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A federal jury handed a rare courtroom defeat to the FBI on Tuesday when it decided the bureau and the city of Oakland, Calif., violated the rights of two environmentalists during a 1990 bomb investigation and awarded them $4.4 million. Earth First activists Judi Bari — who died in 1997 of cancer — and Darryl Cherney had accused the Oakland Police Department and the FBI of violating their First and Fourth Amendment rights when authorities investigated a car bombing that shattered Bari’s pelvis and hospitalized Cherney with less severe wounds. Investigators said that the environmentalists were hurt by a bomb they planned to use in environmental protests, but charges were never filed. Cherney, Earth First members and the plaintiffs’ legal team — which has litigated the case for more than a decade — erupted in cheers as they emerged from the Oakland federal courthouse. J. Tony Serra, a criminal defense attorney who took on Estate of Judi Bari v. Doyle, C91-1057, pro bono, walked through the courthouse doors after the verdict with his thumbs down, chanting “FBI! FBI!” “The FBI lied over and over again about Judi Bari and this case,” said Cherney, who will get $1.5 million of the award. He said he will use the money to continue his environmental activism. Bari’s will bequeathed half of her $2.9 million to the Redwood Justice Fund, a nonprofit group that supported the litigation. The verdict closes a chapter of a case that has become a political platform for the anti-logging movement. The 12-year-old struggle between environmental activists, the Justice Department and the city of Oakland was fought in the federal trial court and the 9th U.S. Circuit Court of Appeals for years before the trial finally began in April. After a more than five-week trial, the jury deliberated for 17 days before reaching a partial verdict. And the verdict sends a strong message about free speech. Bari and Cherney were awarded $2.1 million and $1.3 million respectively on their First Amendment claims. The jury decided that law enforcement agencies wrongfully arrested Bari and searched her house in May 1990. A second search in June 1990 was legal, jurors said. Jurors deadlocked on whether Cherney’s arrest was illegal, but they said that his Fourth Amendment rights were violated when his home was searched in May 1990. In one tepid victory for the defense, jurors unanimously rejected the plaintiffs’ claim that the FBI and the Oakland police conspired to persecute the pair. The jury blamed both the FBI and Oakland police for various rights violations, but came down hardest on defendants who supervised the FBI or police efforts, said plaintiffs’ attorney Dennis Cunningham. As U.S. District Court Judge Claudia Wilken of the Northern District of California read the details from the 21-page verdict form, the packed courtroom was silent as Earth First supporters, reporters and the litigants followed along on their own copies. As the damages were read, R. Joseph Sher, the FBI agents’ Department of Justice attorney, turned a deep shade of pink. Maria Bee and William Simmons, both from the Oakland city attorney’s office, stared ahead in shocked silence. Later, Bee said, “I was surprised. I was disappointed. We still feel that they did the investigation lawfully.” The only defendant present, Oakland police officer Robert Chenault, slumped in his chair with his head propped up on his fist, his eyes closed. People in the plaintiffs’ group beamed at the jury and some silently mouthed, “Thank you.” A square box wrapped in a small straw bag appeared on the plaintiffs’ table Tuesday, and an Earth First supporter later said the container held Bari’s remains. Sher, a veteran Department of Justice attorney, deflected questions. “I have to look at the verdict to see how it was decided and how it breaks out,” he said. The FBI’s portion of the damage total is approximately $2.4 million. According to Earth First, Oakland’s share of the damages is a little over $2 million. The city indemnifies officers for legal action, but Bee said the City Council has to vote on whether to pay the punitive damages. Cherney and the plaintiffs’ attorneys said the court victory has more significance since the FBI has been given broader powers since Sept. 11. “There is still an FBI out there that is running roughshod over people’s rights,” Cherney said. There may be more legal fireworks to come. It’s likely that the FBI and Oakland will appeal the verdicts. And the plaintiffs plan to appeal early court decisions that removed some FBI agents from the lawsuit, Cherney said. The plaintiffs’ legal team — San Francisco civil rights attorney Cunningham, Berkeley, Calif., solo Robert Bloom, Oakland attorney William Simpich Jr., and Serra — plans to seek attorney fees. Cherney estimated that $900,000 has been spent pursuing the case over the years. There may also be litigation because jurors observed a May 24 Earth First rally as they were leaving the courthouse. Wilken polled them after the verdict, and they told her they didn’t hear what the speakers said and the rally didn’t affect their deliberations. Wilken, however, told them not to talk about the case after the trial because legal action may spring from that incident. The case had dramatic moments when plaintiffs’ lawyers sparred with investigators named in the lawsuit. Tempers flared as attorneys argued whether investigators made missteps such as ignoring evidence that the bomb was hidden under the driver’s seat and was not in plain view. During Cherney’s testimony he serenaded the courtroom with a protest song called “Spike a Tree for Jesus.” The plaintiffs’ lawyers later apologized for Cherney’s performance. The courtroom theatrics were the backdrop for a type of case that rarely goes to trial. U.S. Supreme Court decisions, such as 1982′s Harlow v. Fitzgerald, 457 U.S. 800, have made it hard for plaintiffs to pierce the immunity that shields federal agencies, said Douglas Mirell, a partner at Loeb & Loeb in Century City, Calif. Court decisions have also made it difficult for attorneys to collect fees if there is a judgment. Plus, it takes years for the cases to make it to trial, said Mirell. He represented Frank Wilkinson, an activist who worked to abolish the Communist-hunting House Committee on Un-American Activities, who filed suit against the FBI in 1980. “There aren’t many lawyers out there who are [financially] prepared to take on those cases pro bono or on contingency,” Mirell said. Serra said that he heard that the trial was the “third jury trial against the FBI, ever.” The jury “took the high road,” Serra said. “They understood that this was a case of FBI falsity, FBI perjury and FBI coverup.”

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