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Juror says FBI and cops lied (posted 7/9/02)

On July 2, Judge Claudia Wilken lifted the gag order barring jurors from talking to the media. Following are newspaper stories from the SF Chronicle and the Santa Rosa Press Democrat based on interviews with two of the jurors.


San Francisco Chronicle

Wednesday, July 3, 2002

Cops, FBI lied about probe, juror says
Woman speaks out on Earth First trial after gag order lifted

Jim Herron Zamora, Chronicle Staff Writer

Three weeks after they ordered Oakland police and the FBI to pay Earth First organizers $4.4 million, jurors were allowed to speak for the first time Tuesday, and one of them said "investigators were lying so much it was insulting."

"The FBI and Oakland (police) sat up there and lied about their investigation," said juror Mary Nunn of Oakley. "They messed up their investigation, and they had to lie again and again to try to cover up. I'm surprised that they seriously expected anyone would believe them."

Nunn spoke out about the verdict Tuesday after U.S. District Judge Claudia Wilken, responding to the request by the Chronicle and the Oakland Tribune, lifted her gag order on jurors giving interviews.

Wilken's order applies to the media but does not permit jurors to discuss the case with attorneys.

Four jurors declined to be interviewed. The other five did not return calls or could not be reached.

Wilken issued the gag order minutes after the jury announced its verdict on June 11 in a civil trial stemming from a May 24, 1990, car bombing in Oakland.

In one of the biggest civil rights verdicts of its kind, the 10-member jury unanimously ordered FBI agents and Oakland police officers to pay damages to the estate of Earth First activist Judi Bari and fellow organizer Darryl Cherney.

Both organizers were injured in the bombing -- and then arrested by investigators who thought Bari and Cherney were carrying a bomb to use it elsewhere.

The environmentalists said investigators had never seriously considered that the unknown person who placed a pipe in Bari's car might be opposed to Earth First.

The jury unanimously found six investigators -- FBI agents and police officers -- had violated the pair's constitutional rights to free speech and protection from unlawful searches.

Bari, who died of cancer in 1997, and Cherney argued that the investigation, which has never cleared them as suspects, had undermined their credibility and hurt their ability to promote forest preservation.

Nunn said that after a five-week trial members of the panel all found "the FBI really lacked credibility" in testimony. She said in deliberations members of the jury talked about contradictions in the accounts of Oakland police and the FBI.

"Police tried to blame their mistakes on the FBI, but the FBI was trying to shove the blame right back," Nunn said. "No one in law enforcement was willing to say 'we made a mistake' and stand up and admit it. They were evasive. They were arrogant. They were defensive."

She said jurors had agreed early in deliberations that the Cherney and Bari had been wronged but spent more than two weeks determining exactly who among the investigators was responsible and how to apportion damages.

The jury, after some disagreements, deadlocked on one count involving Cherney's arrest and exonerated law enforcement on a conspiracy count.

But overall they handed Bari and Cherney a big victory.

"We took our time and tried to do everything right," Nunn said.

The night before the jurors made their final votes, she said "I got on my knees and prayed to God to stop me if this is the wrong thing. I've never done anything like this. Going against the FBI is a big deal. I wanted to be sure."

Nunn, a ticket agent at American Airlines, said she wanted protection from terrorism like the Sept. 11 attacks. But her jury experience made her skeptical about giving law enforcement a blank check to bypass civil liberties.

"This trial taught me what it means to be American," Nunn said. "I realize that freedom is something we can never take for granted. . . . We are free because we hold people in power to a higher standard."

Chronicle staff writers Janine DeFao and Erin Hallissy contributed to this report.

Copyright 2002 SF Chronicle

The Press Democrat

Bari jurors break silence
Former Santa Rosa, Concord residents say panel believed officials made mistakes from start

July 3, 2002


Federal jurors, freed of a judge's gag order imposed on them after a $4.4 million verdict was returned in favor of Earth First activists Judi Bari and Darryl Cherney, said Tuesday they were determined to send a message that individual civil liberties can't be sacrificed even in the face of terrorist threats.

"Those two people were quickly accused by the FBI and Oakland police of being violent eco-terrorists, yet there wasn't a shred of evidence to support that contention, then or now," said juror Mary Nunn, a former Santa Rosa resident who now lives in Contra Costa County.

Nunn and juror Karen Latines, a Concord resident, spoke publicly after U.S. District Court Judge Claudia Wilken formally notified jurors Tuesday that she was lifting a gag order imposed on the 10-member jury after unanimous verdicts were returned June 11 against six of seven defendants -- three FBI agents and three Oakland police investigators.

Neither jury forewoman Janet Reinstra of Walnut Creek nor seven other jurors -- all Bay Area residents -- could be reached Tuesday for comment on the trial's outcome and the gag order.

Nunn and Latines agreed to be the first jurors to talk publicly about their eight-week trial experience, described by them as "intense" and "enlightening."

Nunn, a ticket agent for American Airlines, said she understands the fear the Sept. 11 attacks struck in the hearts of all Americans. "We were all traumatized," she said.

Nunn, said, however, she worries a government push to expand domestic surveillance tactics in order to combat feared terrorism could result in more incidents of civil rights abuses such as those claimed by Bari and Cherney.

Nunn said in the Bari civil rights case, which stemmed from a still-unsolved 1990 car bombing that permanently injured Bari, the basic scenario seemed clear to the jury almost from the beginning.

"The FBI and Oakland police immediately jumped to the conclusion Ms. Bari and Mr. Cherney were dangerous, and they falsified and misstated the facts to arrest them and search their homes before they even did the most basic investigation," said Nunn.

Bari died in March of 1997 from breast cancer. Her heirs and Cherney were finally able to bring the case to trial after 11 years of legal wrangling.

Latines, a Concord resident, said she is satisfied that the amount of damages jurors awarded to Bari and Cherney ensured that "our voices were heard."

Latines described the three weeks of jury deliberations as "exhausting."

Nunn called them "grueling."

But even as the deliberations stretched into weeks -- a record for the Oakland federal court where the Bari case was tried -- jurors remained civil and friendly, according to Nunn and Latines.

"We were very organized, and very careful to let everyone have their say. I don't think you could find a more fair jury. We took our responsibility seriously, and we worked hard to come to some resolution," said Nunn.

Nunn and Latines said the 10-member jury early in the deliberations reached general agreement that the Bari case had been badly handled, and that police misconduct had violated the two activists' constitutional protections from false arrest and illegal search and seizure.

"But it took a lot of time to decide who was responsible for what, and how much damages should be awarded," said Nunn.

In the end, three defendants bore the brunt of the case. Retired FBI agent Frank Doyle and his former supervisor John Reikes and former Oakland Police Lt. Michael Sims were held responsible for about $4.1 million of the total awarded to Bari and Cherney.

Nunn said the jury targeted the trio because of their supervisory roles. "They shaped how this case was handled, and they were wrong," said Nunn.

Nunn said jurors were too divided to reach agreement on Cherney's false arrest claim, or his and Bari's allegation that the FBI and police had conspired against them. Nunn said some jurors believed that because at least 12 hours apparently elapsed between the time of the car bombing and Cherney's formal arrest, investigators might have reasonably believed there was adequate probable cause to make an arrest.

Nunn and Latines said they hope the verdicts will serve as a reminder of the importance of protecting civil liberties.

"What happened to Ms. Bari and Mr. Cherney shouldn't happen to anyone," said Nunn.

Nunn cited a Bari family statement issued after the jury returned the verdicts.

Written by Martha Bari, the activist's younger sister who lives in Silver Springs, Md., the statement concluded "The verdict reminds us that protection against terrorism should never outweigh the protection of our own civil rights. Otherwise, like my sister Judi Bari, we will be made to suffer the consequences."

Said Nunn, "I think that says it all."

The Press Democrat

Bari juror explains verdicts, marathon deliberations
Finding little doubt of police, FBI misconduct, jury 'very cautious' in spending 17 days to decide case, damages

June 14, 2002


From the beginning of deliberations, a federal jury was convinced that the FBI and Oakland police had trampled the constitutional rights of Earth First activists Judi Bari and Darryl Cherney, but jurors needed 17 days to meticulously examine the case and award damages.

"We didn't want to rush to judgment, like we felt the FBI and Oakland police had done in this case. We were very cautious," said a juror who agreed to give an inside account of the marathon deliberations only on condition of anonymity.

The jury's bottom line "There were too many lies and manipulation of the evidence. And way too much guilt by association. Law enforcement isn't supposed to do that. They should rely on the truth to make a case."

Some jurors held out for substantially more damages than the $4.4 million awarded this week. But others, while convinced of law enforcement misconduct, wanted to award only nominal damages.

"In the end, the amounts we decided upon were an average. It took a lot of compromise on everyone's part to reach agreement," the juror said.

Three of the seven defendants in the case bore the brunt of the jury's decision. Retired FBI Agents John Reikes and Frank Doyle and former Oakland Police Lt. Michael Sims were held responsible for about $4.1 million of the combined damages awarded to Bari and Cherney.

"Those three shaped the events surrounding this case, and they were wrong. No one has any doubt about that," the juror said.

After their verdict Tuesday, jurors were instructed by U.S. District Judge Claudia Wilken not to discuss the case with trial attorneys, the public or the media because of the possibility of appeals.

Government lawyers and Bari attorneys said afterward the judge's demand would hamper the usual post-trial analysis of the civil case, which was decided after unusually lengthy jury deliberations.

Some jurors were prepared to publicly discuss the case after the verdicts, but declined to comment in view of the judge's edict.

According to the account related to The Press Democrat, there was little doubt among jurors soon after deliberations began that the six of the seven defendants -- three retired FBI agents and three veteran Oakland police investigators -- had "rushed to judgment" against Bari and Cherney in 1990, falsely accusing them of being responsible for their own car bombing. The seventh defendant, a FBI agent, was cleared.

"There was always a majority willing to return verdicts in favor of the plaintiffs. Everyone had strong feelings the case had been handled wrong," the juror said.

The 10-member jury was selected largely from Bay Area suburbs, including Redwood City, Walnut Creek, Lafayette, Concord and Burlingame. A few jurors lived in Oakland. Jurors ranged in age from 29 to 68 and hold mostly white-collar jobs a bank vice president, two engineers, a computer technician, a retired teacher and a training specialist for a biotech firm.

They only had the slightest awareness of the radical Earth First movement that was organizing protests against redwood logging or the political turmoil that surrounded Bari and Cherney and their activities in 1990.

"We didn't know anything about timber issues, or what was really going on with the redwoods. But we all had an understanding of the intensity surrounding such issues as abortion, so we figured things had to be somewhere along those lines," the juror said.

Jurors struggled to sift through sharply conflicting accounts by FBI agents and police of what happened in the first 24 hours after the pipe bomb exploded, ripping through Bari's Subaru station wagon as she drove along Park Avenue near MacArthur Boulevard in Oakland. Bari and Cherney, a passenger, were on their way to an organizing event in Santa Cruz for a planned Redwood Summer of logging protests.

Bari, who suffered permanent pelvic injuries, died of breast cancer in 1997. Cherney was slightly injured.

Doyle, then a bomb investigator with the FBI's counterterrorism unit in San Francisco, was the first FBI agent to arrive at the scene. He quickly told Oakland investigators that it appeared the bomb had been in clear view of Bari and Cherney, meaning they must have been transporting it when it accidentally exploded.

Within hours, Reikes, then head of the FBI's San Francisco counterterrorism unit, briefed a gathering of local and federal investigators about the suspected links of Earth First to acts of sabotage in Arizona, Santa Cruz and other areas. Sims, Oakland's chief investigator, decided to arrest Bari and Cherney within hours of the blast.

"Why did they act so quickly? Why did they rush to arrest them, and eagerly report that to the news media? Ms. Bari was seriously injured and in the hospital. She wasn't going anywhere. Neither was Mr. Cherney. Why didn't they wait, do their homework, and gather the facts? We don't know. We still don't," the juror said.

Jurors worked well together, resolving their disagreements amicably over the three weeks of deliberations.

"At one point, we had a whole wall covered with charts. We worked very hard to understand what had happened, and what went wrong. There were times we felt we were going in circles," the juror said.

But there was never a time when a majority accepted the argument that the defendants had "probable cause" to arrest and accuse Bari and Cherney so quickly.

"There was never a chance that these officers were going to be cleared," the juror said.


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