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updated February 24, 2017 at 5:16 PM
In between a display of firearms to jurors in the second Oregon standoff trial, a debate about journalistic privilege took center stage in a federal courtroom Friday and drew a larger crowd of spectators than usual.
U.S. District Judge Anna J. Brown granted Oregon Public Broadcasting's motion to quash a subpoena for former reporter John Sepulvado to testify and authenticate his January 2016 recorded interview with Ryan Bundy during the takeover of the Malheur National Wildlife Refuge.
But the judge delayed ruling on whether prosecutors could play a two-minute, 12-second excerpt of the interview as evidence.
Ryan Bundy and Armed militants left the Malheur National Wildlife Refuge they are occupying, to tear down a section of fence on bordering a rancher's property that the U.S. Fish and Wildlife Service installed, January 11, 2016, near Burns, Oregon. The removal will allow the ranchers to graze their cattle on the land. Thomas Boyd/Staff
She suggested that either prosecutors or the defense question Bundy by video or phone from Nevada, where he's in custody, to ask if the interview accurately depicted his views.
In the Jan. 9, 2016, broadcast, Bundy explained why the occupiers took over the refuge: "From this facility right here is where the charges came from to destroy the Hammonds, to throw the Hammonds in prison. It has taken more than a hundred ranchers out to make this place. It is destroying the lives and liberties and properties, property rights anyway, for those around. It's being facilitated from this office. So by being here, it puts a stop to that.''
Bundy was referring to father-and-son Harney County ranchers, Dwight Hammond Jr. and Steven Hammond, ordered to return to prison on Jan. 4, 2016, for setting fire to public land and serve out five-year terms.
The judge said she was surprised by the prosecutors' stance that no journalistic privilege exists to protect a reporter from having to testify in a federal criminal case.
She found otherwise. "I'm starting with the premise that there is a journalist's privilege under federal law,'' she said.
Attorney Duane A. Bosworth, representing Oregon Public Broadcasting and Sepulvado, argued that forced testimony would "chill future sources, even nonconfidential ones'' for Sepulvado and all other OPB reporters. State and federal courts generally recognize a reporter's right not to be compelled to testify or disclose sources and information in court.
Anticipating that the government or defense lawyers would ask Sepulvado about what led to the interview, whether the recording was accurate and what may have dropped out in the editing process, Bosworth said the questioning would amount to an "invasion of news-gathering procedures.''
"Without diminishing the problems posed by the compelled 'authentication,' it is the resulting, exhaustive cross-examination that will inevitably, within defendants' rights, be extraordinarily invasive and create exceptional damage to Mr. Sepulvado and to reporters now and in the future at OPB,'' Bosworth wrote in his motion to quash the subpoena.
Assistant U.S. Attorney Geoffrey Barrow argued that the government wasn't asking Sepulvado to disclose a confidential source.
He said prosecutors would ask five narrow questions: Whether Sepulvado interviewed Bundy during the occupation; where and when the interview took place; whether the full interview or a portion made the broadcast; whether it accurately depicted without additions or omissions, their exchange; and whether Bundy's statements were fairly represented.
Bundy's statements go to the heart of the current case against four defendants on trial, accused of conspiring to prevent federal employees from carrying out their work at the refuge in eastern Oregon through intimidation, threats or force, Barrow said. Bundy's statements to OPB are "directly on point,'' he said.
Sepulvado listened to the hearing by phone from the San Francisco area, where he now works, and live Tweeted the proceeding.
Though the government had issued a subpoena for Sepulvado's testimony, Barrow later told the court his testimony might not be needed if the government is allowed to play the broadcast.
In court Friday, Barrow argued there's no contention that Bundy did not give the interview voluntarily or what was broadcast had not reflected what Bundy had said.
"This exhibit is what it purports to be,'' Barrow told the court. "Nothing would suggest it's not a fair and accurate depiction of Mr. Bundy's statement.''
Defense lawyer Jesse Merrithew strongly disagreed. He argued there were parts of the broadcast when Sepulvado summarized Bundy's comments or left out a question but played Bundy's response.
"This is not an interview,'' Merrithew said. "This is a story that was editorialized by OPB to tell the news from their perspective.''
Neither OPB nor Sepulvado retained his full unedited interview of Bundy, Bosworth said.
Without Sepulvado's testimony, "we don't have an ability to question its fairness and accuracy,'' Merrithew said.
The defense suggested Sepulvado held a bias about the refuge occupation, citing his public Twitter messages.
"He has referred to these defendants as thugs, as terrorists,'' Merrithew said. Sepulvado also expressed disappointment about the acquittals of the Ryan Bundy, brother Ammon Bundy and their five co-defendants in the first trial last fall, he said.
In a Twitter message following the hearing, Sepulvado wrote, "i never called them terrorists. i have very publicly called them thugs.''
Barrow suggested the judge could restrict defense attorneys from trying " to pry into private or investigative processes'' of the reporter.
The judge didn't find that suitable. "I don't know how those questions can be asked of him without interfering with that privilege,'' Brown said, granting OPB's motion to quash the subpoena.
The American Civil Liberties Union of Oregon and the Reporters Committee for Freedom of the Press submitted friend-of-the-court briefs in support of OPB's motion. Their attorneys were present in court but didn't speak.
Oregon's U.S. Attorney Billy Williams also attended the hearing.
"I do think it was a victory for the First Amendment,'' said Morgan Holm, OPB's chief of content. "It would have been completely inappropriate for a journalist to be on the stand in this trial...It is not the purview of the government to get in and look at any news organization's editorial process. We really are accountable ultimately to the public.''
Regarding defense allegations of bias based on Sepulvado's Tweets, Holm said, "John's tweets are going to speak for themselves on that one.''
But Holm added it would have been inappropriate for a reporter to be on a witness stand and questioned about his social media posts, "because that's not the issue in this trial.''
In other developments on the fourth day of the second Oregon standoff trial, prosecutors called FBI agents to the witness stand to show jurors the guns seized from the refuge after the 41-day occupation last winter.
Agent Ronnie Walker wheeled in a gray recycling bin with 22 long guns, the butts jutting out of the bin.
He handed each rifle and shotgun to FBI Agent Nick Vanicelli on the witness stand. Vanicelli identified the type of gun and where his evidence team had found it. The long guns all were seized from the west encampment of the refuge, where four occupiers who aren't on trial holed up before surrendering Feb. 11, 2016.
Vanicelli also identified 11 handguns seized from the west encampment, found stashed in cars, in a makeshift tent, under bedding or on the ground. A 12th pistol -- a 9mm handgun -- was found inside a green Dodge pickup parked by the refuge's old fire building. A silencer and 1,050 rounds of ammunition was with it, Vanicelli testified.
During a cross-examination, defense lawyer Marc Friedman asked, "You've done nothing to establish whether any of the people that are here today are responsible for any of that, correct?''
"Yes,'' Vanicelli replied.
"You can't identify any particular firearm being associated with any of the defendants here, correct?'' Friedman continued.
Vanicelli said that was right.
-- Maxine Bernstein oregonlive.com
