Official Judi Bari Web Site of the Redwood Summer Justice Project

A hearing on this motion is set for 10:30 a.m. August 1, 1997 in Federal District Court, Oakland, California.

Attorney Dennis Cunningham's statement announcing filing of this motion with over 400 pages of overwhelming evidence of FBI wrongdoing. This is a powerful statement of crimes the FBI is accused of.

Dedication Page, with great photo of Judi Bari giving raised fist salute in front of Oakland Federal Building

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I. INTRODUCTION: A MOTION FOR CERTIFICATION BY THE COURT THAT NO QUALIFIED IMMUNITY EXISTS FOR ANY DEFENDANT IN THIS CASE.

II. THE CHARGES AGAINST THE DEFENDANTS: ILLEGAL ATTACK ON POLITICAL RIGHTS, FALSE ARREST, ILLEGAL SEARCH, DENIAL OF EQUAL PROTECTION, AND CONSPIRACY, IN VIOLATION OF CLEARLY ESTABLISHED RIGHTS
A. Summary of the Counts and Elements
B. Plaintiffs' Burden: Putting the Facts in Issue

III. PLAINTIFFS"'FACT­SPECIFIC" NARRATIVE OF THE EVENTS IN QUESTION, AND THE CONDUCT COMPLAINED OF, AS SHOWN BY THE EVIDENCE AFTER 'PRELIMINARY' DISCOVERY.

1. Background of the Attack on Plaintiffs.
2. The Bomb Explosion and the Plaintiffs' Arrest.
3. Defendants' Lie about the Location of the Bomb.
4. Defendants' Lies About Matching Nails.
5. Defendants' Lie that Plaintiffs Were Terrorists.
6. COINTELPRO in the 90s.
7. Defendants' Lies About the Purported Informant's Tip.
7­A. Status of the Tip Evidence.
8. Oakland Embraces the Big Lie.
9. FBI Manipulation of the Physical Evidence Begins.
10. The Cloverdale Bomb.
11. The Letter From "The Lord's Avenger".
12. The Evidence Goes to the FBI Lab, But Not All Of It.
13. The Expert Makes A Personal Inspection of the Car.
14. The Second Falsified Search Warrant.
15. Oakland Drops The Case; The FBI Doesn't.
16. The Sham Investigation.
17. The FBI Let the Assassins Go Free.

IV. MATERIAL QUESTIONS OF FACT RAISED BY THE VIOLATIONS AND CONSPIRAC(IES) ALLEGED IN THE AMENDED COMPLAINT, AND PLACED IN DISPUTE BY PLAINTIFFS' EVIDENCE.

V. CONCLUSION

VERIFICATION / CERTIFICATE OF SERVICE
APPENDIX....

NOTE: This brief is being widely circulated in hopes that public attention to this evidence will cause public action to bring the FBI to account for the crimes and offenses against law and the Bill of Rights ­­­ and Truth, Justice and Free Democratic Government ­­­ which are recounted in it. The expense of prosecuting such a case is great, and unremitting; printed copies of the brief cost at least $40.00 apiece. If you need a printed copy, if possible, please pay for your copy, or send what you can, to:
Redwood Justice Fund
P.O. Box 14720,
Santa Rosa, CA 95402

(c) 1997 Redwood Justice Fund

I. INTRODUCTION: A MOTION FOR CERTIFICATION BY THE COURT THAT NO QUALIFIED IMMUNITY EXISTS FOR ANY DEFENDANT IN THIS CASE.

PLAINTIFFS JUDI BARI AND DARRYL CHERNEY allege they were falsely arrested by the Oakland Police, at the illegal, politically-motivated instigation of the FBI, for alleged possession and transportation of a bomb which blew up in their car and almost killed them. In fact, the bombing was a clear, carefully designed attempt to silence Judi Bari, a leader of activist protest against destruction of the forest environment and local human communities by corporate logging powers in northern California, and to discredit, disrupt and intimidate the Earth First! movement she and Darryl were part of.

The reality of this criminal---terrorist---attack, and the political motives behind it, has been ignored and debunked by the defendant state and federal police authorities since the beginning, in furtherance of their unlawful conspiracy to "neutralize" Earth First! Their anti-Constitutional plotting produced an outrageous false arrest, and a sham investigation, which they used as cover for more political foul play. Meanwhile, their cynical indifference to the brazen attempted political assassination of Judi has allowed the would-be murderers to go free. It is impossible, and ludicrous to suggest, that reasonable officers of the law, knowing what this evidence shows these men knew or should have known, could have believed their actions were lawful.

After substantial (but still incomplete) discovery on questions of defendants' conduct, plaintiffs now move for certification by the Court that no defendant is entitled to Qualified Immunity in this case, on any count of the complaint in which he is charged. The basis for the requested determination is the existence, established below, of substantial, competent, admissible evidence to support every element of every cause of action, against every defendant. Such evidence would preclude summary judgment for any defendant on any count---regardless of what claims they might raise to the contrary---by showing there are triable issues of material fact regarding the legal responsibility of each defendant for causing the violations alleged. Further, it would show the non-availability of interlocutory appeal, under Mitchell vs. Forsyth, Johnson v. Jones, and Behrens v. Pelletier, and entitle plaintiffs to go forward (to complete discovery and) to trial. See Collins v. Jordan, __ F.3d __, (9th Cir. 1996)(No. 95-15737, 12/4/96).

Plaintiffs make this motion hoping to overcome both the strategy and reality of delay, which have dogged this case throughout. It is appropriate because defendants' claims of qualified immunity raise the same question, regardless of which side brings it up: Can the plaintiffs make out a prima facie case of violation of clearly established rights? Does the evidence create triable issues of fact as to each element of each violation against each defendant charged? Would plaintiffs' evidence, if believed, support judgment in their favor on each count?

If the answer is Yes, plaintiffs are entitled to adjudication of the immunity claims against the defendants (Note 1); if the answer is No---or, where the answer is No, because the evidence on some element of some count against some defendant is found wanting---qualified immunity should be awarded, and any affected claim or defendant should be dismissed.

But the answer is Yes throughout, as we will show.

Plaintiffs assert that the rights violated by defendants were "clearly established" at the time of the events in question, and rely on the previous decision of the Court of Appeals for that premise, and other precedent.(Note 2) This brief in support of the motion consists of a statement and analysis of the counts implicating all defendants and the elements thereof, a narrative of the evidentiary facts, and a recapitulation of the material issues arising from the evidence. We believe this statement of the case as it now stands, and these exhibits, will make clear the plaintiffs' right to proceed promptly to trial on all counts of their complaint, against all defendants.

II. THE CHARGES AGAINST THE DEFENDANTS: ILLEGAL ATTACK ON POLITICAL RIGHTS, FALSE ARREST, ILLEGAL SEARCH, DENIAL OF EQUAL PROTECTION, AND CONSPIRACY, IN VIOLATION OF CLEARLY ESTABLISHED RIGHTS

A. Summary of the Counts and Elements

As described below, the actions of the defendant FBI agents in seeking to "neutralize" the plaintiffs and Earth First!, aided and abetted by the Oakland defendants with the sensational false arrest and false charges, were an illegal assault on the plaintiffs as political activists, protesters, dissidents in America, by federal and state police authorities. Such an attack, in the words of our Court of Appeals, "strikes at the heart of the First Amendment".

The Elements of the First Amendment claim are that plaintiffs were engaged in constitutionally protected activities; that defendants took action under color of law which disrupted those activities and infringed the plaintiffs' right to engage in them; that defendants had no compelling reason, rational governmental interest or other lawful justification for the actions they took (and could not reasonably have believed they did have); and that plaintiffs suffered a loss of rights or other injury from defendants' conduct.

Defendants' wrongful actions included gross Fourth Amendment violations also, by way of the false arrest of plaintiffs, and the searches of their homes on falsified warrants. On the Fourth Amendment claims, the Elements are that defendants had no probable cause for the arrest of plaintiffs, and could not reasonably have believed they did have cause (Note 3); and that they falsified crucial factual information contained in the warrant affidavits, without which probable cause to issue the warrants would not have been stated (within the rule of Franks v. Delaware)(Note 4), and made searches against plaintiffs for which they knew no probable cause existed.

Further, by failing to make any good faith attempt to catch the people who tried to murder the plaintiffs---or Judi at least---they denied plaintiffs Equal Protection of the Laws, in violation of the Fourteenth Amendment.(Note 5) Here the elements are that defendants had a shared animus against plaintiffs, because of their association with a protest movement, or movements, and active exercise of protected liberties; and that from that animus, with deliberate indifference to plaintiffs' (clearly established) rights, they failed and refused to take reasonable steps to catch the people who tried to kill the plaintiffs with a bomb. (Note 6)

Finally, the defendants' acts and omissions arose from an Unlawful Conspiracy---evidently played out in a series of sub-conspiracies---to violate the plaintiffs' Clearly Established fundamental Free Speech rights, and Search and Seizure rights, to deny them the Privileges and Immunities of Citizenship, and Equal Protection of the Laws, and to Obstruct Justice. Defendants reached a Meeting of the Minds---or a series of them---to cause and carry out these deprivations, and took concrete steps ("overt acts") in furtherance of the plan; and plaintiffs suffered loss of rights or other injury as a result of the actions taken (or not taken). (Note 7)

B. Plaintiffs' Burden: Putting the Facts in Issue

In particular, the evidence will establish that there are material issues of fact in dispute as to plaintiffs' allegations that:

1. Defendants intended to interfere with, disrupt, discredit, "or otherwise neutralize" the constitutionally protected beliefs and activities of the plaintiffs, and Earth First!, and seized on the bombing as a means to that end by way of a sensational false arrest and bogus investigation, in violation of the First Amendment (Held, Mewborn, Appel, Reikes, Doyle, Sena, Buck, Conway, Hemje, McKinley of the FBI; Hahn, Sims, Sitterud, and Chenault of Oakland (Note 8));

2. Defendants had no probable cause for the arrest of plaintiffs, and could not reasonably have believed that they did have cause, in violation of the Fourth Amendment (Reikes, Doyle, Sena, Buck, Webb, Sims, Sitterud, Chenault);

3. Defendants knowingly and materially deceived the magistrate as to the existence of probable cause in swearing out the search warrants, in violation of the Fourth Amendment (Reikes, Doyle, Sena, Sims, Sitterud, Chenault);

4. Defendants formed a conspiracy to engineer the false arrest and maintain the false charges, in order to smear plaintiffs and Earth First!, despite knowing they had no reasonable grounds to suspect plaintiffs were guilty of any bomb offense; they agreed further they would make no effort to catch the real bombers, when in fact they knew or should have known that plaintiffs were bombing victims, and should have acted in good faith to solve the crime (Held, Mewborn, Reikes, Doyle, Sena, Buck, Webb, Conway, Hemje, Sims, Sitterud, Chenault);

5. This original meeting of the minds gave way to a larger, long-term agreement to keep up the public pretext that plaintiffs were legitimate bombing suspects, to illicitly surveil, gather political intelligence against, discredit and sow disruption in the Earth First! movement, and to cover-up their own unconstitutional actions in fomenting the arrest and the ongoing smear (Held, Appel, Mewborn, Reikes, Doyle, Sena, Conway, Buck, Hemje, McKinley);

6. The combined earlier and later conspirac(ies), in turn, arose from an impermissible animus, also amounting to a Meeting of the Minds in support of illegal, unconstitutional action and failure to act, which pre-existed the bombing, and conditioned and prompted the FBI defendants to seize on the bombing as a vehicle for an attack on the plaintiffs' rights (Held, Appel, Mewborn, Reikes, Webb, Doyle, Sena, Conway, Hemje, McKinley). This animus was adopted by the Oakland detectives, Sims, Sitterud and Chenault, and ratified by Hahn (and the City). Thus the whole group also invidiously deprived the plaintiffs of Privileges and Immunities, by going after them, and denied them Equal Protection by failing to enforce the law in their behalf, all out of animus, in violation of the Fourteenth Amendment.

7. The defendants who were supervisors, Held, Appel, Mewborn, Reikes and Webb for the FBI, and Hahn and Sims for Oakland, were all personally involved in permitting, encouraging, ratifying or otherwise helping cause the wrongful actions complained of, as actors and conspirators, making each of them jointly liable under the legal rules which apply to supervisors;

8. The plaintiffs and the Earth First! cause were injured, suffered loss, by some or all of defendants' wrongful actions.

III. PLAINTIFFS' "FACT-SPECIFIC" NARRATIVE OF THE EVENTS IN QUESTION, AND THE CONDUCT COMPLAINED OF, AS SHOWN BY THE EVIDENCE AFTER 'PRELIMINARY' DISCOVERY. (Note 9)

1. Background of the Attack on Plaintiffs.

This case began when persons still unknown tried to murder Judi Bari, a gifted and highly successful organizer for Earth First!, involved in lively and productive organizing work against corporate logging powers in northern California, by planting a sophisticated bomb in her car. Hidden under the driver's seat and rigged to detonate in response to the motion of the car, the device exploded on May 24, 1990, in the wake of a frightening series of threats against Judi, including death threats, in writing, brought on by her outspoken leadership in a growing and increasingly contentious protest movement. Her colleague and co-plaintiff, Darryl Cherney, also a working spokesman for Earth First! at the time, was riding in the front passenger seat, shielded from the direct force of the blast and only slightly injured.

The bombing came in the midst of the final organizing drive by Earth First! for "Redwood Summer", a program of non-violent direct action against clear-cutting, liquidation of old-growth redwoods, and other environmentally and socially destructive corporate logging practices. Like the Mississippi Summer Project of the 60s it was modeled after, Redwood Summer was conceived and promoted as an exercise in strict, principled Non-violence, for which Earth First! hoped to draw numbers of students and activists to the North Coast from around the country during the summer months. Judi and Darryl were both working full time on organizing and promoting Redwood Summer, and they and others constantly proclaimed the commitment to Non-violence; in particular, they held a public press conference at which they definitively denounced and renounced the practice of "tree-spiking", for which Earth First! had been somewhat notorious in its early days.

Earth First! organizers, including plaintiffs, had been engaged in protesting and other non-violent organizing activities on behalf of the redwoods and the environment in the region for several years before Redwood Summer was announced. In the course of those activities, plaintiffs had often witnessed and personally experienced heavy antagonism and intimidation from people connected or aligned with timber interests. Sheriffs' deputies and local police in Mendocino and Humboldt Counties repeatedly sided with logging company officials and employees against plaintiffs and other protesters at the scenes of demonstrations, and looked the other way in instances of violence and intimidation of protesters by these adversaries.

This pattern intensified after about March 1, 1990, when Redwood Summer was announced. In particular, Earth First! organizers received a series of frightening death threats, with several particularly directed at plaintiffs, as noted. One, found taped to the door of the Mendocino Environmental Center in Ukiah, on April 13, 1990, was a xerox of a large newspaper photo of Judi, with the crosshairs of a rifle scope drawn over her face. The threats were laughed off when reported to the authorities. "If you turn up dead," Mendo Deputy (and co-conspirator) Steve Satterwhite said to Judi when she showed him the cross-hairs, "then we'll investigate."

In addition to the threats and incidents, anonymous public smears and "disinformation" activities against plaintiffs also intensified. In particular, two phony press releases were widely circulated in the area, especially among logging company workers; one was from a non-existent "Earth First! Arcata", and the other had Darryl's name misspelled, and Judi's hometown misidentified. These patently counterfeit devices, falsely proclaiming violent, criminal intentions on the part of Earth First! protesters, were reported upon in the local press as if genuine. The bogus statements promised violent action in the environmental cause, in terms well-calculated to fan the flames of local resentment, and aggravate the threat of violence against Redwood Summer participants. See Exhibit 1.

Thus Redwood Summer had approached in an atmosphere of serious danger of violence and mayhem against plaintiffs and other organizers, by local goons, and possibly private "security" forces, activated by hostility and malevolence on the timber side. The existence of the danger, and the specific fore-running events and threats, were widely discussed and commented on in the press after the bombing, and could easily have been confirmed by good faith investigators of the bombing.

Indeed, Judi and Darryl each had a set of several of the written threats in their possession when the bomb blew up, but these documents were ignored by the defendant investigators. In addition, separately and out of each other's presence, both told first responders they suspected a group of self-styled Nazis, located in and around Fort Bragg, in Mendocino County, as people who might have tried to hurt them. Although these names were mentioned in the Arrest Report on Judi, and notes of the interrogation of Darryl, defendant Mike Sims, the chief Oakland detective, testified that he never heard of them. No effort was ever made by either group of defendants to investigate these leads. See Exhibits 2, 3 & 4.

2. The Bomb Explosion and The Plaintiffs' Arrest.

The bomb blast drove shrapnel and pieces of the car seat up into Judi's body, causing horrifying multiple injuries, which left her maimed and in pain for the rest of her life; she escaped death at that time only by a fluke, a miracle of millimeters. Then, outrageously, instead of moving to catch the bombers, the Oakland police---acting under the influence of the FBI, and working in collaboration with its defendant agents---arrested Judi and Darryl Cherney on trumped-up charges that it was their bomb, blown up accidentally while the two supposedly dangerous, violent, 'eco-terrorists', were diabolically on their way to plant it somewhere.

Judi was booked and placed under guard just three hours after the explosion, while undergoing emergency treatment at the county hospital. The arrest report shows the time of arrest was "1500 hours"---3:00 p.m.---on May 24, where the explosion had occurred at 11:56. Exhibit 3a. Darryl was taken into custody after receiving first aid, kept under guard and questioned extensively by defendants Sitterud, Sims, Sena and others---without counsel and while being refused counsel, where he was asking for a lawyer, and a lawyer was outside in the lobby of the police station demanding to see him---before being booked into the County Jail. His Report showed arrest at 0300 hours on May 25. Exhibit 3b. Although neither of the plaintiffs had any criminal record or past association with violence of any kind, their bail was raised by the Municipal Court from the $10,000 set by rule for the offense to $100,000 each, at the request of the police---bringing another blast of headlines on May 26. All copies of the "Bail Recommendation Report", requesting the increase in Darryl's bail---believed by plaintiffs to have contained falsehood and political slander about Earth First! as purported grounds for regarding him as dangerous---were mysteriously lost. Fresh from emergency surgery, and still basically fighting for her life, Judi was described as a "danger to the community". Exhibit 5.

Meanwhile, Oakland police moved Judi out of Intensive Care into the jail ward, without informing the medical staff, and she was returned only when incensed doctors intervened. Still, police guarded her bedside, and attempted to question her when she briefly woke up, groggy with pain and medicine, sometime after the surgery. See Exhibit 6 (Judi dep, p14-25).

3. Defendants' Lie about the Location of the Bomb.

The ostensible basis for the arrest of plaintiffs was a vicious lie, jointly conceived and put forth by FBI agents and Oakland detectives, to the effect that the bomb had not been under the driver's seat of Judi's car but behind it, on the "rear seat floor board". Ergo, the reasoning supposedly went, it would have been visible there when Judi put her guitar in the back seat, before driving away from the house where she spent the night; ergo, she must have seen it; ergo, it was hers---hers and Darryl's---and they were the bombers.

That purported belief, that the bomb was in plain view on the floor in the back seat, was supposedly based on defendants' examination of the hole the explosion made in the floor of the car. This was memorialized in a search warrant affidavit composed that night by defendant Robert Chenault, an OPD detective. He wrote:

Your affiant viewed the [bombed car, a] white Subaru, along with agents from the FBI. Your affiant was advised by these FBI Agents that the bomb device was on the floor board behind the drivers seat when it detonated. Your affiant spoke with FBI Special Agent Frank Doyle Jr., who told affiant that he has been assigned to the International/ Domestic Terrorism Squad for the past twenty years, has been trained as a hazardous devices technician, is a police instructor in terrorism and bomb matters, and has processed approximately one hundred and fifty bombing crime scenes in the United States. Agent Doyle has testified in Federal, State and local courts as an expert concerning bombing matters. * * * Doyle informed your affiant that his conclusion regarding the location of the explosive device was based upon his observations of a large hole in the rear seat floorboard immediately behind the driver's seat, and his observations of nails, duct tape and pipe bomb fragments in the roadway and the inside of the vehicle. Exhibit 7.

In point of fact, the hole extended from just under the foot pedals almost to the front of the back seat, but was centered directly under the driver's seat, not behind it, as photographs taken that day plainly showed. See Photos P-9, P-10, P-11. The position under the driver's seat was shown further by a matching hole in the seat itself, where the force of the explosion had driven down through the floor of the car and up into Judi's body. The hole in the floor was quite large---more than two feet across and almost five feet long, unevenly shaped, with a big, wide, obviously central section directly under the seat. Photos P-5, P-20. Lieutenant Sims testified he looked down through it and saw the pavement. Ex.34-c (Sims, p362). FBI Lab Expert David R. Williams said the driver's seat "looked like a bomb went off under it". Ex.34-e (Williams, p177).

The location of the bomb was further corroborated by impact points inside the car, where the tops of the caps screwed on to the ends of the pipe hit when the pipe blew up. There is a weak spot at the "shoulder" of a pipe cap, where the top meets the side, whereby the flat top reliably blows straight out from the length of the pipe when it explodes. These obvious, gross signs, undeniable locators which Lab Expert Williams said showed him "right where" the exploding pipe had been located (Exhibit 34-e, Williams, p172), supposedly went unnoticed by the vastly experienced senior bomb technician, Doyle (Ex.34-b, Doyle, p90-93), and also his colleague Webb, who their squad chief said had even more knowledge of bombs than Doyle. Ex.34-f (Reikes, p112-117).

Doyle also cited the condition of the guitar as important evidence that the bomb was in the back, right underneath it. He said the guitar was "blown to pieces", and that, in his "initial observation when I... walked up and looked at the vehicle," he saw "multiple smaller pieces" of the guitar case "about the interior of the car; most particularly in the rear seat area". Doyle said he thought that, "due to the extensive damage of the guitar case,... it was obviously in close proximity to the explosion." Exhibit 34-b (Doyle, p206-209).

In point of fact however, easy examination showed that neither the guitar or the vertical front face of the back seat had been directly in the way of the blast, since both sustained only minor damage. The guitar case was broken along its corners, and slightly mangled at the bottom end, but basically intact---and certainly far from blown to pieces. Photos P-4, P-23, 24. The back seat (i.e., the flat cushion where passengers sit)---which would have been directly adjacent to a blast on the Rear Seat Floor Board, and therefore all burnt---was not burnt in the least, or otherwise damaged at all, except that a seam in the cover was ripped. P-6, P-7, P-21, P-22. Its post-blast condition had been changed when a medic entered the rear seat area moments after the blast, to help get Judi out, and apparently threw the guitar and the fiddle out to make room for himself, see P-2, P-4; however the photo record shows the cushion itself had remained in place. See P-6, P-7. Curiously, however, the rear seat was later dismantled, with the cushion stripped of the cover and turned upside down---apparently for dramatic effect---before the FBI photos of the car were made. See P-25. More curiously, as discussed further below, the cushion and cover were never sent to the FBI Lab.

The investigators also recovered---and ignored the significance of---charred fragments of a blue towel, described by the Lab man as having been used to cover the bomb. (Note 10) Ex.34-e, (Wms, p174); an OPD evidence technician, Michelle Gribi---a civilian, who apparently was left out of the plot---wrote of lying on the ground, taking photographs "showing the damage under the driver's seat". Exhibit 9.

In sum, there was no way such an experienced bomb technician as Frank Doyle, or the supposedly highly-trained Sgt. Sitterud (see his resume in the second warrant affidavit, Exhibit 28), or the other investigators (including the "even more experienced" Webb; OPD Sgt. Hanson, who had just been to an FBI bomb school in late April; Buck, ditto; etc.)---or Ray Charles or Stevie Wonder---would not have known that the bomb was under the seat when it blew up. As Lab Expert Williams testified, looking at a photo of the car at the scene, with the driver's seat removed and the gaping hole exposed, "If the seat was [removed at the scene], it's difficult for me to say what Frank was thinking about." (Ex.34-e, p271)

4. Defendants' Lies About Matching Nails.

As if to confirm the weakness of the theory that the bomb was visible behind the driver's seat, a further falsehood was contrived for use in the warrant affidavit---also ascribed to defendant Doyle---to the effect that, where a quantity of nails had apparently been taped to the pipe "for shrapnel effect", "a separate bag of identical nails" had been found in the car. Ex.7, p2. In fact there were two bags of nails in the car, with tools and other paraphernalia, unsurprisingly, as Judi was employed as a carpenter at the time. The contents of both bags, however---roofing nails in one, framing nails in the other---were plainly different than the finishing nails attached to the bomb. Indeed, like the crucial statement that the bomb was "on the rear seat floor board", the assertion that a separate bag of "identical" nails had been found in the car was an outright lie, deceitfully inserted in the affidavit by the defendants involved in perpetrating the false arrest and the sensational false charges, in order to convince the magistrate to issue the warrant. Like the back seat, the separate bags of nails were also held back from the evidence that was shipped to the Lab, in circumstances more fully discussed below.

The defendants' pretense of probable cause for the arrest, and the confabulations they put in the warrant affidavit, were deconstructed and trenchantly evaluated by plaintiffs' Expert Witness, ex-detective and police chief Anthony Bouza, of New York and Minneapolis, who found them grossly deficient in all respects. See Exhibit 36.

5. The Defendants' Lies that Plaintiffs were Terrorists.

The real basis of the arrest by the Oakland defendants, and the outrageous accusations against plaintiffs which reverberated in headlines from coast to coast, was that defendant FBI agents rushed to the bombing scene and told the Oakland detectives that they already knew the people in the car, and were investigating them, and Earth First!, as terrorists.

The Oakland detectives assigned to the case reported this in the first depositions, more than three years ago. Thus, Detective Sgt. Mike Sitterud:

Q. Did you have a discussion with [FBI and ATF agents] at that time?

MS. SILVERSTEIN: At what time?

MR. CUNNINGHAM: Q. When you got to the scene?

A. There were things said, yes.

Q. And what was that discussion about?

A. That the individuals in the car that had been injured were people they knew, and they talked about Earth First! That these were the type of individuals who would be involved in transporting explosives; bombs. (p.21-22) * * * *

Q. My question is whether -- let me put it to you this way: When [the FBI agents] told you these people are connected to Earth First! or they're part of Earth First!, did you have any idea what they meant?

A. No.

Q. That's what I'm -- did you have to ask them what the hell was Earth First!?

A. Yes.

Q. And what did they tell you then?

A. It was a radical group that was involved in spiking redwoods and redwood trees, a number of other mischief-type things.

Q. Can you recall any other specifics of mischief they told you about?

A. Yeah. That they were involved in knocking down power lines. And I believe -- I think they may have said something about some type of threat towards a nuclear plant, or something along that line. * * * *

MR. CUNNINGHAM: Q. ... [B]y the end of the day, what had you learned about Earth First! from the FBI, or about these people?

A. [Defendant] John Reikes came into the [Oakland Police headquarters] building and he gave us a considerable briefing on them. He told us that he was in charge of the FBI terrorist investigation unit, and that these people, in fact, qualified as terrorists, and that there was an FBI investigation going on on other incidents where these individuals were suspects.

Q. Meaning these two particular individuals that had been in the car?

A. Yes. Ex.34-d, (Sitterud, p34-36).

The word that plaintiffs were terrorists was put out by the FBI immediately. Sgt. Sitterud noted his receipt of the information in a chronology item at 1220 hours, less than half an hour after the blast. Exhibit 10. SA Timothy McKinley of the Oakland FBI office testified that he responded to the scene after hearing an early news report on his radio at 12:10, while driving nearby, and that he was advised by his office that Judi and Darryl were "subjects of a FBI investigation in the terrorist field". Exhibit 11-a. SA James Flannigan of the U.S.B.A.T.F., another early responder, said he was told the same thing at the scene by Terrorist Squad SA (and co-conspirator) James Holford. Ex.12 (Flanigan, p30).

The briefing that evening was given to a large group of OPD officers and FBI agents by SSA Reikes, as head of the Terrorist Squad ("Squad 13"), at about 7:30. As shown in the notes of two Oakland detectives (and co-conspirators) who attended, Hanson and Kraft (Exhibit 13), his information reflected the FBI's existing pre-occupation with Earth First!---and the genesis of the lies the FBI told Oakland---in an active "Preliminary Investigation" for what was indeed classified as Domestic Terrorism.

Prior to the bombing, Squad 13 was ostensibly investigating two actions in Santa Cruz County, late in April, 1990, in which three electric power line support poles had been sabotaged, two on one night, another the next; one fell and caused a blackout. Press outlets received a communiqué in which credit for the action was claimed by an "Earth Night Action Group". Exhibit 14. Santa Cruz County police detectives working on the case suspected several people in a broad circle of local activists, some of whom had associated with Earth First! The Terrorist Squad had joined that investigation with one of their own, with defendant Sena as case agent. Exhibit 11-b. As shown by the false and distorted information given out by Reikes in the briefing, this "investigation" actually was part of a nascent local campaign by defendants to "neutralize" the group and its protected political activities.

6. COINTELPRO in the 90s.

Indeed it appears that Earth First! was by this time a major target for political action by the FBI, exposed at the close of the Hoover era as "COINTELPRO", which was the code name for secret activities by which they attempted to suppress dissent. As revealed in the Church Committee hearings in the mid-70s and elsewhere, the Bureau through all the years of its history has engaged in major, wildly illegal and unconstitutional covert operations designed, in Hoover's words, to "expose, disrupt, misdirect, discredit or otherwise neutralize" various groups whose politics the famously lunatic Director and his minions disapproved of. With the demise of Communism, the "Red Menace" has been replaced by "Domestic/International Terrorism" as the nemesis, and terrorists, real or imagined, are now the chief bogeypersons the FBI is pre-occupied with.

FBI "counterintelligence" operations typically involved surveillance, information-gathering, infiltration and entrapment, promotion of internal conflict and factionalism---especially by bogus letters and messages between rivals---various forms of disinformation and slander in the press and elsewhere, burglaries and "black bag jobs" involving vandalism and theft, and other methods devised and refined in countless illicit political police endeavors against various dissidents---persons, groups and causes---over the years.

Although the U.S. Communist Party had been the original and perennial main target of these machinations---along with the Wobblies (International Workers of the World), which Judi was also a member of---the depths of constitutional perfidy, including outright murder and mayhem, had been reached in the Bureau's campaigns against the Black Panther Party, Martin Luther King, Jr., and others involved in the movement for Black Liberation during the 60s and 70s. (Note 11) Then, with the Church Committee and other revelations, they pretended to call a halt to all interference with lawful dissent; but they didn't stop. More recent operations, against the Sanctuary Movement, in which numerous church groups around the country provided safe haven for political refugees from Central American in the 1980s, and against the Committee In Solidarity with the People of El Salvador (CISPES), also in the 80s, provided additional precedent for the campaign against Earth First!(Note 12)

The "Domestic Security/Terrorism" (DS/T) investigation of the Earth Night Action Group ("ENAG") had been opened under special guidelines set by the Justice Department after the scandals revealed by the Church Committee, which supposedly restricted the FBI from investigating legitimate groups engaged in constitutionally-protected activities. Exhibit 15. At deposition, defendants Reikes, Sena and others repeatedly denied that they had ever investigated Earth First! "Earth First! was a nothing in Santa Cruz", said Sena. Ex. 16-d (Sena, p86). "We didn't know who they were," said Reikes. "The names Judi Bari and Darryl Cherney meant nothing to me at all. I had never heard of them. [To Judi] I apologize for that, but I had never heard of you." Ex. 34-f, (Reikes, p29). In particular, Reikes was adamant in his denial that he told the OPD detectives that plaintiffs were terrorists. Ibid., p347-8.

But this testimony was also false. As noted, SA McKinley reported that his Oakland supervisor told him, early in the afternoon of May 24, that Judi and Darryl were "the subjects of an FBI investigation in the terrorist field". At the time Reikes and Sena were deposed, however, that portion of McKinley's report had been deleted from the version turned over to plaintiffs. Also deleted were portions of defendants' first general report on the bombing, sent to headquarters and several other field offices the next day, which said that "Bari and Cherney were already considered potential suspects" in the ENAG case. Ex.11-b. Similarly, an intra-headquarters memo reporting the bombing and the arrests to the top FBI terrorism official, Neil Gallagher, said a Squad 13 agent (Sachtleben) had reported that "members of 'Earth First' are suspected as being responsible for the sabotage of power lines in Northern California"; this passage too, had been suppressed. Ex.11-c. So the defendants felt free to (falsely) deny their engagement against Earth First! at that time.

Thus the disclosure of these passages more than two years after the original release of the files containing the documents from which they were (wrongfully) deleted, in March, 1996, seriously made liars-under-oath of Reikes and Sena, and served to verify the Oakland defendants' testimony that the FBI defendants came to them after the explosion asserting that plaintiffs were already known to them as terrorist suspects. But the truth of the matter was that they were known because, as part of Earth First! and Redwood Summer, they were targets of FBI "counterintelligence".

Moreover, Squad 13's CoIntel designs against Earth First! were current, and concerted, and the restrictions of the A.G. Guidelines were ignored. Two days after the poles were cut in Santa Cruz, an Earth First! group including plaintiff Darryl Cherney had been arrested when several of them climbed the Golden Gate Bridge and tried to hang a banner which said, "Save This Planet". The FBI was on the scene, and their documents show they immediately incorporated this non-violent public protest---and these participants---into the new Domestic Terrorism "investigation."(Note 13) A report to Headquarters by defendant Conway noted that leaflets about Redwood Summer were (illegally) recovered from Darryl's backpack that day, and Conway followed up on May 18, with a memo which said that liaison had been set up with sheriffs' offices in Mendocino and Humboldt Counties, to "monitor" Redwood Summer activities. Exhibit 14-c, 14-e.

The File shows that defendants also linked the Santa Cruz case and the action on the bridge with previous operations against Earth First! activists in Arizona, who were targets of the FBI's Operation THERMCON, and had been arrested in June, 1989. Exhibit 14-d. THERMCON had developed as a quasi-CoIntel operation, in which the FBI was able to ensnare a famous Earth First! co-founder, David Foreman, in a controversial indictment with several other activists at Tucson, Arizona, the year before, with devastating disruptive effect in the pro-environment movement.

Operation THERMCON revolved around infiltration into the local movement by an FBI undercover agent, aided by a troubled, unstable new arrival in the community, who had been carefully and devilishly suborned by the FBI as an informant and provocateur, and played a crucial role in building up the plot. In particular, the duped activists---who had indeed engaged in acts of sabotage, against facilities they apparently thought were destructive of the environment---reported that the undercover agents constantly attempted to persuade them to use bombs, which they would never agree to, and otherwise to escalate the seriousness, and potential sensationalism, of other contemplated actions.¹⁴ Plaintiffs believe it likely that the FBI was attempting a similar penetration of Earth First! in Santa Cruz, and, at the time of the bombing of plaintiffs in Oakland, was directing its aspiring attention to one or more candidates as possible local doppelgangers for such an undertaking.

Whether or not such an enterprise was on foot, extensive investigation and surveillance had been carried out by defendants and others in the San Francisco division as part of Operation THERMCON, and these activities apparently segued smoothly into the "investigation" of ENAG. Documents from the San Francisco THERMCON file, only recently released to plaintiffs by order of the Magistrate---and documents reported by the FBI as missing from the THERMCON file when it was "processed"---appear to show active FBI operations against Earth First! in California in the last few months before the bombing, well after the Arizona case had been closed.(Note 15) Exhibit 17.

7. The Defendants' Lies About The Purported Informant's Tip.

At deposition, Sgt. Chenault revealed for the first time that, to seal the FBI bona fides to the Oakland officers---who were workaday big-city homicide detectives, after all, not dashing special agents of the elite FBI Domestic/International Counter-terrorist squad---Reikes's henchman Sena shared with the detectives a marvelous informer's Tip, clearly intended to remove all doubt from their minds, and clinch their determination to go forward with the case on the FBI's say-so.

And so it was that as the late-night task group worked at forging the warrant affidavit, and prepared a dramatic, made-for-TV pre-dawn helicopter mission into timber country, to raid the plaintiffs' homes, Sena revealed that this source---a woman supposedly "close to the leadership of Earth First!"---had passed the word on a hot, current basis that two Earth First! "leaders" would be heading down to Santa Cruz "'for some type of an action'". The agents obviously valued this source---who was supposedly helping with their "ongoing investigation"---and did not want to see her "burned", in the jargon of the trade; so Chenault tactfully left the Tip out of his affidavit. Ex.16-a (Chenault, p78-81).

FBI and Oakland defendants both testified about their discussions of the informant and the Tip that night, giving slightly different versions of time and circumstances; but there is a crucial difference in the story between the two groups: Reikes and Sena swore they told Oakland the Tip referred to an action "involving a bomb". Exhibit 16-c, (Reikes, p47); 16-d (Sena, p45). Chenault and Sims, on the other hand, said the "action" mentioned in the Tip was never specified by the agents, because they didn't know what it was. "[W]e had no specific information", said Sims, about what the action was going to be. Ex.16-b (Sims, p133). Chenault said he thought it meant a demonstration of some kind, "something that would cause attention" Ex.16-a, (Chenault, p82); but no one knew what. Lieutenant Sims said the "action" was not even specified as something illegal---although he gathered from the "secretive" way the Santa Cruz trip was supposedly discussed in front of the informant, according to Sena, that it was to be something covert. Certainly there was no reference to a bomb. Ex.16-b, (Sims, p161-63, 385-88, 396); 16-a, (Chenault, p72-84, 82).

Sims affirmed that the Tip figured prominently in the purported calculus of his decision to carry through with the arrest and accusation of the plaintiffs that night---particularly in light of "what I'd been told about their history". Ex.16-b, (Sims, p94). Chenault testified the Tip definitely was part of the basis for his statement in the affidavit that plaintiffs were terrorists, involved in the planting of bombs. Ex.16-a, (Chenault, p72).

7-A. Status of The Tip Evidence.

The FBI has not been able to substantiate the receipt of this alleged Tip, or existence of this alleged informant---properly so-called---and its efforts to deal with the issue have only increased the proof that both are fabricated, as the Court well knows from the Government's secret submissions and overheated demands that this evidence be kept secret. In particular, there is a complete lack of any semblance of the elaborate documentary record which would have been created---let alone the urgent actions that would have been taken---if a legitimate informant had truly warned them that a bombing was going to occur.

Likewise, the vague, unconnected information in the one paragraph where Sena purportedly recorded the tip information---found in his report of a broadly speculative purported conversation with the purported source, which is itself a clear reflection of the FBI's illegal pre-occupation with political groups and activities---doesn't mention a bomb, or Earth First!, and thus helps show the false, synthetic provenance of the Tip, and the opportunistic occasion of its use. Exhibit 18. Plus, the document shows the person had not been approved as an informant, and apparently had been talked to only once before, which proves that Reikes and Sena also lied when they told Sims she was reliable. Ex.16-b (Sims, p131); and see 16-c (Reikes, p44-46).(Note 16)

8. Oakland Embraces the Big Lie.

SO IT WAS WITH THIS tissue of lies---the transparency of which was eagerly ignored by Sims & Co.---that the purported terrorism framework of the case was firmly and readily established with Oakland by the FBI's described blandishments; so much so that, also in the search warrant affidavit, Sgt. Chenault baldly wrote:

Affiant believes that Bari and Cherney are members of a violent terrorist group involved in the manufacture and placing of explosive devices. Affiant also believes that Bari and Cherney were transporting an explosive device in their vehicle when the device exploded...." Exhibit 7, p3, 5th pgf. (Note 17)

Asked about this passage at the deposition, Chenault said:

Q. You wrote in the affidavit that you believe that these two people were involved in a group that was making and placing explosive devices, right?

A. Yes.

Q. As you're sitting here today, can you say what information it was that led you to affirm that belief that they were involved with bombs?

A. Information I received from the FBI during the time we were preparing the affidavit.

Q. And would that be information beyond what was discussed in the briefing?

A. Yes.

Q. And what particulars of that information can you tell me right now?

A. Alls I recall is the FBI agent saying that they were, in fact, terrorists, and that they were being investigated by the terrorist squad. And Agent Doyle saying that he felt they were transporting the bomb. And there was other talk about other bombings, but I'm not sure when I heard that. Ex.19, (Chenault, p49).

Predictably, the arrest provoked a cascade of headlines from coast to coast, trumpeting the FBI line that plaintiffs were part of a secret terrorist arm of Earth First!, ready for violent action designed to Bring the Republic to its Knees. Exhibit 8-a, Ex.20. The dramatic footage of the searches of plaintiffs' homes was played and re-played ad nauseam on TV, along with the solemn intonations of various defendant officers and their colleagues at their several promptu and impromptu press conferences.(Note 18)

9. FBI Manipulation of the Physical Evidence Begins.

DURING THE AFTERNOON OF MAY 24, various defendants and their colleagues gathered the physical evidence from the scene and removed it to OPD headquarters, along with the hulk of Judi's car. There Buck, Gribi and others tagged, bagged and catalogued it. The car was parked in the auto pound, under the freeway across the street. It was agreed between the two groups that the moveable evidence would be transferred from Oakland to the FBI, so it could be analyzed in the famous Crime Lab, in Washington, for use in the case against the plaintiffs. Ex.34-f (Reikes, p138-9).

To this end, defendant Buck and others returned to Oakland the next day and brought everything to the FBI office in San Francisco, where, as Buck testified, it "[t]ook up the whole boss's table". Ex.34-a, (Buck, p96). Instead of rushing it off to the Lab, however, defendant Buck sat down for the next several days---while plaintiffs, the District Attorney, and the world waited for the lab analysis that would tell the connection between plaintiffs and the bomb---and re-did the inventory. Ibid., (Buck, p95-100, 141-144).

10. The Cloverdale Bomb.

A day or so after the bombing in Oakland, the investigators learned---or claimed they only now learned---of another bomb, which had partially exploded at a Louisiana Pacific lumber yard in Cloverdale, California, some 90 miles north of San Francisco, on May 9, 1990, two weeks before the plaintiffs were bombed. Rigged as an incendiary device, with a pipe and firing mechanism mounted on a box containing a can of gasoline, the bomb had misfired, remarkably. An explosion had occurred inside the pipe, blowing the top off one end cap, but the rest of the device, and the can of gas, remained intact---as did a piece of cardboard, found nearby, which bore the hand-lettered legend, "LP SCREWS MILL WORKERS", and a useable fingerprint. Exhibit 21.

Defendants associated this bomb with the plaintiffs. Defendant Doyle and other agents were dispatched to retrieve the bomb evidence from the Sonoma County Sheriff's Department. A separate investigation was opened and assigned to defendant John Conway, who had been involved in earlier FBI attention to Earth First!, including the protest on the Golden Gate Bridge. The Cloverdale evidence also apparently found its way to the boss's table.

The bombing in Oakland occurred on a Thursday. The case was not brought up in Court on Friday, and that Monday was the Memorial Day holiday. On Tuesday May 29, 1990, an evidently somewhat dubious Assistant District Attorney for Alameda County, Chris Carpenter, announced that he would delay filing any charges against plaintiffs until word came back from the FBI Lab about the evidence from the bomb scene and the various searches. But the evidence wasn't at the Lab, it was still on the boss's table in San Francisco.(Note 19)

11. A Letter From "The Lord's Avenger".

As the FBI defendants thus continued to stall, and the smeary news raged on, a startling intervention occurred. A letter came to a reporter for the Santa Rosa Press-Democrat, Mike Geniella, who covered timber issues and had reported on Redwood Summer. In it the writer, who named himself "The Lord's Avenger", proclaimed that he (if it was a he) had set the bomb in the car to kill Judi Bari, "a woman possessed by the Devil", in retribution for her pagan "worship" of trees---and her part in a demonstration defending a Mendocino abortion clinic more than two years before, in Ukiah. Exhibit 22.

Suffused with strangely in-authentic, 'born-again Christian'-sounding extremist diatribe, odd imprecations and other contrivance, and expressing certainty that the writer had been chosen by God to carry out His vengeance against Judi (with a timely assist from the Devil, but never mentioning Jesus), the letter was well-calculated to put the investigation in a tizzy. Shockingly, it also claimed credit for the Cloverdale bomb. It said the bomb in Cloverdale had been an attempt to attack Judi by "Indirection.... I dared not strike at the Demon herself. No, instead the Devil moved my hand to bomb in Cloverdale to bring Infamy down on Judi Bari." Ibid. (emphasis added).

Remarkably, this bomb had somehow completely escaped the notice of federal authorities---including the defendant Terrorist Squad---despite its political message (explicitly terrorist according to the FBI's official definition), miraculously preserved on a cardboard sign that didn't burn because the bomb didn't really go off. The wealth of clues such an undestroyed device would have contained---here even including a useable fingerprint on the sign (Ex.21-c, p2)---is normally regarded as a "holy grail" to these investigators (see Exhibit 21-d). They would have had a report come through their hands through the FBI alert network, but somehow they missed it. See Ex.34-e (Reikes, p208-9).

Then, no sooner did the FBI finally get wind of this second bomb than its intimate connection to the case was notoriously confirmed by an apparent mystery man, a seeming religious lunatic and admitted would-be assassin, in an appalling letter to the press in which (he) carefully and in detail described both bombs! As was soon confirmed, the Lord's Avenger may have struggled to get (his) religious rhetoric straight, but he apparently knew exactly what both bombs were made of and how they were made. Only the bombers---and the FBI---had that information.(Note 20)

12. The Evidence Goes to The FBI Lab, But Not All Of It.

WHATEVER ITS MEANING, or source, the Lord's Avenger letter galvanized defendants into action with the evidence. Agent Buck got on a plane himself and took it to Washington, to the bomb guru at the Lab, David R. Williams---although, as noted, he left a number of key items behind. Williams soon confirmed that the Avenger's description of both bombs and their construction was accurate, and said he could tell by such things as the twisting of the wires, the soldered connections, etc., that both bombs were made by the same person. Ex.34-e, (Wms, p125-6, 131, and see Ex.24, p23-26). Importantly, Williams also verified that the bomb in Judi's car had included a "motion device", whereby it was detonated by a movement of the car, after being activated by a time-lapse mechanism fashioned from a clock. Ex.24, (Report, p22); 34-e, (Wms, p97-99); and he later confirmed that the bomb in the car had "functioned as designed". Ibid., p125-26.

Supervising Special Agent Williams is a man much in the news of late, in connection with the mushrooming scandal involving manipulations, distortions and spoilage of evidence at the Crime Lab over the years, now said to jeopardize uncounted criminal convictions and possibly even the prosecution of the Oklahoma City bombing. See Exhibit 23. Plaintiffs aver that Agent Williams took part in purposeful mishandling of evidence by the FBI in this case also, which we are at pains to show as substantive evidence of the violations charged, and the conspiracy. Suffice to say, his evidence feeds the fires of material dispute about FBI wrongdoing in this case like no other witness. In particular:

Whatever his intentions were then, when the defendants' plot was first in bloom, or later, when he testified, or now, when he is apparently disgraced, embroiled in scandal and possibly washed up, Agent Williams issued a formal report from the Lab, dated June 14, 1990, which showed that---save for the ambiguity about the so-called batch of nails---no evidence from the bomb scene could be matched to anything taken in the searches, or otherwise connected to plaintiffs in any way. Exhibit 24.

But this information was not released; indeed it was suppressed, for the time being, at least. So the original delay in submitting the material to the Lab was greatly compounded, enabling the smear of plaintiffs to continue.

13. Expert Williams Makes A Personal Inspection of the Car.

As controversy raged on over the conspirators' claim that the bomb had been visible---and plaintiffs' supporters won at least a modicum of attention from news media with their counter-accusations against the police and the FBI---it was decided that SSA Williams should come to Oakland and examine the bombed car first-hand. So he came on June 14, and inspected the bombed car and an intact counterpart, borrowed for the occasion, with an entourage of FBI and Oakland investigators. As noted, he readily determined the location of the exploded pipe from the end cap impact points, (Ex.34-e, Wms, p172); he also posed for a series of photographs with a mock-up of the bomb, prepared by Doyle, which he placed in various positions in both the bombed and the intact cars. Despite the fact that the mock-up was visibly quite a bit larger than it needed to be to contain all the component parts of the bomb, several photos show how this process further confirmed that the bomb had been hidden under the seat---as part of an assassination attempt. Photos, P-13-16.

But with all of this complex exercise in Labspersonship in Oakland---none of the involved agents, not Williams, Doyle or the case agents, Hemje and Conway, or Reikes or anyone, wrote any report of these activities. Much less did any defendant then promptly announce that no evidence existed to tie plaintiffs to the bomb; or that the bomb had in fact been hidden under the seat, and their theory that Judi must have seen it when she loaded the car knocked into a cocked hat; or that it had been set off by a motion device, which showed it had been put in the car to blow her up.

Rather than announce the truth, and discharge the plaintiffs, defendants sat tight for another two weeks, preparing an elaborate further pretense they could use to keep the case going---built around a new lie about nails---in the form of a second false affidavit for a second (illegal) search warrant.

14. The Second Falsified Search Warrant.

In the new affidavit, by Sgt. Sitterud, he swore that Williams had informed him the nails from the bomb and nails found in Judi's house in the first search came from "the same machine within a batch of 200-1000 nails"! Included as an exhibit with the affidavit was a six-page section of Williams' June 14 report, not including the statement about the batch---which in fact included no reference to the size of any batch. Exhibit 28.

At Deposition, Williams said,

Q. -- "within a batch of two hundred to one thousand nails."

A. Are you asking me if I read that?

Q. You read that.

A. I've read that.

Q. Is that what you told him?

A. Not that I can remember.

Q. Would you have told him that last part, that the batch was two hundred to one thousand nails?

A. That's very unlikely.

Q. Because, as you just told us, there's no way of telling that.

A. That's right. Exhibit 25-a, (Wms, p231).

Regardless of who said what to whom, however, and who made it up, Sgt. Sitterud wrote in his application for the second search warrant that Williams the expert had assured him the nails came from a really small batch, which gave it a really guilty ring, of course.

Besides this now twice-falsified point about the nails, the second affidavit also recited the investigators' unblushing conclusion that, since plaintiffs were the bombers, and the Lord's Avenger letter contained an accurate description of how the bombs were made, plaintiffs must also be the authors of the letter. So they said they had to search Judi's house again, to find the typewriter it was written on. Ex.28.

As before, this search turned up nothing of value to the investigation---except news stories, of course. In a press conference on July 6, defendants Hahn and Sitterud finally divulged that the bomb had been "a little further under the seat than we originally thought"; but they said that didn't matter, because they had found more matching nails in Judi's house---in the woodwork, yet. Exhibit 29. These public statements were made long after defendants certainly knew that no useful match could be made among any of the nails.(Note 21)

15. Oakland Drops The Case; The FBI Doesn't.

Ten days after the press conference, the pretense of a case against the plaintiffs in Oakland finally collapsed. The Alameda County District Attorney's Office announced on July 17, 1990, that no charges would be filed against Judi or Darryl, because, as defendants reported to FBIHQ, there was "insufficient evidence to sustain a conviction"; in fact they had no evidence at all.

That didn't keep the FBI group from pressing on, however, and three days later Reikes and Held advised Mewborn and the High Command at FBIHQ that they now had an informant who had foretold the Earth First! bomb caper. This teletype said the San Francisco division would be continuing its investigation of plaintiffs, based on "the following evidence in regard to Cherney's and Bari's involvement...": the tip; the (non-)matching nails, which they represented to HQ---See the FBI lying to Itself even---were made by the same machine "within a relatively short, less than eight hour, time span"; the word of the Lab that the two bombs had been made by the same party (whatever that meant, since they hadn't even investigated the Cloverdale fingerprint, let alone found out where the intact bomb parts came from); and, apparently, the expectation of finding the typewriter used to write the Lord's Avenger Letter. Exhibit 11-d. This memo, two months after the bombing of plaintiffs, contains the first reference in the bombing investigation file to any informant or tip.

The memo noted that the San Francisco office had issued three separate press releases, and had the SAC interviewed on TV, to reassure the public that the FBI investigation "is ongoing and continuing"---even though they had no evidence, and the "evidence" they describe is false or meaningless or both.

16. The Sham Investigation by the FBI.

The later FBI Investigation was false and meaningless also, except as a means to keep the smear pot boiling against Earth First!---and to conduct political surveillance and other mischief. Defendant Hemje now presided over a process of industrious obfuscation, aided by the indefatigable Buck, who traveled all over talking to timber people about threats, and looking for letters to the editors which might match the letter from the Lord's Avenger, Ex.11-j; plus there was Conway, who had the Cloverdale case, and became responsible for both cases when Hemje was re-assigned outside the Squad at the end of 1990; Reikes was also relieved as chief of the Squad at that time, by the SSA-in-waiting, Patrick Webb. The Santa Cruz case petered out---to the great and still mysterious consternation of the Assistant U.S. Attorney who expected to prosecute it (Ex.14-f)---except for the continuing but apparently unproductive development of the famous informant(s).

As case agent, Hemje was responsible for coordinating and/or carrying out the activities of the sham investigation after the first week. He set a record for memory lapse in his deposition, but did manage to affirm that it was up to him as case agent to determine how to deal with leads, who to interview, etc. Exhibit 34-g, (Hemje, p42-3). So it was Hemje who, after SA Buck got the originals of the threats from Judi's lawyer, in late July (Ex.26-h), simply sat on them, as he had the fingerprints on the Cloverdale sign and the Lord's Avenger letter. The file shows no fingerprint check was ever made of these threats or those Judi and Darryl had in their possession when they were bombed.

Other striking aspects of this FBI "investigation" after Oakland dropped the case include the following:

17. The FBI Let the Assassins Go Free.

DURING ALL THAT TIME and with all the effort of their "investigation" of the bombing, the defendants never raised a finger to check out Jack Azevedo, Charley Stone and the Ft. Bragg Nazis---who both plaintiffs first believed and told the police were logical suspects---despite their many threats against plaintiffs, and Stone's repeated open calls for violence against Redwood Summer participants on his radio show. Indeed, they never made any investigation of any of the threats, with or without the originals in their possession. Nor did they check useable fingerprints found on the Lord's Avenger Letter and the cardboard sign recovered at the Cloverdale bomb scene---even to see if they matched either of the plaintiffs; maybe they already knew they didn't match---certainly they didn't want to have to say so.

They also made no effort to look into the fake press releases, circulated before the bombing to discredit Earth First!---even when it was reported that they had been passed out to timber workers by members of a public relations firm hired to carry on the company's propaganda battle against Redwood Summer, Exhibit 1-e; when they learned the identity of the probable author of the fake releases they never investigated him. Ex.26g, p.2.

Who can say what other things they knew about the bombing, or could have found out, and ignored? Over time, defendants Held, Reikes, Webb, Conway and others falsely claimed that the investigation was hindered by refusals to cooperate by plaintiffs and their associates, when in fact no good faith effort was made to get information from any such persons. Ex.11-e, 11-g, 11-i, etc. Defendants used Judi's lawyer's request for immunity as an excuse to cut off attempts to learn anything from her, and simply ignored everyone else who might have had information that would have helped solve the case, which remains unsolved. After the lawsuit was filed, in April, 1991, and FBI defendants were joined that May, defendants never took the deposition of either plaintiff, for more than five years. When Judi's deposition was taken on January 30 & 31, 1997, against the threat of her then-advancing fatal illness, defense counsel disrupted and obstructed the proceedings from start to finish, and bullied her remorselessly throughout; but they never asked her a single question on cross-examination.

IV. MATERIAL QUESTIONS OF FACT RAISED BY THE VIOLATIONS AND CONSPIRAC(IES) ALLEGED IN THE AMENDED COMPLAINT, AND PLACED IN DISPUTE BY PLAINTIFFS' EVIDENCE.

The violations complained of herein, and the conspirac(ies) by which they were carried out, resulted from and are reflected in a course of unconstitutional conduct by defendants, shown above, which as noted none of them could reasonably have thought was lawful. That conduct is fully put at issue by the described evidence, creating Triable Issues of Fact material to defendants' liability vel non for the violations charged, and barring Qualified Immunity for any defendant. Taken in the light most favorable to the plaintiffs, the evidence shows the following:

1. The FBI defendants, and particularly John Reikes, in the presence of the others under his command, falsely identified plaintiffs to the Oakland officers as part of an Earth First! terrorist group, under investigation for other crimes and likely guilty here, when these terrorist squad defendants Sena, Doyle, Buck, Webb and others all knew this wasn't true. In response, Sims and the other detectives immediately and unquestioningly---unreasonably, against all logic and proper procedure, and with deliberate indifference to the plaintiffs' clearly established rights---agreed to assume their guilt and proceeded accordingly.

2. To support a groundless arrest they wished to make for illicit political purposes, defendants Doyle, Reikes, Sena, Buck Webb, Sitterud, Chenault, and Sims knowingly concocted and promoted pure fictions to the effect that the bomb would have been visible in the car, that matching nails were found, that plaintiffs showed guilt by identifying the event as a bomb explosion, etc., as the basis for a false purported belief that plaintiffs were knowingly transporting the bomb.

3. These fabrications and other innuendoes were deceitfully fashioned into the first search warrant affidavit by the same group (possibly excepting Buck and/or Webb); without them the affidavit would contain no semblance of probable cause. (See Franks v. Delaware)

4. Sena, Reikes and others also pretended the FBI had a Tip from an informant which corresponded to the bombing, and supported the decision to arrest and search, when in fact this supposed Tip was fabricated, and the information they based it on insubstantial and meaningless.

5. A meeting of the minds was reached, whereby the Oakland defendants would arrest plaintiffs for supposed state bomb offenses on the jointly fabricated grounds---although the informant part was kept secret---and obtain warrants to search the plaintiffs' homes; the arrests for possession of a bomb would be announced in big headlines, nationwide, a scandal; and the FBI would "support" Oakland by taking possession of all the evidence, and doing the 'criminalistics' work at its famous Crime Lab in Washington, while running a joint and several "investigation" of its own.

6. These initial activities and undertakings were led in person for the FBI by Reikes, as chief of the Terrorist Squad, in active communication and consultation with Held and Appel as the local chain of command, and with Mewborn back at Headquarters in Washington, D.C., all within the legal rules of supervisory liability, and as part of a conspiracy. Doyle and Webb supplied expertise regarding bombs, which Sitterud also claimed (in the second warrant affidavit)---not that it took much expertise to see the bomb had been hidden under the driver's seat, or tell the difference between the patently different types of nails. Buck was steward, and manipulator, of the physical evidence, and later the interview legman in the north county area. Hemje, Sena and Conway were the case agents, and Webb became squad supervisor after 1990. Sena was already targeting Earth First! when the bombing occurred, in the purported "domestic terrorism" case in Santa Cruz, and his purported contact with the purported informant, who was confidentially (and falsely) described to Sims as "close to the leadership" of Earth First!---which plaintiffs were well-known to be part of.

7. Indeed it was Sena's inspiration, if not preparation, which transmuted an ambiguous and questionable item of purported information from the purported source---about "heavy hitter" activists supposedly coming to Santa Cruz for "an action"---into the purported Tip. With it, the FBI beguiled the willing Oakland detectives the night of the bombing, backing it with Reikes' false assurance---wink, wink---that the source was reliable. Later, defendant McKinley and OPD political "intelligence" officer Griswold falsely testified that they were aware on the day of the bombing that the FBI had an informant's tip that was about a bomb.

8. After the arrests and the first barrage of headlines, and the decision of the District Attorney to hold up filing charges until the lab reports would come back, defendant Buck and others removed the physical evidence---minus the car---to the FBI office in San Francisco. There it sat for a week, while the headlines continued, and plaintiffs 'twisted in the wind'.

9. When the evidence finally was sent to the Lab, critical items were withheld, including the supposedly "identical" nails, the written death threats, crucial useable fingerprints, and the rear seat cushion of the bombed car---which showed clearly from its condition that the bomb had not gone off next to it, as the agents and detectives pretended to believe.

10. Defendants Held, Mewborn, Appel, Reikes, Webb, Doyle, Buck, Conway, Hemje and Sena, together with those uncharged, had an understanding in the course and scope of their work as FBI terrorist squad agents, and a meeting of the minds, whereby they illicitly monitored and surveilled the protected activities of Earth First!ers, and engaged or sought to engage in operations designed to disrupt, discredit and "neutralize" Earth First! Defendants thus stayed alert for opportunities to initiate or extend such operations, not least in order to magnify the supposed terrorist threat they could then pretend to combat; and they readily seized upon the bombing of plaintiffs as an occasion for a great political smear of Earth First! and the plaintiffs.

11. In this, the defendant Agents---with the assistance and cooperation of numerous others who knew or should have known that wrong was being done, and are culpable as unsued co-conspirators---acted pursuant to a long-standing unconstitutional policy and practice of political "counterintelligence" action by the FBI---meaning repression---against dissidents. The same here pre-disposed the defendants and their overseers to this illegal conduct, and especially defendant Richard Held, as a career-long specialist in this type of political police skullduggery---at least to the extent that these actions were not in fact dictated by Held himself, in his own fiefdom, so to speak, and, once begun, acceded to by Headquarters with its fingers crossed, or holding its breath...

12. Thus, even when the FBI Lab determined that the bomb in Judi's car was hidden under the driver's seat, and detonated by a "motion device", (which "functioned as designed"), all defendants failed and refused to acknowledge that the evidence showed plaintiffs were victims of a bombing attack, and not would-be perpetrators of an attempted terrorist act involving an "anti-personnel device", with nails taped on it "for shrapnel effect", which really only showed the bombers intended that Judi be blamed...

13. Likewise, even after the Lab expert reported there was no connection between the bomb and any materials recovered in the searches of the homes, cars and personal effects of plaintiffs and their associates, defendants pursued and continued to publicize their false charges against plaintiffs for many weeks and months. Though they knew or should have known there was no way to make a guilty match of nails taped to the bomb with other nails, defendants Reikes, Conway, Sena, Hemje, Sims, Sitterud, Chenault and others justified, caused and carried out a second search of Judi's home, reviving the sensational headlines a month after the bombing, in part by falsely telling the Magistrate they expected to find "more" matching nails there.

14. Finally, even after the Alameda County District Attorney's Office finally announced that no charges would be filed against plaintiffs, defendants Reikes, Doyle, Buck, Conway, Hemje, Sena and Webb, with the supervision, cooperation, encouragement and bureaucratic sponsorship and protection of Held and Appel, and active headquarters support and coordination by Mewborn and others, went on, undaunted, to conduct a sham investigation of the bombing, while in fact gathering political 'intelligence'---and creating further political slander---about plaintiffs and several of their associates, and Earth First! These activities and violations continued at least through 1991, with brief subsequent revivals. And in all that time they never lifted a finger to catch the real bombers.

15. Since 1991, the defendants' conspiracy has evolved into a full-blown coverup in the course of this litigation, much of it already described above, involving misrepresentation of evidence, disruption and evident doctoring of disclosed files, defalcation of documents from the files, unjustified deletions from file documents, false and misleading testimony in depositions--- including groundless refusals to answer questions---and other measures. We first brought these actions to the Court's attention in our original motion to add the John Doe conspirators, in December, 1995, and later in a separate complaint, which the Court dismissed last year.

V. CONCLUSION

ON THIS EVIDENCE and these issues, it is clear that no defendant is entitled to qualified immunity on any count. If a jury accepts this evidence, and believes that these things happened, and were done (and not done), they will rightfully find that defendants violated the plaintiff's civil rights, and that there was a conspiracy to violate their rights, in order to disrupt and defeat their political cause. Because the evidence is sufficient, the Court must deny qualified immunity to all defendants and move the case ahead to trial.

WHEREFORE, this honorable Court is respectfully requested to enter an Order which reinstates plaintiffs' claim against defendants for denial of Equal Protection, according to the terms set forth in Section II, above, and certifies that no defendant is entitled to qualified immunity in this case, because plaintiffs' evidence creates disputed issues of material fact on each element of each claim against each defendant---also as specified in Section II; we ask for such other and further relief as the circumstances demand.

Respectfully submitted,

DATED: March 15, 1997.

Dennis Cunningham

William M. Simpich

Attorneys for Plaintiffs

Of Counsel: Michael Deutsch, G. Flint Taylor, Jr.

Plaintiffs and their counsel wish to express profound gratitude to Tanya Brannan, an indefatigable and very good-natured helper, without whose patient and highly intelligent assistance this brief simply never would have been produced.

VERIFICATION

I, Dennis Cunningham, declare on pain of perjury that I wrote the within Memo and know the contents, including the quotes and other factual matters stated therein; that the same are true in substance and in fact, and can be shown with good evidence (even where it may not yet quite appear); and that the exhibits contained in the Appendix are all true and correct copies of documents provided by defendants in discovery, excerpts from depositions, etc.

Dennis Cunningham
March 15, 1997

CERTIFICATE

I certify that I served the within Motion for Certification, etc., on defendants by mailing copies to R. Joseph Sher, STC, USDOJ, Washington D.C., and Karen Rodrigue, Esq. DCA, in Oakland, this 18th day of March, 1997.

Dennis Cunningham

1. "If a genuine issue of fact exists preventing a determination of qualified immunity at summary judgment, the case must proceed to trial." Act Up!/Portland v. Bagley, 988 F.2d 868, 873 (9th Cir. 1993); see generally, Anderson v. Creighton, 4833 U.S. 635 (1987).

2. See, Gibson v. United States, 781 F.2d 1334 (9th Cir. 1986); Hobson v. Wilson, 737 F.2d 1 (DC cir. 1984); Paton v. LaPrade, 524 F.2d 862 (3rd Cir. 1975; Socialist Workers Party v. Attorney General, 419 U.S. 1314 (1974); Philadelphia Yearly Meeting v. Tate, 519 F.2d 1335 (3rd Cir. 1975); Riggs vs. City of Albuquerque, 916 F.2d 582 (10th Cir. 1982); Fifth Avenue Peace Parade Committee vs. Gray, 480 F.2d 326 (2nd Cir. 1973); Alliance to End Repression v. Rochford, 407 F.Supp 115 (N.D.Ill. 1975), settlement approved, 91 FRD 182 (1981); Alliance to End Repression v. City of Chicago, 627 F.Supp 1044 (N.D.Ill. 1985); Jones v. City of Chicago 856 F.2d 985 (7th Cir. 1988), and so forth (List in formation). And Hampton v. Hanrahan, 600 F.2d 600 (7th Cir. 1979). Mendo v. Mendo, 14 F.3d 457 (9th Cir. 1994).

3. Illinois v. Gates, 462 U.S. 213 (1983); Kennedy v. L.A. Police Dept., 901 F.2d 702 (9th Cir. 1988); Duran v. City of Douglas, 904 F.2d 1372 (9th Cir. 1990); Conner vs. City of Santa Ana, 897 F.2d 1487 (9th Cir. 1990); and see Sevigny v. Dicksey, 846 F.2d 953 (4th Cir. 1988).

4. 438 U.S. 154 (1978); and see, e.g., Stewart v. Donges, 915 F.2d 572 (10th Cir. 1990).

5. Intending no impertinence, plaintiffs here seek to revive the Equal Protection claim dismissed without prejudice by Judge Lynch, and stricken from the proposed 7th Amended Complaint by this Court on grounds that we hadn't alleged facts to support it. The reason was that we didn't allege any new facts in the 7th, to avoid the risk of providing grounds for another (specious) appeal. As can be seen in the facts presented here, there are ample grounds to sustain an alleged violation of Equal Protection. Moreover, the failure to go after the real bombers, and the CoIntel uses of the sham investigation, are important elements of defendants' attack on plaintiffs, and of plaintiffs' proof of defendants' animus; so this is a crucial part of the case. Therefore we ask the Court, in keeping with the "extreme liberality" towards amendment which our Circuit requires, per D.C.D. Programs v. Leighton, 833 F.2d 183, 186 (9th Cir. 1987), to revise the stricture of the Dec. 16 Order, per Rule 54(b), and allow restoration of the Equal Protection Claim.

6. See Order of August 31, 1992, p45-47 (Lynch, J.); Graham v. City of Biggs (1979) 96 Cal.App. 3d 250.

7. Adickes v. Kress, 398 U.S. 144 (1970); Hampton v. Hanrahan, Hobson v. Wilson, Gibson v. United States, all supra.

8. Plaintiffs have not found any additional evidence implicating defendant Oakland Detective Ramon Paniagua, beyond his role in taking a Bail Enhancement Request to the Municipal Court on the second day; that is certainly no more than numerous other officers and agents did who cooperated---knowingly, we say---with the main culprits. We listed all the co-operators as 'unsued co-conspirators' in a section of the proposed 7th A.C. which the Court saw fit to strike. In the circumstances, we can't sustain our burden against Sgt. Paniagua on the same level as the other defendants, so he can be dismissed.

9. The discovery the parties have engaged in on the immunity claims is far from complete, due to a combination of defendants' resistance and the limits on plaintiffs' wherewithal---and also the hiatus in our pursuit of the informant evidence. The evidence remaining to be acquired is important, and plaintiffs' don't intend any waiver of their claims to any of it by this motion. It includes the following (List in formation):

Deposition testimony about FBI rules and procedures sought under Rule 30(b)(6), ordered by the Magistrate.
Improper/unjustified deletions from the THERMCON File.
Answers to "hypothetical questions", etc., improperly blocked or refused in defendants' depositions, ordered by the Magistrate.
Answers to Interrogatories withheld on bogus objections.
Requests for Admissions not fairly responded to.
Evidence concerning the Informant(s).

10. In addition, Judi remembers there was a paper bag of trash on the floor behind the driver's seat, the charred remains of which appear in various photos (e.g., P-6), which also would have helped hide the device. Judi Declaration, Ex.8-b.

11. See Final Report of the Select Committee on Intelligence (Church Committee), U.S. Senate 1975), p.86ff; Swearingen, FBI Secrets: An Agent’s Expose, South End Press, 1995; Robins, Alien Ink: the FBI’s War on Freedom of Expression, William Morrow & Co., 1992; Schultz & Schultz, It Did Happen Here, University of California Press, 1989; O’Reilly, Racial Matters, The Free Press, 1989; former U.S. Rep. Don Edwards, "Reordering the Priorities of the FBI", 65 St. Johns Law Review 59 (1991); Churchill & Vander Wall, Agents of Repression, South End Press, 1990; Counter-Intelligence, a Documentary Look At America’s Secret Police, National Lawyers Guild, 1980.

12. The defendant Richard Held brought a wealth of special expertise to such activities, having been occupied in FBI counterintelligence campaigns around the country for more than two decades. In particular, he figured prominently in disruption operations against the Black Panther Party, and was centrally involved in the criminal frame-up of Geronimo ji Jaga (Pratt) in Los Angeles, which led to his conviction for a crime he didn't commit, but remains wrongfully imprisoned for in California 27 years later. Held was also a prime mover in the sordid persecution of the actress Jean Seberg, for her support for the BPP, which ultimately drove her to suicide; he was part of FBI operations against the American Indian Movement on the Lakota reservation at Pine Ridge, SD, in 1975, for which Leonard Peltier remains wrongfully imprisoned; and he commanded massive illicit operations against the independence movement in Puerto Rico in the late 1970s and early 1980s. See R.404(b) F.R.E.

13. Defendants have continued to stonewall on the discovery request regarding it, but documents and circumstances show that the Bridge arrestees were still subjects of the FBI "investigation" in 1991, when their long distance records were illicitly acquired, and all the people they called nationwide in three months were also investigated. See below, Sec. III-16.

14. Omitted.

15. The story of the documents missing from the SF THERMCON File reflected in documents in Exhibit 17, is this. The first memo, in 1988, contains instructions to San Francisco to furnish information about "any incidents wherein subjects are known to be members of Earth First". In the second, after the arrests in Arizona in June, 1989, San Francisco reminds Phoenix it has no further THERMCON tasks, and unless told otherwise, will close the case ("referred upon completion"). Then come two "redacted" memos by Agent Sena (PJS), without (visible) dates, discussing contacts with a source or sources; the second bears a "block stamp"---normally affixed when the document is "processed" into the file.

In between these, is an undated statement, not signed, initialed or otherwise identified, saying that, "Serials" (i.e. separate documents added to the file, each given a serial number) 142 to 157 "were missing from the file when the file was processed." Both the Sena memos bear the serial number "141"; however the second one, with the block stamp (entered in the file after the first, according to the order they were in when plaintiffs received their copy), has that serial number crossed out and replaced with a totally different number. The next serial in the file, No. 158, dealing with service of subpoena for the trial in Tucson, is dated June 25, 1990. See Exhibit 17.

So there are sixteen numbered official documents, filed between January 23 or March 15 and June 25, 1990, vanished in thin air. The defense has given an explanation dealing with re-numbering of the file after the criminal case began in Tucson, as shown on the second Sena memo, but it doesn't hold water. Why wouldn't the re-numbered items appear, re-numbered, like the one that's here? Plaintiffs are of the opinion that the missing serials showed political surveillance and other illicit operations against Earth First! in California, and Redwood Summer, having nothing to do with THERMCON; as such, given the charges herein, they were too hot to handle, and so were simply iced...

16. The Court is aware that the development of the Tip evidence has been put on Hold, pending further exploration of how it fits into the case as a whole, and how its further disclosure and confirmation might affect the balance of interests among those concerned---meaning the parties and the person(s) suspected of giving information. Suffice to say---without conceding any part of the demand for full, full, disclosure, the question of whether there was any such Tip, fairly so-called---let alone whether Reikes and Sena falsified it to Oakland---is substantially put in issue by the evidence already in hand.

17. A different kind of lie is adduced in Chenault's next sentence: "Cherney's explanation of the incident is inconsistent with the physical evidence found at the scene." (Ex.7, p3, 5th pgf) Close to the beginning of the narrative, Chenault related that one paramedic told him at the hospital that, "While treating Bari at the scene she told him that. "A bomb went off in their car." (p.06, 4th pgf); and another paramedic told him "that Cherney told him at the scene that. "We are political activists with Earth First and they threw a bomb at us." (p.06)

Defendants make much of these alleged utterances as an item of supposed weight in supposedly reflecting guilty knowledge, both in Judi for being right---just after having a bomb go off under her seat, into her body, in saying it was a bomb---and in Darryl for being wrong, in supposedly saying "they threw a bomb at us"! In long reports of later interviews with the medics, SA Stewart Daley, a co-conspirator, recounted that all three said Darryl kept saying he and Judi were activists, had been threatened, were victims of attempted assassination by this bomb; but there is nothing in any of Daley's reports about any "throwing" of a bomb claimed by Darryl.

Moreover, Darryl was interviewed at length by defendants Sims, Sitterud, Sena and others that night, and they never asked him anything about his statement, or the bomb being thrown, etc.

The bomb was hidden under the seat, not thrown into the car, as anyone could plainly see from the moment of the blast and then on. If Darryl spoke to the contrary, that meant he didn't know what happened, not that he was guilty. Plaintiffs' Expert Witness called the pretense that these statements were incriminating "absurd, and their use in the affidavit, "a grotesque overreach". (Bouza, Ex.35, p65, 148)

18. One major impact of the arrest fell upon a group of plaintiffs' Redwood Summer colleagues. Within about an hour of the explosion, a large force of Oakland and Berkeley police and FBI agents descended on the Berkeley house where Judi and Darryl had attended a day-long meeting the day before the bombing with the members of "Seeds of Peace", a volunteer group which was helping with preparations for Redwood Summer, and was committed to providing logistic support---food, water, medical facilities, etc.---for the mass demonstrations in the summer campaign. Sporting their flashy windbreakers with the BIG WRITING on the backs, the officers broke into the house with the hysterical shouting and waving pistols that have become such a staple of Live Cop TV, pushing, shoving, pummeling the frightened occupants, and driving them out to the front yard, where they were handcuffed and taken away, all without a word of explanation.

Many officers remained behind and tore up the house, pretending to look for a bomb factory that obviously wasn't there. A young man with long hair who happened along the block was knocked to the ground by officers, cursed and threatened, handcuffed, and taken away with the others. TV camera people were thoughtfully invited along, to assure more colorful footage for the nightly news. Officers detonated a bomb of their own, to destroy a box of tapes found in Darryl's van---parked at the Seeds house---which they considered too suspicious to look inside, and this footage was played over and over on the news.

A total of eleven people were rounded up and held at police headquarters until that night, given no explanation of why they were arrested, and not allowed to talk to lawyers who came to try to help them. Not smeared enough by being shown on TV as apparent suspects in the bombing, these friends and associates of plaintiffs were later (falsely) blamed by defendants for the purported failure of the bombing investigation, because they supposedly refused to cooperate with the police.

19. Sgt. Sitterud's Supplemental Report reflects the stall which now occurred, showing no activity between the end of the searches the morning of May 25, and May 30---save for a meeting with the D.A. on the 29th, where Sitterud got the word his case was being put on Hold. This document, a purported chronology of the Oakland investigation, appears to have been cooked up after the fact---possibly for purposes of the lawsuit---an impression reinforced by Sitterud's testimony on the subject; see, e.g., p120-126 (Ex.34-d).

And what was so complicated, anyway, about testing the stuff from the houses, and Darryl's van, to match the bomb stuff: tape, wire, vise-marks, etc.? Why did it have to go to Washington for such simple lab work, when time was of the essence? Why couldn't it have been done in the Oakland crime lab that night, or morning, before the charges were announced?

20. The files show this letter became the ostensible focal point for the FBI's purported bombing investigation, but they never took the obvious investigative steps; they never checked the fingerprint, never obtained photos from the abortion demo to see who was there, never followed up on the typewriter comparisons, etc., etc. This appears to magnify the fishiness of their failure to notice when it first went off.

21. One doesn't assume the Lab Man is stupid, so he must have known why the comparison of nails had meaning for the investigators; so why didn't he pick up the phone and find out how big a batch of nails was---let alone do research on the configuration of nail-making machines---so he could give true information about the nails, and the comparison. Did he fudge it so as to protect its usefulness in the lie? The FBI file shows they had contact with the nail company two days before the second search affidavit was sworn to, falsely stating that the batch size was 200 to 1000 (Ex.25-b). Are we to believe that no one talked to anyone about batch size before that lie was submitted to the magistrate??

22. Significantly, the portion of this passage in the report which includes reference to the Santa Cruz case (Ex.11-j, p3, L.10-11), was originally deleted, apparently in aid of the false pretense that the FBI defendants didn't connect the Santa Cruz case to Earth First!. See above, Sec. III-5.

23. Defendant Appel is another suddenly newsworthy figure, having apparently been caught in the middle---whence he abruptly took his retirement, on March 10, 1997, according to the S.F. Chronicle on March 12---when the Bureau clashed with the president about who said or should have said what to whom about alleged possible attempts by the Chinese government to influence U.S. policy by making illegal (!) campaign contributions.

Webmaster's Note: This document may vary from the final version filed with the court and published in a bound paper version. It was supplied on disk in a version that preceded final printout and error correction. Apologies for the long delay in publishing the motion on this website. We had hoped to find the time to carefully go through this version and the printed version to catch and correct any errors or changes, but this never happened. We welcome email from anyone who wishes to point out needed corrections. Thank you for your patience.

The Appendix is over 400 pages long, containing evidence photos and facsimiles of FBI and OPD files as well as transcripts of sworn testimony of FBI and OPD officers in depositions. It makes up the bulk of the nearly 500 page printed and bound version of this brief available from RSJP (address below). The cost of printing, binding and mailing is about $50. We hope to make selected portions of the Appendix available on this web site as time permits.

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posted 7/14/97