Jurors in the federal Earth First! versus FBI and Oakland Police Department case did not report a verdict Tuesday as many had expected.
Instead jurors in the controversial trial in which the prosecution says the FBI and OPD mishandled a 1990 car bombing investigation asked Judge Claudia Wilken questions, and for more time for deliberation. The jury started deliberations two weeks ago.
One hypothetical question jurors asked: What would happen if the jury was undecided about the defendant accused of framing and abusing the civil rights of environmental activists Judi Bari and Darryl Cherney.
Wilken told jurors that if a decision could not be made for a defendant, a new trial would determine that defendant’s fate. However, Wilken said, a decision of not guilty for one defendant would not result in a new trial.
To aid the jurors, Wilken allowed them to use a new verdict form that includes a check box for an undecided status next to the names of each defendant. After the jurors left Wilken emphasized that she wanted a verdict, not a hung jury.
Jurors on Tuesday presented their schedules to the judge. Deliberation time will run until Friday.
The jurors must decide whether or not the defendants violated the First Amendment rights of plaintiff Bari and Cherney through false arrest and unlawful search, and whether there was a conspiracy on the part of law enforcement to violate these rights.
The jury in the case faces a complex task requiring up to 167 separate unanimous decisions to decide all claims in favor of Bari and Cherney and award them damages.
Cherney and Bari were injured when a bomb exploded in their car while they were driving in Oakland in May 1990. Bari, who was at the wheel, suffered a crushed pelvis and Cherney received cuts from the blast.
The two were arrested within hours, but no one was ever charged.
Cherney and Bari sued investigators, alleging false arrest, illegal search, slanderous statements and conspiracy.
The FBI and Oakland police maintain they conducted a thorough and reasonable investigation.
But two of the three Oakland police officers named in the suit filed by Cherney and Bari say they were heavily influenced by FBI agents who came to the scene of the 1990 bombing and told them the two victims were tied to domestic terrorism. FBI agents, meanwhile, maintain it was Oakland police who pushed for the swift arrests.
Lawyers for Earth First!, including lead counsel Dennis Cunningham, have said that the long deliberation period is a good sign. The jury could have decided very quickly to find the defendants not guilty but a guilty decision requires more time and effort, lawyers said.
According to J. Tony Serra, a member of the plaintiff’s legal team, 12 days is the longest jury deliberation he recalls among the estimated 800 jury trials in which he has taken part.
During the deliberation period jurors requested copies of the First and Fourth Amendments to the U.S. Constitution to clarify accusations of false arrest, unlawful search, and conspiracy to interfere with free speech made against the defendants.
Lawyers for the FBI and OPD objected to the jury’s request but Wilken overruled them.
Jurors also asked questions about probable cause for arrest, and whether the arrested parties should have been released. After hearing arguments from both sides, Wilken decided to tell the jurors to rely on written instructions already given.
At one point during the deliberation period the defendants’ lawyers tried to have the case thrown out, claiming that lawyers for Bari and Cherney illegally influenced the jury with remarks made while jurors were present outside the courthouse.
- The Associated Press contributed to this story.