The Oregonian/OregonLive - 01-06-2017
The federal court will soon summon 1,000 prospective jurors for the second conspiracy trial stemming from the takeover of the Malheur National
Wildlife Refuge. They'll be asked to complete written jury questionnaires that are due back to the court by Jan. 25.
The trial for seven remaining defendants is set for Feb. 14.
The court must decide whether new misdemeanor charges filed against the defendants will be heard by a jury or the judge.
Assistant U.S. Attorney Ethan Knight said legally, the defendants facing Class B misdemeanors - including trespass, destruction or removal of government property and tampering with vehicles and equipment - don't have a right to a trial by jury. Those charges typically go before the court.
Defense lawyers for the seven defendants set for trial next month expect to argue that a jury consider all the charges - the misdemeanor charges as well as the felony charges of conspiring to prevent employees from the U.S. Fish and Wildlife Service or U.S. Bureau of Land Management from carrying out their work at the refuge and possession of a firearm in a federal facility.
The court could, however, have a jury deliberate on the federal charges, and the judge could hear testimony on the misdemeanor charges during the jury's deliberations.
If someone is taken into custody on a criminal charge, as these defendants initially were, they should have the right to a jury trial, Oregon federal public defender Lisa Hay said. It wouldn't seem reasonable to deprive these defendants of a jury trial on the misdemeanor charges since a jury is being convened anyway.
U.S. District Judge Anna J. Brown will make the call.
Both sides have until Jan. 13 to file pre-trial motions regarding the new misdemeanor charges, and oral argument is expected to be held at the next status hearing Jan. 20. Pretrial conferences will be held in early February.
Headed for trial next month are Jason Patrick of Bonaire, Georgia; Duane Leo Ehmer of Irrigon; Dylan Anderson of Provo, Utah; Sean Anderson and his wife, Sandra Lynn Anderson, of Riggins, Idaho; Darryl W. Thorn of Marysville, Washington; and Jake Ryan of Plains, Montana.
Patrick, Ehmer and Thorn were in court Friday. Their co-defendants waived their right to appear and were represented by their lawyers.
The misdemeanor charges were added this year against the remaining defendants, following a jury's acquittal on Oct. 27 of occupation leaders Ammon Bundy, his brother Ryan Bundy and five other defendants on federal conspiracy, weapons and theft of government property charges after a five-week trial.
The judge directed defense lawyers in the upcoming case to file their position on a partial jury sequestration order, which was done in the initial trial. Jurors each morning gathered off-site and were driven to the federal courthouse "to insulate'' and protect them from outside information and protests outside the building, the judge said.
She also asked lawyers to weigh in on her desire to refer only to jurors by numbers throughout jury selection and the trial.
Defense lawyer Michele Kohler, representing Ehmer, urged the court to allow the attorneys in the case to participate in the questioning of prospective jurors, but the judge said she would not. Brown, though, said that she'd be open to improving the manner in which attorneys' questions are forwarded to her for consideration for use during voir dire.
Several defendants are expected to file motions for the court to suppress statements they made to law enforcement.
Jake Ryan, for example, wants the court to suppress what he told the FBI when he turned himself in on Feb. 12 to the Sanders County Sheriff's Office in Montana.
Ryan thought the FBI was granting him immunity in exchange for his surrender on Jan. 27, according to his lawyer Jesse Merrithew.
His lawyer contends federal agents "tricked him into meeting with them,'' by falsely telling him they wanted to return his property to him. He said FBI agents didn't read Ryan his Miranda rights, and didn't record or allow Ryan or his father to record their conversation.
The night that state police shot and killed occupation spokesman Robert "LaVoy" Finicum, after he drove away from a police stop on Jan. 26, FBI negotiators attempted to call anyone they knew who remained at the refuge to encourage them to leave the property immediately, Merrithew wrote in the motion.
Later that evening, an agent who said his name was "Chris'' reached Ryan at the refuge, then one of five remaining occupiers.
The agent told Ryan repeatedly that he was free to go, was not going to be charged with a crime and could keep his guns and take them with him. Within a couple of hours, Ryan left, approaching a roadblock unarmed. He left his firearms and belongings behind. Ryan was detained at the roadblock for some time before he was released and returned home to Plains, Montana.
Once home, Ryan reached out to the local sheriff's office to try to get the sheriff to help him recover his firearms left at the refuge. Sheriff Tom Rummell contacted the FBI, and set up a meeting between Ryan, his parents and FBI agents in Thompson Falls, Montana. Ryan's lawyer wants to suppress the statements Ryan made to the federal agents during that interview, pre-arrest.
"Believing that the purpose of the interview was to get his property back, and that he would not be charged with a crime, Mr. Ryan agreed to answer the FBI's questions,'' Merrithew wrote in his motion. "During this interview, he made statements that the government may seek to use against him in his trial. ''
-- Maxine Bernstein