Singing under Oath
Oakland, California, May 7--Tuesday's court session in the case of Bari v. FBI was, as Earth First! plaintiff Darryl Cherney promised, "a humdinger." Twelve years after a bomb blast in the streets of Oakland, attorneys for Darryl Cherney and the late Judi Bari are suing the Oakland Police Department and the FBI for false arrest, illegal search, slander, conspiracy and violation of civil rights. After Cherney and Bari were injured in that 1990 assassination attempt, police and FBI agents arrested them and told the media that the activists had been injured by their own bomb.
The testimony began with Cherney's legal team, led by Dennis Cunningham, asking Cherney to recall the months leading up to the Redwood Summer campaign of 1989 and the car-bombing that derailed it.
An historic initiative was on California's November ballot that year. Proposition 130, "Forests Forever," would have mandated the legal protection of redwoods and other ancient forest treasures. The logging industry was pouring millions of dollars into the campaign to defeat the initiative but it enjoyed widespread popularity. "Everybody knew this was a historic moment. It was D-Day for the forests." Earth First! activists feared that timber interests would accelerate logging in old-growth forests prior to the vote. "We were slowly but surely building a mass movement," Cherney said. Clearcutting was destroying jobs. The only way to assure a future for timber workers was to replace corporate clearcutting with sustainable logging.
Some loggers, who had seen entire towns devastated by mill closings or mechanizaion, found that they agreed with Earth First!'s analysis. These workers began to join Bari for discussions over coffee. They dropped by her house to chat. And some of them eventually unionized, joining a local chapter of the Industrial Workers of the World (IWW) that Bari formed. One of the results of these meetings between loggers and lefties was a measure that would permit the county to seize the assets of the timber giant, Louisiana-Pacific, and institute sustainable forestry practices.
In the run-up to Redwood Summer, Bari made a major public speech renouncing tree spiking, which involves driving large nails into trees, and warning timber companies that their saws will be damaged if the trees are cut. Bari and Cherney were criticized by some in Earth First! who accused them of "selling out." Still, as Cherney observed, with thousands of young activists expected to spill into the state for several months of tree-sits, road-blockades and demonstrations, a public commitment to absolute nonviolence seemed the most responsible course of action.
Cunningham confronted his client with an embarrassing piece of evidence--Cherney's controversial appearance on a broadcast of 60 Minutes. In a 1990 interview, the 60 Minutes producer asked Cherney to imagine that he had a terminal illness and only weeks to live. What kind of protest action would Cherney consider undertaking? Confessing that he had become inebriated by the attention paid him by CBS' premiere TV news magazine, Cherney said he might strap dynamite to his body and blow up a dam. As soon as he said it, Cherney said, he realized he'd made a terrible mistake. He told the 60 Minutes crew that the statement was inappropriate and not representative of his or Earth First!'s tactics. Naturally, when the piece aired, Cherney's comment was featured prominently. "The logging industry picked up that ball and ran with it," Cherney testified. He was roundly criticized by many of his friends and "Judi never let me hear the end of it."
After April 10, Cherney remembered, they began to encounter "a barrage of death threats and intimidating communiqués." A picture of a noose was nailed to a post outside Cherney's home. The police declined to investigate.
On May 24, 1990, Bari and Cherney were headed to the Seeds of Peace house--an activist gathering place and support group in Oakland--prior to driving to Santa Cruz for another round of speeches, songs and fundraising. They were in Bari's Subaru following a friend's car through the streets of Oakland when Bari, fearing she'd started to make a wrong turn, hit the brakes. That activated a motion-triggered bomb beneath the driver's seat. "In the middle of a conversation," Cherney recalled as the jury room went deathly quiet, "there was a crack!" Cherney found himself stunned and confused, wondering: "Had we been hit by another car? Were we hit by a train? Had I been shot?" With both eardrums punctured and one eye bleeding and filled with shattered glass, Cherney saw two kids "running toward the car, waving their hands and yelling 'It's a bomb! It's a bomb!' Someone finally tried to make good on a death threat." Cherney recounted how he started to look around the car. He heard Bari moaning and crying out, "My back hurts!" As police and paramedics converged on the scene, Cherney told Bari, "I love you. You're going to live." As he staggered from the wreckage, he thought it important to start yelling to spectators gathered nearby, "We're Earth First! organizers. Someone just tried to kill us."
Cherney was spirited into an ambulance and taken to a hospital bed where a doctor removed the glass from his eye and stitched him up. That's when "two men in suits walked up to the side of my bed," Cherney told the court. They were with the FBI. "They asked me, 'Who could have done this?'" Cherney suggested a list of timber company officials and North Coast rightwing extremists. To Cherney's horror, the FBI response was "We can tell this is your bomb. Why not confess and get it over with?" Up to this point Cherney had thought the bombing would finally vindicate his claim that he and Bari had been seriously at risk from the death threats they received. "I realized," said Cherney, "that the FBI was going to try and frame us."
When Cunningham asked Cherney about his knowledge of the FBI's history of framing dissidents, the government's lawyers jumped to full attention and loudly objected. Judge Claudia Wilken ordered Cunningham to not pursue the question.
Cherney was taken from the hospital and moved to a "smoke-filled room, complete with a single light bulb." He was left locked in the room for six hours. Cherney asked to speak to a lawyer. The agents told him that they would toss him in jail if he insisted on talking to a lawyer "but if I spoke to them and waived my rights, they might let me go free." During his detention, one Oakland Police Department (OPD) investigator told Cherney: "You know, you just don't fit the profile of a bomber." Cherney repeatedly complained to the investigators "Why don't you ask me about the death threat?"
The OPD and FBI told reporters that the two activists had been arrested and charged with carrying an explosive device. The clear implication was that their own bomb had blown them up. "I've never lit a firecracker in my life," Cherney told the jury. The government's accusations coincided with the FBI's well-publicized search for the mysterious Unabomber. Ted Kaczynski had targeted timber company officials and had just published a long, rambling manifesto attacking industrial society. Wounded and incarcerated, Bari and Cherney were unable to defend themselves in the press. For several critical days, the FBI and the police were the major source of information on the bombing. "The press reports always quoted the police statements first," Cherney noted. Previously sympathetic reporters "wrote things the police told them that were untrue. It was very hurtful."
The effect on Redwood Summer was devastating. Instead of mobilizing volunteers in scores of cities, Cherney and Bari were immobilized in Oakland. Cherney recalled those days. "I was hiding, fearful for my life, my head ringing for two months, relying on bodyguards." Strangers would confront him in public and scream death threats in his face. Less intimidating, but certainly unnerving, were those who slipped up behind him and suddenly yelled, "Boom!" Media coverage was never the same. The press had been sympathetic to the campaign to defend the state's old-growth forests. Now, Cherney said, "coverage shifted from the environmental reporters to police-beat reporters."
"It wasn't what we planned for Redwood Summer," Cherney recalled ruefully. The bombing accusations drove away potential supporters. Cherney was quietly advised to avoid the Forests Forever initiative campaign. Anti-logging demonstrations begin to draw an increased police presence. Cunningham asked Cherney if the false publicity surrounding the bombing had damaged the campaign for Redwood Summer. "One can never know what Redwood Summer might have been had we not been bombed," Cherney replied.
A legal squabble broke out over the plaintiff's plan to show the jurors a seven-minute videotape of Cherney and Bari organizing for Redwood Summer. Judge Wilken allowed the video to be screened. It clearly showed that Bari's style was down-to-earth and nonadversarial. Talking to mill workers, who were being forced to work more than 50 hours a week, Bari told them that they were not only milling timber, "You're milling your children's future. And it's not your fault. You don't have control over this any more than I have control over the fact that I spent the last summer installing PALCO redwood on the side of a rich man's summer mansion." In the tape, Bari condemned the Louisiana-Pacific CEO Harry Merlo's stated goal of "loggrng to infinity." "We're not here to protest against loggers." Bari said.
Like the FBI and police investigators before them, the government lawyers attempted to find evidence to incriminate Cherney. The government lawyers mentioned that a bag of rebar--soft metal rods used to reinforce concrete--had been found in the van. Cherney said that he could not conceive any way in which a foot-long piece of rebar could be used to spike a tree. Cunningham asked about a box that had drawn the special attention of the police and FBI agents as they inspected the vehicle. Cherney explained that the box contained tapes of his songs. When Cunningham attempted to elicit information about what had happened to this box, a strenuous objection from the FBI's lawyers prompted Judge Wilken to ban further questions. (The jury never learned that the FBI had removed the box, placed it on the street and, apparently fearing it contained explosives, blew it up.)
Asked about the FBI's failure to pursue, let alone identify, the perpetrator of the bombing, Cherney said, "There's still a bomber out there who tried to kill us It feels like...a green light to try again. It felt like they were encouraging violence against us without any fear of police."
As Assistant US Attorney Joseph Sher, the government's lead attorney, approached the microphone to begin his cross-examination, Cherney got off the first words. "Good morning, Mr. Sher," he said. "We meet again." Sher's strategy was to discredit the activist by tarring him with the terrorist brush.
He confronted Cherney with a series of out-of-context quotes from news stories and interviews he and Bari had given more than ten years ago. Sher tried and failed to establish that Cherney had organized sabotage workshops at a series of Earth First! encampments. (Cherney helped to organize the encampments but never participated in any such workshops.) Sher abandoned that line of investigation after 15 minutes.
Sher's best moment came when he confronted Cherney with the illustrations on two of his song albums. He asked Cherney to describe the cover art for "They Don't Make Hippies Like They Used To." Cherney calmly explained that it portrayed a burning bulldozer and, walking away from it, two characters who resembled Bari and himself brandishing a monkeywrench and a gas can. Cherney pointed out that the cover was a cartoon, meant to shock and to cause debate. He noted that there had never been such an incident in the area where he and Bari worked.
Sher's last piece of "impeachment evidence" was an album cover that showed, in Sher's ominous words, "the toppling of a power tower." Cherney's response was delivered with a smile. "By a beaver," he pointed out. The comment brought a swirl of laughter from the audience. Once again, Cherney insisted, this was a cartoon. It was intended to make people think. The beaver has just lost his habitat to the powerlines, Cherney pointed out. Sher then tried to incriminate Cherney by citing a litany of song titles from his albums. Among them were "This Monkeywrench of Mine," "Ballad of the Lone Tree-Spiker," and "Spike a Tree for Jesus."
Sher would rue the moment he entered these song titles into the court record. Cunningham asked Cherney if he would be interested in singing a song from one of his albums. Chemey smiled slightly and admitted that he would love to. Sher was apoplectic. "Your Honor, do we really have to do this?" Judge Wilken reminded him that it was the defense team that introduced the song titles into the record. Cherney was asked to select a song.
Reaching behind his chair, Cherney grabbed his guitar. He strapped it on over his business suit and, still sitting in the witness chair, began to tune the strings. Cherney hunched over, started picking out a rhythm line on the strings and launched into a rendition of "Spike a Tree for Jesus." It seemed a strange choice, in that it criticized a logger who can't bother himself about the fact that the tree he cuts is used to make the cross on which Christ is crucified. And it also implied Jesus' endorsement of tree-spiking.
The last ten minutes of the day centered on a videotape that Bari and her lawyers recorded several weeks before she died of cancer. Except for the fact that she was sitting quietly, secure in a well-cushioned chair, it was not immediately apparent that cancer was ravaging her body. Her voice was strong, her smile clear. She recalled for the record the moment when the bomb exploded beneath her. "It was a very huge explosion. I felt it rip through me." She spoke of the incredible pain, unlike anything she had ever experienced. She remembered lying in the bombed car, stunned and crying, "I'm dying! I'm dying! My back is broken." She related hearing Cherney telling her, "I love you. You're going to live." On the tape, an off screen voice yelled, "Objection!" Bari tries again to repeat Cherney's words of comfort. Again, the objection. Undaunted, Bari made it very clear that she would repeat those words for the record. And she did.
Jury awards Bari and Cherney $4.4 million:
Oakland, CA, June 11-The jury in Bari v. FBI has awarded plaintiffs $4.4 million for violation of the activists' constitutional rights and returned a verdict largely in favor of Earth First! activists Darryl Cherney and the late Judi Bari. The jury found that six of the seven defendants violated Bari and Cherney's First and Fourth Amendment rights by arresting the activists, conducting searches of their homes, and carrying out a smear campaign in the press, calling Earth First! a terrorist organization and calling the activists bombers in the aftermath of the explosion of a bomb that was planted in Bari's car in 1990. This verdict vindicates Bari and Cherney.
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