and moves it closer to a jury trial. (revised 2/5/2000)

Short press release announcing the decision

Full text of 66 page decision.

Motion Against Qualified Immunity

Full text of the powerful motion summarizing the evidence that the FBI and Oakland Police are guilty of: "illegal attack on political rights, false arrest, illegal search, denial of equal protection, and conspiracy, in violation of clearly established rights." This motion was filed March 18, 1997, and there was a hearing on the motion  in federal district court in Oakland on August 1, 1997. The judge approved this motion, cutting off one of the FBI's main delaying tactics and moving the case toward trial.(posted 7/14/97)

Attorney Dennis Cunningham's statement  

announcing filing of this motion, with over 400 pages of overwhelming evidence of FBI wrongdoing. A clear and strong statement of FBI crimes against Judi and Darryl.

Dedication Page  

of brief for Motion re Qualified Immunity, with great photo of Judi Bari giving raised fist salute in front of Oakland Federal Building