Charges against two FBI special agents were dropped Wednesday in the Earth First v. FBI and Oakland Police Department trial in an attempt to narrow the scope of the case accusing the FBI and OPD of mishandling the 1990 car bombing of environmental activists Judi Bari and Darryl Cherney.
Judge Claudia Wilken ruled that charges against FBI Special Agents Walter Hemje and John Conway would not be considered by the jury, expected to begin deliberations on Monday. Wilken claimed the agents acted on the periphery of the case and were not critical members of the investigation.
Attorneys in the case wrangled long into the afternoon over courtroom technicalities, including the wording of jury instructions, proposed dismissal of defendants and the admission of evidence. Closing arguments were postponed by Wilken until Thursday.
Attorneys disputed the wording of instructions for the jury regarding several key issues in the case including probable cause and qualified immunity.
Defense attorney Robert Sher disputed the language of probable cause, maintaining that the defendants acted legally in devising search warrants during the investigation.
Sher argued that the wording involving the defendant’s search of the residences of Bari and Cherney was incorrect and misleading. Sher objected to the plaintiffs’ proposal that the wording of the instructions should indicate that the defendants investigated the residences in 'good faith,' stating that the defendants were not obligated to act in 'good faith.'
“This argument is shocking, that they (the defendants) can act without good faith,” said Dennis Cunningham, lead counsel for the plaintiffs, as the attorneys disputed the language.
The actions and judgments of the defendants in developing the search warrant is a critical piece of the plaintiff's case accusing the FBI agents and OPD officers of violating the civil rights of Bari, Cherney and their supporters.
Counsel for Oakland police argued that the issue of a high bail should not be allowed as evidence in the case, indicating that issuing a high bail is not a violation and claiming that it was no longer an issue in the case. Wilken, however, determined that the issue would stay.
Cunningham objected to the language of the defendant’s qualified immunity in the case. Specifically, he disputed the wording of instructions concerning “whether the defendant is liable if another reasonable officer had determined probable cause existed.”
The wording of the statement was modified to “liable if he believed his conduct was lawful under the circumstances,” despite continued objections by Cunningham, claiming, “We're getting smeared here. We're getting wiped out on the question of qualified immunity.”
Defendants in the case have maintained that their actions in the case were the result of decisions made to the best of their ability considering the constraint of time.
Following Cunningham’s continued disputes on the point, Wilken threatened to waive the plaintiffs remaining objections.
Attorneys for both sides also questioned language on the topic of search and seizure and the issue of conspiracy in the case.
An “eco-defense” book was not admitted as evidence in the trial as defendants had hoped, as attorneys for the plaintiffs argued that the book represented an unfair connection between the Earth First! movement and environmental terrorism.
Attorneys for the plaintiffs initially decided not to include nominal damage instructions to the jury, allowing for the possibility that the plaintiffs would not be awarded attorney fees. After some disagreement among the plaintiffs, Wilken ruled that she would include the instructions for the jury.
Wilken also ruled Wednesday that newspapers and fliers were not to be left in sight of jurors as news of the trial would influence the members of the jury.
Closing arguments, delayed by the last-minute maneuvering on each side, will begin Thursday with the presentation of the plaintiff’s arguments. Defendants will present their closing arguments Friday, followed by a rebuttal from the plaintiffs and jury instructions given by Wilken.