One of the trenches dug at the Malheur National Wildlife Refuge during the 41-day occupation of the federal wildlife sanctuary in eastern Oregon last winter. (Archeologist Timothy W. Canaday's report)
By Maxine Bernstein | The Oregonian/OregonLive February 08, 2017 at 3:24 PM
There's no dispute that Oregon standoff defendants Duane Ehmer and Jake Ryan used a government excavator to dig two trenches during the occupation of the Malheur National Wildlife Refuge.
The argument during their trial starting next week will be whether the two "willfully'' broke the law, knowing the excavator and land belonged to the federal government, and that they went ahead anyway.
Prosecutors will play videos taken by David Fry, another refuge occupier, and aerial surveillance videos showing Ehmer and Ryan taking turns using the excavator to dig the trenches on Jan. 27, the day after the arrest of takeover leaders and the police shooting of occupation spokesman Robert "LaVoy" Finicum.
Ehmer dug one trench and then Ryan took over and dug a second one, said Assistant U.S. Attorney Geoffrey Barrow. The videos are to support the charge of depredation of government property, a felony, against each man.
Ehmer, 46, of Irrigin, and Ryan, 28, of Plains, Montana, are among four remaining occupation defendants set for trial. Jury selection begins Tuesday. The others are Jason Patrick, 43, of Bonaire, Georgia, and Darryl Thorn, 32, of Marysville, Washington.
Defense lawyers will counter that the two dug the trenches for protection, suspecting that the FBI planned an attack on the people remaining at the refuge after Finicum's death.
Defense lawyer Jesse Merrithew, representing Ryan, said the men created a "physical barrier'' to "any law enforcement coming in to assault them.''
The initial information that filtered back to the refuge about the circumstances of Finicum's fatal shooting terrified those who remained behind at the refuge, Merrithew said. Ehmer and Ryan had a reasonable belief by the next morning "that law enforcement was out to kill them,'' Merrithew said.
Two state troopers shot Finicum after he fled a traffic stop and ran his truck into a snowbank at a roadblock on the way to a community meeting away from the refuge in John Day. He was fatally shot by police after he got out of the pickup and police say he reached at least twice inside his jacket, where the FBI later found a loaded handgun.
Ehmer and Ryan, who remained at the refuge, saw drones flying overhead and spotted from a high vantage point armored vehicles on the edge of the refuge, Merrithew said.
"It appeared to the people there that a military buildup was happening around them,'' he said.
Assistant U.S. Attorney Ethan Knight called the defense argument absurd, and argued that defendants shouldn't be able to claim self-defense as a legal challenge to the depredation charge.
He also argued that any unsupported opinions offered by the defendants about an imminent FBI raid or attack would prejudice a jury.
If the government can't have refuge employees testify about their fears during the occupation - as U.S. District Judge Anna J. Brown has ordered - yet the court allows defendants to talk about fears of an imagined FBI attack, "that we think is fundamentally unfair,'' Knight argued.
"And that is an issue we believe affected analysis of evidence in the first trial,'' Knight added. A jury acquitted occupation leader Ammon Bundy and six others of all charges in a five-week trial last year.
Finicum's shooting occurred miles away from the Harney County refuge, the prosecutor said. People who remained at the bird sanctuary couldn't have had an objectively reasonable fear of imminent physical harm, Knight said.
But that's "why they did what they did," Merrithew responded.
Brown said defendants will have the chance to challenge the allegation that they "willfully" dug the trenches, meaning they knew their conduct was unlawful and they did it anyway.
She disagreed with Knight's argument attempting to draw comparisons to the court's denial of testimony from refuge employees about their fears.
"Here the government has chosen, chosen a charge that requires willful conduct,'' the judge said. "So their state of mind as to why they did what they did is relevant and admissible.''
The defendants have urged Brown to include in final jury instructions the legal principle of self-defense as an acceptable challenge to the depredation of government property charge. Brown hesitated to do so until all the evidence is heard.
"Whether you get a self-defense instruction remains to be seen,'' she said.
The judge also told the defendants and their lawyers that she won't allow them to argue about what happened in Finicum's shooting.
Ehmer and Ryan, if they choose to testify, can describe how they believed the shooting wasn't justified based on the reports they received at the refuge from others, but they can't say what those reports were.
Finicum's family is planning to file a wrongful death lawsuit against state police and FBI in connection with the shooting.
If Ehmer or Ryan are convicted of the depredation of government property charge, then a separate hearing will be held at a later date regarding any restitution the defendant may be asked to pay the government.
The cost of repairing two trenches and a road, dug last winter on part of the Malheur National Wildlife Refuge was slightly more than $108,000, according to federal authorities.
In other matters, the judge intends to instruct Ammon Bundy, who will be one of the defense witnesses in the case, that he can't talk about his acquittal.
-- Maxine Bernstein
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