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A hearing to discuss the removal of a federal judge’s gag order placed on the jury in the Bari vs. FBI case has been set for next Friday. Attorneys from the San Francisco Chronicle and the Oakland Tribune claim that Judge Claudia Wilken’s June 11 gag order was unreasonable and violated the First Amendment of the Constitution. 

The order bans jurors from speaking to the press about what happened during 17 days of the civil case’s deliberations. In the end, the jury decided police and FBI mishandled a car bombing investigation in 1990 and awarded the plaintiffs $4.4 million in damages. 

Wilken also told jurors that day that they could not talk to attorneys from either side until all appeals are settled. So far, no appeals have been filed. 

Lawyers and members of the media claim that Wilken’s ruling is unreasonable because it could take several years to settle any appeals.  

A lawyer representing both the Oakland Tribune and San Francisco Chronicle said Wilken’s ruling is unfair, and almost unprecedented. “The order is an unconstitutional restraint on the speech of the jurors and the press’ ability to provide the public with a description of the jurors thoughts,” said Roger Myers of Seinhart & Falconer. 

Myers said in the firm’s 30 years of representing the media, one case resulted in a jury gag order. He pointed to a Contra Costa County case several years ago in which a similar jury gag order was thrown out. 

If no one opposes lifting the gag order, jurors could be allowed to comment on the case immediately after Friday’s hearing. Neither side in the case has indicated a reluctance to see the order lifted. 

Speaking with jury members is “an equal opportunity piece of information for everyone,” said Darryl Cherney, an environmental activists who with Judi Bari was a plaintiff. 

According to Cherney, communication with the jurors will help attorneys for the plaintiffs and defendants as they begin thinking about a new jury trial. 

“This is illogical,” he said. “It’s just Judge Wilken raining on our parade. We don’t have to be that concerned about this, it’s not a Mafia trial.”  

According to Mario Dianda, Editor of the Oakland Tribune, Wilken has made an unreasonable ruling in issuing the gag order especially since a new jury will be used if there is a new trial.  

“We want to talk to the jurors and feel that it is unusual that Judge Wilken has ruled not to allow them to speak,” Dianda said. “This is something that is standard practice. Our readers want to know what was going through the mind’s of the jury and why they ruled the way they did.” 

This is the first case Dianda has encountered in which a jury was not allowed to comment on its deliberations.  

The June 28 hearing will also provide attorneys for the plaintiffs and defendants with a forum to discuss a new trial date. A new trial would evaluate Cherney’s claim of false arrest against three FBI agents and two Oakland police officers, a claim the jury could not reach a decision on in the previous trial. 

Attorneys for both sides are expected to file appeals. However, because Wilken has not entered the verdict into the court record, all appeals are currently frozen.  

Despite this freeze, the possibility of a new trial presents a number of advantages for the plaintiffs. According to Cherney, a new trial would keep continued pressure on the FBI and could result in additional financial compensation. 

Cherney says that the plaintiffs want to request a new trial immediately to get the ball rolling. From that point, attorneys for the plaintiffs are hoping to present additional information regarding claims of FBI conspiracy, including the FBI’s counter-intelligence programs, in the new trial. 

Cherney adds that regardless of the outcome of a new trial, the plaintiffs will keep the $4.4 million.  

Special Agent Andrew J. Black, a spokesperson for San Francisco’s FBI office, would not comment on the case.  

The hearings are scheduled 10 a.m. June 28 at the Federal Courthouse, Oakland. 

Contact reporter at chris@berkeleydailyplanet.net