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Judge considers lifting
gag order off federal jury 

Attorneys for EarthFirst! activists Darryl Cherney and the late Judi Bari said at a federal court hearing Friday they would consider dropping unresolved charges against the FBI and the Oakland Police Department to expedite the filing of a judgment in the case.  

On June 12 jurors awarded the two activists $4.4 million for violations of First and Fourth Amendment rights by members of the FBI and OPD relating to the investigation of a car bombing that injured Cherney and Bari in 1990. The judgment, however, has not been entered into the court because jurors were undecided on several charges. 

The issue of a gag order placed on the jury by federal Judge Claudia Wilken was not resolved on Friday, though Wilken says she will consider reforming the order.  

Attorneys for the activists plan to file a motion of dismissal without prejudice on Monday relating to charges of Cherney’s false arrest after the bombing in 1990. The motion would pave the way for the appeals process to start but would not eliminate the plaintiff’s ability to revive the false arrest charges at a later date. 

Appeals are expected from both sides in the case but cannot be filed until a judgment is entered into court.  

Appeals are expected from both sides in the case but cannot be filed until a judgment is entered into court. According to Robert Bloom, a member of the plaintiff’s legal team, if the motion goes through on Monday, the judgment could be finalized a month from now. 

“It’s been 12 years now. We’d really like to see this get resolved,” Bloom said to Wilken at Friday’s hearing. 

Though the plaintiffs in the case had considered requesting a new trial for the unresolved charges, Wilken on Friday informed the court that she would not preside over a new trial until September 2003 due to prior scheduling commitments.  

Rather than wait, the plaintiffs will pursue a dismissal and said that attorneys for the defense may try to stall proceedings.  

After the hearing, Bloom touted as a delaying tactic FBI lead counsel Robert Sher’s requests to wait for court transcripts before replying to a potential motion from the plaintiffs. Sher said in court that the defense would not file an appeal until Sept. 1. 

“He wants to stall,” Bloom said. “They (the defense) want to do anything that prevents entry of a judgment. They’ll be stalling until the next century.”  

In court Sher argued that the transcripts would be essential to future proceedings. Sher said that he could not speed up responses to motions from the plaintiffs due to prior commitments. Wilken gave the defense two weeks to respond to a potential motion of dismissal from the plaintiffs, and said the defense’s timeline for issuing an appeal was not unreasonable. 

Options are being weighed by both sides. According to Cherney, the defense could offer to settle the case in exchange for an agreement not to bring the false arrest charges to a new trial. Or, more likely, each side will appeal charges and possibly proceed with a new trial once the appeals are settled. 

“There aren’t any real grounds for the defense to appeal although they have every right to and they probably will,” said Dennis Cunningham, lead counsel for the plaintiffs. “The notion though that they want to take three months before they appeal is ridiculous.” 

The plaintiffs want to keep pressure on the FBI and to shed light on what they consider extremely suspect practices of the federal bureau.  

Regarding the jury gag order, Wilken says reform may be an option. Lisa Sitkin, an attorney representing the Oakland Tribune and San Francisco Chronicle, argued that the current order was limiting. “There really should be no limit on what the jurors should be able to talk to the press about,” said Sitkin, speaking to Wilken in court. 

Wilken issued the order on June 12 to prevent jurors from speaking to the press about the trial because, as she said, such communication would interfere with pending issues in the case. 

Cunningham said the plaintiffs are in favor of lifting the gag order, though they did not file a motion to have the order lifted. Maria Bee, an attorney representing the defendants from the OPD, said she believed Wilken’s ruling should stand.