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Judge disallows ‘dirty tricks’ testimony

By Hank Sims Special to the Daily Planet
Saturday September 01, 2001

A federal district court judge decided Friday that the lawsuit brought by two environmental activists against the FBI and the city of Oakland for false arrest will be decided on “narrow grounds.” Lawyers for Darryl Cherney and the estate of Judi Bari, Mendocino county Earth First! activists, will not be allowed to mention historical “dirty-tricks” campaigns conducted by the FBI. 

The trial is scheduled to begin Oct. 1.  

The plaintiffs will also be barred from using the FBI’s investigation of an Arizona Earth First! group as evidence that the Bureau was actively seeking to discredit the environmental activists and their movement. 

On May 24, 1990, a pipe bomb exploded in Bari’s car while she and Cherney were driving through downtown Oakland. The two were the principal organizers of “Redwood Summer” – a series of demonstrations against the logging industry in Mendocino and Humboldt counties. The Oakland Police Department initially charged Bari and Cherney with knowingly transporting the bomb, but the Alameda County District Attorney later dropped all charges. The person who placed the bomb in the car is still unknown. 

Judi Bari died of cancer in 1997. 

Ruling from the bench, Judge Claudia Wilken said that plaintiffs will not be able to use the FBI’s Counter-Intelligence Program (COINTELPRO) as evidence that a “pattern of practice” within the Bureau led to Bari and Cherney’s arrest. COINTELPRO was a secret FBI program to discredit social activists – including Martin Luther King Jr. and the Black Panther Party – in the 1960s and 1970s. 

The plaintiffs had hoped to call upon Howard Zinn, a popular historian and author of “A People’s History of the United States,” to testify during the trial as an expert witness on FBI history and practices. Wilken ruled that Zinn’s expertise on the FBI was limited to “books anyone can read,” and disallowed his testimony. 

Asked if the he could still conduct the case without referring to past FBI misdeeds, Dennis Cunningham, lead attorney for the activists, was confident. 

“It’s going to be tougher,” said Cunningham, “but the main thing is what (the defendants) did. They used false evidence, they vilified our clients in the press.” 

In another matter, Judge Wilken ruled for the plaintiffs by denying the scientific validity of a reconstruction of the bombing conducted by the U.S. Air Force. The Air Force report, which partially validated the Oakland police department’s initial arrest of the activists, was commissioned by the Justice Department, which is representing the FBI in the suit.  

“To me, it’s a big thing that we knocked out the Air Force test,” said Cunningham. 

There will be one more hearing, a pretrial conference on Sept. 1, before the trial begins. The plaintiffs are reportedly seeking $20 million in damages.