ON THE COVER North Coast Journal Weekly

Courtroom drama: A scene from the Cherney v. FBI trial


At issue in the trial taking place in Oakland is not the enduring mystery of who planted the bomb that shattered Judi Bari's pelvis on that May day 12 years ago. Instead, a jury has been asked to determine whether the FBI and the Oakland Police Department violated the civil rights of Bari and Darryl Cherney when they arrested the two Earth First! organizers within hours of the blast. The charge? Illegally manufacturing, transporting and possessing an explosive device. Six weeks later, Alameda County prosecutors decided not to mount a case and the charges were dropped. Ten months after that, Bari and Cherney filed a federal lawsuit alleging that the FBI and the Oakland police had falsely accused them. After years of delay -- due mainly to FBI attempts to have the case thrown out -- the lawsuit is finally getting a hearing. A jury is expected to make a determination in a matter of weeks.

(Editor's note: This report focuses on a single day -- May 2 -- in the ongoing legal battle in Oakland. Last Thursday did not offer dramatic testimony. But it did illuminate some key differences between the two sides -- both in terms of style and substance -- that are likely to influence jurors.)

THE GUARD SNARLED WHENEVER HE WAS approached. "No-one's allowed up, you hear me?" he snapped. Like an angry dog fending off intruders, he was determined to prevent anyone from entering the packed courtroom where law enforcement authorities stand accused of civil rights abuses connected to an infamous incident: the pipe-bomb explosion on May 24, 1990, that nearly killed the late Earth First! activist Judi Bari.

The potential intruders did not look threatening. They milled around outside the federal courthouse in Oakland, munching organic food out of Whole Foods bags and twirling around in long flowing skirts. When asked about the trial, however, they turned serious.

"It's the first hippie assassination. I took it personally," said Ray Banque, an unemployed man from Berkeley, referring to theories that the bomb that went off in Bari's car that day as she drove through Oakland was meant to kill her and fellow activist Darryl Cherney. Banque had a long curly gray beard and a black bandana tied around his head. His shirt was covered with political pins -- "Free Mumia," "Real Patriots Ask Questions," "No Racist Attacks."

"I'd like to see Darryl testify," he said. "I'm here for support."

Cherney has spearheaded the effort to bring the FBI and the Oakland Police Department to trial. The suit, which seeks almost $18 million in damages, alleges that authorities violated Bari and Cherney's civil rights when, just hours after the explosion, they arrested the pair, charging them with manufacturing, possessing and transporting an explosive device. Six weeks after the arrest, Alameda County prosecutors declined to charge the two North Coast activists.

There was a reason the courtroom was packed on this day, May 2. Bari and Cherney were both scheduled to testify, Bari via a video recorded just weeks before her death from breast cancer in 1997. The trial was taking longer than expected, however, so their testimonies were postponed.

Whenever someone left the building, potentially freeing-up a seat, all eyes turned toward the door. There was an expectant silence as everyone waited for a signal from the guard who was waiting for the word from the courtroom that he could let someone else in. Each time, one or two lucky people were pulled in, searched and escorted up the elevator into the hallowed halls of the federal courthouse.

After each person was allowed inside the supporters joked about who should be next.

"Let's go by how far people have come!" someone called.

"What about seven hours by motorbike?" another said, to uproarious laughter. Despite their long journeys, the cheerful group didn't seem to mind very much whether they got in at all.

Like many of the supporters, Jackie Pantaleo, Cherney's assistant, has driven from Humboldt County regularly since the trial began. Pantaleo thought that the trial was going well for Earth First!, but added that it's hard to tell what the jurors are thinking.

"You never know how other people are going to see a thing," she said.

According to Pantaleo, one of the most telling moments came when the trial moved out of the courtroom and the jury was allowed to view a critical piece of evidence: the 1981 Subaru that Cherney and Bari were in when the bomb exploded. The plaintiffs wanted to show that the bomb was hidden in the front part of the car when it went off and was not put in the back by Bari and Cherney as law enforcement authorities have claimed. This is a contentious issue that could sway the outcome of the trial, although after 12 years the mystery of who planted the bomb is likely to remain unsolved.

In any event, on the field trip the jury saw an undamaged version of the type of car Bari was driving that day -- a 1981 Subaru -- set next to the damaged car. Pantaleo said that with the two cars side-by-side, "it was obvious that the bomb exploded near the front of the car."


Inside the courtroom

The six-week-old trial was being held in a windowless wood-paneled room on the fourth floor of the Oakland federal building. A huge American flag rose from a gilded stand at the front of the room. The legal teams clustered around two big oval wooden tables strewn with papers and glowing with laptops. A large screen on each table showed a close-up photo of the bombed-out car.

Eleven jurors (one has dropped out) sat in two rows on a raised platform off to the side of the room, close to the witness stand. The eight women and three men were all dressed conservatively in black and gray. They paid close attention to the entire proceedings, taking copious notes and carefully scrutinizing the exhibits presented to them.

Spectators sat on long wooden benches at the back of the room. The front row was reserved for reporters, who scribbled illegible notes in small notepads resting on their laps. Behind the press were Cherney's supporters, who wore beaded hair clips, dangling earrings, dreadlocks and brightly colored plastic glasses. Some slept, curled up against friends, perhaps tired from the long drive from their homes up north in redwood country.

Presiding over it all was U.S. District Judge Claudia Wilken. Grave and authoritative, she ran the proceedings with a sharp eye and an attentive ear. Thin-faced and bespectacled, she showed little emotion except when the plaintiffs' attorney, Robert Bloom, got carried away.

Portly and balding, clad in a dark gray suit and sporting a carefully trimmed beard, Bloom at first glance seemed a typical precise and efficient lawyer. However, when he turned to face the courtroom he revealed a lurid red and orange tie that belied his impetuous nature.

"It was a lie then, and it's a lie now," Bloom bellowed at the man he was cross-examining, Michael Sims, who headed up the investigation of the bombing for the Oakland Police Department.

"You're just making that up, aren't you?" Bloom said at another time, jabbing his finger at Sims. Between tirades he gulped from a thermos of coffee that stood next to his notes.

Belligerent and seemingly disorganized, he had a habit of following lines of questioning that seemed unrelated to the case. Wilken wearily kept chastising him, like an owner training an unruly puppy.

"Mr. Bloom, that's improper," Wilken said at one point, exasperated.

As Sims was detailing his investigation of the activities of Earth First! following the bombing, Bloom abruptly launched into hyperbole.

"Did you learn that Bari and Cherney were people who dedicated their lives to make sure that our trees were there, our food was there, our environment was there?" Bloom seemed to be trying to emulate the high drama of courtrooms in movies, but instead appeared melodramatic.

He undercut himself again when interrogating Sims about press conferences that the department held following the bombing. His purpose was, presumably, to suggest that the department was inappropriately trying Bari and Cherney in public. But Bloom played into Sims' -- and the defense's -- hands by getting personal.

"Do you like being in the spotlight?" Bloom asked -- so suddenly that the question seemed to come out of left field.

"Not particularly," Sims responded, seeming polite but also perplexed, as were some in the audience.

In contrast to Bloom, Sims was calm and matter-of-fact. He answered Bloom's questions carefully and deliberately.

As one of the nine officials charged with civil rights violations, it was imperative for him to appear conscientious and responsible. To an extent, he succeeded.

For example, when explaining how it came about that Bari and Cherney's house was searched, Sims told Bloom that he took the warrant to the judge "with the most critical eye." His reasoning was that if a judge who was known as a stickler approved the search, it would "stand up in future trials."

But Sims was less impressive when addressing matters pertaining to the crux of the case: whether police were justified in arresting Bari and Cherney.

Sims said he still believes that the two activists were aware of the pipe bomb that exploded in Bari's car as she was driving through Oakland (if it was their bomb, wouldn't they have put it in the far rear of the car as a precaution?). He also maintained that nails found in the bomb matched nails found at Bari's house -- even though this point has been largely debunked.

"At the time, we believed we had reasonable cause for their arrest," Sims said.

Sims said he was swayed by a variety of things, including a statement Cherney made during a "60 Minutes" television broadcast before the bombing that if he were diagnosed with a terminal disease, he would "strap dynamite on myself and blow up Glen Canyon Dam or the Maxxam building in Los Angeles after it closed at night."

Sims said that didn't sound like someone who was committed to nonviolent protest -- which is what Bari and Cherney claimed at the time.

A setback for the plaintiffs occurred when Judge Wilken ruled that Sims could testify about the discovery of an alleged "road-spiking kit" (used to disrupt travel on logging roads) in Cherney's van that was found during a search after the bombing. Cherney's lawyers had tried to block that out of fear it would strengthen the government's claim that Bari and Cherney were actively engaged in property destruction.

Sims said the arrests were made because of concern about safety.

"We developed reasonable cause to make the arrests because we were concerned about the danger to the community. The evidence was there and we consulted with the district attorney," he said.

Sims' testimony contradicted earlier testimony from two of his subordinates that the Oakland police department relied heavily on the FBI in conducting the car bombing investigation. That strengthens the contention of Cherney's legal team that the FBI took the lead in a fast-paced investigation that led to Bari and Cherney's arrest. But Sims painted a different picture. He said there was an agreement early on that police and not the FBI would lead the investigation into the bombing.


A break in the action

At the mid-morning break the Earth First! team of lawyers and paralegals huddled to compare notes and discuss strategy. They were goateed, ponytailed, a little rough around the edges. They appeared relaxed and calm, and they smiled and laughed together. Instead of using disposable water bottles, they sipped from reusable plastic containers. A spectator leaned over the barrier separating the audience from the participants, and handed one of them a ziplock bag filled with fresh strawberries.

Cherney stood up from the table, his wrinkled slacks harkening back to his unruly past. But the wrinkles were the only clue to his former hippie image: he was the epitome of clean-cut and conservative, with short gray-flecked hair, a navy blue jacket and a tasteful navy and beige tie. He seemed calm and confident.

Outside the courtroom, Cherney said "I think it's going exceedingly well. The courtroom is packed and there is a line outside. People recognize that this trial is a benchmark for this country's history."

Cherney said that while the trial has produced strong grassroots support, it has received relatively little attention from the mainstream media.

"The press is blacking this story out, for the most part. Stories about lefties barely make a blip in the papers. The implication [of the lack of coverage] is that it's more justifiable to go after progressives and environmentalists," he said.

He seemed indignant when asked about his radical appearance change. "This is the third time I've been like this," he said, implying that dressing in such a manner was fairly common for him. "My lawyer wanted me to keep the beard but this is me. People get new hairdos all the time," he added. "I'm a middle class Jewish kid from New York. I know how to dress for a bar mitzvah."

As if to prove his point, he went to a pay phone to order bagels for the post-trial gathering. Even his voice seemed to adopt a New York twang.

"Get bagels and schmears and smoked salmon definitely smoked salmon," he ordered a staffer.

"And avocado," Tofu gingerly added. Tofu, Cherney's bodyguard, was tall and thin and looked as gentle and lanky as a newborn calf. He had been at the trial for a week and said "it's been going very well." Cherney's other bodyguard, who hovered nearby, was a small man in a green tweed jacket named Catfish.


Contrasting styles

Now it was the defense's turn to question Sims. In comparison to the plaintiffs, they were considerably more polished and organized in their presentation.

And unlike the media-friendly Cherney team, these attorneys were tight-lipped and refused to speak to the press.

Maria Bee, attorney for the Oakland Police Department, was composed and cool in a tailored navy blue suit. Every so often as she questioned Sims, Bloom would call out "objection," but when asked by the judge to explain himself he frequently couldn't. Most of his objections were overruled, unlike Bee's objections to Bloom, which were repeatedly sustained.

Soon after 1:30, the scheduled ending time for the trial, Wilken cut in and excused the jurors, and the entire room stood as they solemnly filed out.

After a brief discussion with the judge the attorneys left in ways that typified their differences. The defendants swooped out, carrying big binders stacked with paper, ignoring everyone who approached them. The plaintiffs milled around for a long time, chatting and hugging friends, and then invited all the supporters to join them for bagels and "schmears."


Maya Smith is a freelance writer living in Berkeley.


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