| 28 Oct 2016


Yesterday afternoon word came from the federal courthouse in Portland that jurors had reached verdicts for most of the counts in the trial of seven defendants involved in the occupation of the Malheur National Wildlife Refuge. The defendants were found Not Guilty on all counts, with the exception of a count of theft of government property against Ryan Bundy, on which the jury did not come to a verdict.

I understand from Dr. Roger Roots, a member of FIJA’s Board of Advisors who sat for six weeks next to Ryan Bundy as a paralegal during the trial, as well as other sources, that there was substantial jury nullification outreach going on outside the courthouse. Dr. Roots told me that he saw FIJA’s Fresh Air for Justice brochure in someone’s shirt pocket.

Perhaps because of this effort and other factors, I am starting to see claims that the verdicts were a result of jury nullification. I spoke with Dr. Roots, who has also researched and written extensively on jury nullification, about the verdicts shortly after they were delivered

Were the Not Guilty verdicts that resulted from this trial examples of jury nullification?

Dr. Roots and I both agree that the answer is no. Nonetheless, it is clear, as I will discuss below, that trial by jury was crucial to these verdicts.

The major conspiracy count against all seven defendants charged that the defendants “did knowingly and willfully conspire and agree together and with each other and with persons known and unknown to the Grand Jury to prevent by force, intimidation, and threats, officers and employees” from doing their jobs. According to our esteemed Advisor, Dr. Roots, defendants argued that it was actually the federal government who told its employees not to report to work. They did not impede them.

Additionally, defendants argued that impeding them from doing their jobs was not their intent. Rather, their intent was to protest that the refuge in question did not belong to the federal government. Without the intent to do what the charge accuses them of “knowingly and willfully” doing, the charge was not proved beyond a reasonable doubt.

Update: We also now know from a statement made by Juror #4 that jurors believed the government failed to meet its burden of proof on the conspiracy charges.

Juror 4: Oregon standoff prosecutors failed to prove ‘intent’ to impede federal workers

“It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions or aspirations,” Juror 4 wrote Friday in a lengthy email to The Oregonian/OregonLive.

Juror 4 noted the panel couldn’t simply rely on the defendants’ “defining actions” to convict.

“All 12 agreed that impeding existed, even if as an effect of the occupation,” he wrote.

“But we were not asked to judge on bullets and hurt feelings, rather to decide if any agreement was made with an illegal object in mind,” the Marylhurst student wrote. “It seemed this basic, high standard of proof was lost upon the prosecution throughout.”

“Inference, while possibly compelling, proved to be insulting or inadequate to 12 diversely situated people as a means to convict,” the juror wrote. “The air of triumphalism that the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.”

As to the weapons charges, initially there were two. One was entitled “Possession of Firearms and Dangerous Weapons in Federal Facilities” and the other was entitled “Use and Carry of a Firearm in Relation to a Crime of Violence”.

According to Dr. Roots, that second charge never made it to the jury. Because there was no evidence that any of the defendants used the firearms they possessed, the charges of “Use and Carry of a Firearm in Relation to a Crime of Violence” were dismissed. This is worth mentioning here, however, as it helps illustrate the prosecution’s overzealousness that they couldn’t even get this charge past a judge to be argued in court.

The title of the other charge, “Possession of Firearms and Dangerous Weapons in Federal Facilities”, is misleading, and is, I suspect, the source of many people’s idea that this trial outcome involved jury nullification. It would appear from the title that merely possessing a firearm in a federal facility is the sum total of the offense in question. If the charge was just possessing a firearm on federal property, as it is widely but incorrectly being reported, yes, this would be jury nullification.

But if one looks to the specific language explaining the charge below the title in the indictment, one finds that it contains more elements than are alluded to in the title. This offense specifically entails a requirement that said possession be “with the intent that the firearm or dangerous weapon be used in the commission of a crime”. The jury did not, however, find any of the defendants guilty of any of the other crimes of which they were accused or guilty of intending any other crimes. Therefore, a consistent verdict would require that they also find the defendants Not Guilty on this count as well. No nullification needed.

“I don’t believe it was jury nullification,” says Dr. Roots. “I believe the jury just found that the government had not met its burden of proof. The jury saw through the smokescreen erected by the government. They were being prosecuted for crimes they did not commit.”

That this acquittal was not by way of jury nullification, however, does not diminish the crucial role played by the jury. One can easily imagine a different outcome had this been a bench trial, especially in light of the extreme disappointment expressed by government officials in the wake of the verdicts, and US marshalls’ abusive treatment in tasing and manhandling Ammon Bundy attorney Marcus Mumford.

Jury finds 7 Malheur occupiers not guilty of conspiracy

“While I respect the jury’s decision, I am disappointed. The occupation of the Malheur Refuge by outsiders did not reflect the Oregon way of respectfully working together to resolve differences. I appreciate the due diligence of our federal partners and stand with the communities of Harney County and residents of Burns.”
– Gov. Kate Brown via Twitter

All Seven Defendants Found Not Guilty In Refuge Occupation Trial

“For many weeks, hundreds of law enforcement officers — federal, state, and local — worked around-the-clock to resolve the armed occupation at the Malheur National Wildlife Refuge peacefully,” said Greg Bretzing, special agent in charge of the FBI in Oregon. “Although we are extremely disappointed in the verdict, we respect the court and the role of the jury in the American judicial system.”

“The odds were totally stacked against us,” said Dr. Roots. “It was a hostile environment, and the rules of evidence were uniformly applied against us. The vast majority of motions by the government were approved. The vast majority of motions by the defense were denied.”

The simple fact is that hundreds of tax-paid government employees went up against a rag tag crew of protesters, many of whom represented themselves with standby counsel only, and the government could not get the job done. These verdicts are a result of government incompetence and hubris in overcharging beyond what they could prove, apparently to try and make an example of people rather than to reach a just outcome.

Update: Juror #4 is a business student who has chosen to remain anonymous for the time being, as the trial has negatively impacted his studies and he is not ready for more attention. Nonetheless, his communication with The Oregonian/Oregon Live provided many details about the case, including what seems to be intentional overcharging by the prosecution in order to elicit harsher punishment.

Juror 4: Oregon standoff prosecutors failed to prove ‘intent’ to impede federal workers

The jury, he said, met with Judge Brown after the verdicts were announced and after the U.S. Marshals’ physical confrontation and arrest of Bundy lawyer Marcus Mumford.

He said many of the jurors questioned the judge about why the federal government chose the “conspiracy charge.” He said he learned that a potential alternate charge, such as criminal trespass, wouldn’t have brought as significant a penalty.

The charge of conspiring to impede federal employees from carrying out their official work through intimidation, threat or force brings a maximum sentence of six years in prison.

“We all queried about alternative charges that could stick and were amazed that this ‘conspiracy’ charge seemed the best possible option,” Juror 4 said.

It is NOT the purpose of criminal charges in our legal system to be leveraged as a tool to escalate the consequences for high profile defendants in order to intimidate other citizens from similar behavior. Justice requires that any penalty imposed be commensurate with any offense committed—NOT that the stakes be artificially inflated by malicious overcharging to bully defendants out of their Constitutional right to trial by jury or to deter other people’s possible future behavior.

Even those who don’t agree with what the Bundys and others actually did should keep in mind two things:
1. These defendants were WAY overcharged. Jurors SHOULD acquit when the government fails to prove its case beyond a reasonable doubt for the charges it levels. This overcharging is totally inappropriate, whether it is against the Bundys, or Marissa Alexander, or Aaron Swartz, or anyone else, and jurors can discourage it with their very appropriate Not Guilty verdicts.

2. Even when we think that someone has done something wrong, we have got to get out of this mentality of going from zero to years in prison, or in the case of LaVoy Finicum who will never get his day in court, zero to a death penalty, anytime someone does anything wrong. I don’t care if they’re occupying a refuge or an intersection. We should not automatically jump to incarceration or death for every offense.

Jurors have the power to rein in government legal officials who are out of control in overzealously prosecuting anyone for anything, with charges stacked so high as to strain credulity beyond belief. The two most powerful words in any courtroom are: Not Guilty.