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Brand ‘Mr. Shofar’ Thornton sounding his horn
What was the meaning of occupier Brand Thornton’s blowing of the shofar when he accompanied the first convoy of men who seized the Malheur National Wildlife Refuge on Jan. 2, 2016?
One prosecution witness said the sounding of the ram’s horn meant an “all clear” signal after protesters went building to building, armed with rifles, to check if anybody was on the federal property. Another prosecution witness called it a symbol of battle.
But defense lawyer Andrew Kohlmetz said he wanted jurors to hear Thornton’s testimony — that the shofar blowing is just part of Thornton’s “religious ministry.”
Kohlmetz, though, learned this week that Thornton, who has never been charged in the case, would invoke his Fifth Amendment right not to incriminate himself if called as a defense witness in the second Oregon standoff trial.
So the defense instead suggested reading to jurors his testimony from last fall’s trial of Ammon Bundy and co-defendants.
Prosecutors didn’t want any of Thornton’s testimony allowed, contending he lied under oath and his earlier statements in court are unreliable.
Thornton testified on two separate days for the defense in the Bundy trial last year. Before his second time taking the stand, U.S. District Judge Anna J. Brown asked him under oath whether he had been in court and observed the trial proceedings after his initial testimony on Oct. 3. He said he had on five or six occasions.
Brown also asked Thornton whether he had posted online any of his observations from the trial proceedings he watched, and he said he hadn’t, according to Assistant U.S. Attorney Geoffrey Barrow. He was allowed to testify again for the defense on Oct. 17.
But prosecutors now note that Thornton posted his reaction on Facebook to court testimony on Oct. 7 and Oct. 11.
“If the Court were to permit the defense to read Mr. Thornton’s transcript, the government will seek to introduce evidence to impeach Mr. Thornton, including the fact that he previously lied to this Court,” Barrow wrote in a motion.
Kohlmetz, defendant Jason Patrick’s standby attorney, countered that prosecutors had a chance during the first trial to cross-examine Thornton on the matter but didn’t. Kohlmetz also argued that Thornton’s statements to the court last fall don’t rise to criminal perjury.
Last year, Thornton testified that he didn’t bring a gun to the refuge, but saw others carrying them by their sides, walking through the property, checking doors during that initial sweep. At some point, someone found a set of keys, he testified. He said he stayed at the refuge from Jan. 2 to Jan. 25, 2016.
Thornton, who often blows the shofar during or after court sessions on a corner across from the federal courthouse, told The Oregonian/OregonLive that when he answered the judge’s question about posts during the last trial he didn’t realize she was talking about social media.
He said the only reason he decided he would invoke his Fifth Amendment right not to testify now was because he believed the defense would be able to introduce his testimony from last year’s trial.
Brown on Thursday asked for a transcript of Thornton’s earlier testimony, at one point referring to him as “Mr. Shofar.”
“What is it about Thornton’s testimony that’s necessary?” the judge asked.
Kohlmetz said he wanted to counter the interpretations by prosecution witnesses about why Thornton sounded the horn.
Assistant U.S. Attorney Ethan Knight argued the testimony “is not material.”
By Thursday afternoon, after having read the transcript of Thornton’s testimony last year, the judge said she found it “pretty limited, pretty innocuous.”
“None of this is particularly controversial. None of this seems worth a battle that could be problematic on appeal,” Brown told prosecutors and defense lawyers.
With that, Assistant U.S. Attorney Ethan Knight withdrew the government’s opposition to it coming in as evidence. Part of Thornton’s testimony from last year’s trial will be read to jurors when the trial proceeds on Monday.
Jason S. Patrick, 43, of Bonaire, Georgia, Duane L. Ehmer, 46, of Irrigon, Oregon, Darryl W. Thorn, 32, of Marysville, Washington, and Jake E. Ryan, 28, of Plains, Montana, face conspiracy and other felony charges as well as misdemeanor charges including trespassing in the 41-day refuge occupation over federal control of public land.
In other developments Thursday, the seventh day of trial:
— Defense lawyers ran through their witnesses for the day by noon. The judge had excluded a number of witnesses because either their testimony was considered irrelevant or cumulative. The judge said she didn’t want to hear additional refuge visitors describe the atmosphere during the occupation or repetitive testimony about the character of the defendants.
Kohlmetz said the defense started with a list of 18 witnesses for Thursday. Eight ended up being called. Some were eliminated by the judge; others by defense lawyers based on the judge’s advisement.
— Defendant Jason Patrick, who has been warned by the court in the past that he must arrive to court on time, showed up to court 10 minutes late. When he arrived at 8:25 a.m., the judge asked him what had happened and a tense exchange ensued.
“TriMet was late due to some maintenance issue,” Patrick replied.
“Here’s the point. Court starts at 8:15 a.m. You can’t just wander in,” the judge said, adding that he must alert someone he’s on his way.
“I don’t have the means,” he said.
“I don’t believe that,” Brown told him.
Although she had threatened to fine him in the past for coming late, the judge gave him one more chance. If it happens again, she told him, she’ll impose a $100 fine.
“I’ll try to find a carrier pigeon, your honor. I don’t have the means,” he said, sitting beside his standby lawyer. “Whether you believe the truth or not, it doesn’t matter.”
“Are you finished?” Brown inquired.
“I’m finished when you’re finished, your honor,” he said.
“When you’re late,” Brown told him, he must find a way to inform the court.
“I’ll build a train,” he quipped.
A short time later, the judge was informed the jurors would be arriving a little late.
— Nevada resident Barbara Berg testified that she drove to the refuge the night of Jan. 26, 2016, after learning about the arrest of Ammon Bundy and fatal police shooting of occupation spokesman Robert “LaVoy” Finicum on a highway outside of Burns.
She arrived about 11:30 p.m. at The Narrows RV park and walked into the refuge property with her German Shepherd, she said. She wanted to try to convince people to leave and avoid being harmed, she said. On. Jan. 27, 2016, she said she saw Patrick walk out of the refuge.
“He was almost to The Narrows when I seen him in my headlights,” she said. She gave him a ride from there to the FBI checkpoint.
She said she convinced defendant Jake Ryan to leave, driving him first to The Narrows. There, she let him leave firearms in her trailer that he had taken with him. She drove him to the checkpoint early on Jan. 28, 2016. A video was played for jurors of Ryan walking in the roadway, his hands in the air, toward two flood lights at the FBI checkpoint.
— Patrick’s mother, Bickie Louise Patrick, in brief testimony said Jason’s father died when he was 12, and “it affects him deeply.” His father was a Vietnam veteran who died of cancer, suspected of having resulted from his exposure to Agent Orange chemicals.
— An arrest warrant for suspected FBI informant Will Kullman is no longer needed as he agreed to testify in court for the defense Monday, defense lawyer Jesse Merrithew said.
— The defense is expected to rest its case by Monday afternoon. Closing arguments are anticipated to start Tuesday.
— Maxine Bernstein
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503-221-8212
@maxoregonian
