By Maxine Bernstein | The Oregonian/OregonLive
February 07, 2017 at 4:16 PM
Prosecutors and defense lawyers working on the second Oregon standoff trial have begun the painstaking process of whittling down prospective jurors based on their answers to lengthy questionnaires designed to gauge their exposure to the first trial, familiarity with the current defendants and opinions on the First and Second Amendments.
The court plans to seat 12 jurors and four alternates for the trial set to start next week in last winter's armed takeover of the Malheur National Wildlife Refuge. A thousand prospective jurors each received a questionnaire to complete and send back, though about 200 didn't return them.
"It's quite unfortunate,'' U.S. District Judge Anna J. Brown said.
Jury selection will begin next Tuesday in the case, with groups of 25 jurors called at a time to answer questions. Opening statements may start Feb. 21, the day after the Presidents Day holiday, and prosecutors anticipate it will take five days to present their case.
Four defendants -- Jason Patrick, Duane Ehmer, Jake Ryan and Darryl Thorn -- have pleaded not guilty to a felony charge of conspiring to impede federal employees from doing their work at the federal refuge during the 41-day refuge occupation. Several also face charges of possessing a firearm in a federal facility and depredation of government property. Additional misdemeanor charges, including trespass and removal of government property, are expected to be heard by the judge.
The misdemeanor charges were filed after the acquittal of occupation leaders Ammon Bundy, brother Ryan Bundy and five others on federal conspiracy and weapons charges last fall.
Tuesday morning, prosecutors and defense lawyers agreed to excuse about 35 prospective jurors for cause, finding their answers to the questionnaires made it clear they couldn't serve as impartial jurors because of their strong opinions.
Among the answers that got jurors tossed from the pool:
One wrote that the occupation of federal land is illegal and the "right-wing gun-toting haters'' should be held accountable. Another wrote: "Defendants are idiots. ... Should serve time, duh.'' Another said: "I am not impartial. They are guilty!"
Two employees from the U.S. Fish & Wildlife Service, the agency that operates the eastern Oregon refuge, were excused for cause. One wrote about frustration over the damage caused at the Harney County refuge. Another said the job would make it difficult to be impartial.
Then it was up to the judge whether to accept requests by prosecutors or defense attorneys to dismiss jurors for cause. Another 20 or so people were excused during this round.
Assistant U.S. Attorney Ethan Knight, for example, urged the judge to dismiss a juror who noted "personal contact'' with lawyer J. Morgan Philpot, one of Ammon Bundy's attorneys from the first trial.
Defense lawyer Jesse Merrithew, representing Jake Ryan, said Philpot won't be present or involved in this trial so he didn't think that was sufficient reason.
The judge got rid of that juror.
Merrithew asked to excuse another juror based on his answer to a question about following the court's order not to discuss the case with anyone during the trial.
"No, I would probably discuss it with my wife, no one else,'' the juror wrote.
Knight suggested the juror be allowed to come to court for jury selection next week and be asked further questions. If anything, Knight argued, the juror was "just being honest.''
Merrithew countered that it's likely the juror's written response to the question was the most forthright and might change once he's in a courtroom, facing the judge. The judge found cause to excuse the juror.
Prosecutors successfully asked to dismiss one prospective juror who wrote about "negative interactions" with the U.S. Bureau of Land Management and posted comments on social media after the Jan. 26, 2016, fatal shooting by state police of occupation spokesman Robert "LaVoy" Finicum after he sped away from a police stop.
The defense urged the dismissal of a juror who, asked about the Second Amendment right to bear arms, wrote that people shouldn't have the right to own military-style weapons. The juror was excused.
A number also were excused for obvious hardship: A single mother who said she needs to take her children to school and a juror who wrote: "I fall asleep if I sit a long period of time.''
Then there were others whose answers weren't so obvious.
The defense asked to toss a juror who wrote that he or she doesn't have sympathy for the armed takeover and is uncomfortable around people who openly carry guns. But the same person wrote that he or she could keep an open mind, believes in due process and didn't know all the facts surrounding the occupation.
The judge decided to keep that juror in the pool to question further in court. "Seems like a close one,'' Brown said.
Prosecutors and defense lawyers continued to assess jurors Tuesday afternoon.
The judge expects to call into court next week about 100 prospective jurors over the first two days of jury selection. She hopes to have the group reduced to 44 qualified jurors, before allowing prosecutors and defense lawyers to make what's called peremptory challenges, meaning they can reject a certain juror without giving a reason. Prosecutors will have nine such challenges; the four defendants can reject 15 in total.
The judge indicated that she plans to allow Ammon Bundy and Ryan Payne, both in custody in Nevada where they await federal prosecution in the 2014 armed standoff with federal agents near the Bundy Ranch, to come to Oregon to testify for the defense in the trial.
Ammon Bundy is expected to be called as one of the first defense witnesses, said Andrew Kohlmetz, standby attorney for Jason Patrick. Kohlmetz had argued for Bundy and Payne to testify in person, and not by video, as the judge had suggested.
Kohlmetz called Bundy "the central figure of these events.''
"Having Mr. Bundy present in the courtroom would be a far more effective presentation for the defense,'' Kohlmetz had argued.
Payne pleaded guilty to a federal conspiracy charge in the refuge case. He tried to withdraw his plea, but the judge denied his request. Ammon Bundy was acquitted of all charges.
At the start of the first day of pretrial hearings in the case Tuesday, Ehmer huddled with his co-defendants by the defense table where Thorn sat. Thorn, at the last minute, withdraw from a plea agreement.
"For me personally,'' Ehmer said loudly, "they didn't offer me, and I wouldn't have taken it anyway because to me, this whole situation pisses me off.''
When the judge entered the courtroom for the start of the hearing, she noticed that Patrick didn't rise from his chair as all his co-defendants, all the lawyers and members of the gallery did.
"Is there a reason you didn't stand?'' the judge asked him. "Just conform to the behaviors,'' of everyone else, the judge instructed him.
"I'll stand for the jury,'' Patrick told her.
"Ok, we'll leave it at that,'' Brown said.
The judge didn't call out Thorn, who had his head down on his desk through most of the daylong hearing.
-- Maxine Bernstein
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@maxoregonian
