As they prepare for a second trial stemming from the occupation of the Malheur National Wildlife Refuge, prosecutors want the court to reconsider and let refuge employees and Harney County residents testify about the fears they felt as a result of the armed seizure of the refuge.
Defendants, in turn, want the court to allow them to use the principle of adverse possession - staking claim to a property to declare it as their own - as a defense to the new misdemeanor trespass charge they face.
The defendants also will ask a judge to restrict prosecutors from parading dozens of firearms into the courtroom during trial if the firearms haven't been traced specifically to the defendants charged, according to court documents filed Wednesday.
Seven defendants are set for trial on Feb. 14. Occupation leader Ammon Bundy, his brother Ryan Bundy and five other co-defendants were acquitted on Oct. 27 of federal conspiracy, weapons and other charges stemming from the 41-day occupation of the federal wildlife refuge in southeastern Oregon.
Both prosecutors and defense lawyers clearly have closely examined what was and wasn't allowed as evidence during the first trial, and are strategically trying to address their perceived weaknesses before the second trial starts.
The defendants on trial next month face additional misdemeanor charges, including trespass, tampering with government vehicles or equipment, and destruction or removal of government property, as well as the felony charge of conspiring to impede federal employees from doing their job at the refuge through force, intimidation or threats. Six of the seven also are charged with the felony of possessing a firearm in a federal facility.
The defendants on 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.
Legal experts say prosecutors were hampered during the first trial because of the court ruling that the "subjective fears'' of refuge employees and local residents were "irrelevant,'' and couldn't be shared with jurors.
As a result, refuge employees dryly testified about disorganized files and the mess they found when they returned to their offices after the 41-day occupation ended.
"The government will seek to revisit this issue with additional case law to support the relevant of this evidence to defendants' intent,'' according to a joint status report filed in U.S. District Court in Portland on Wednesday.
Further pre-trial motions are anticipated.
Defendants will argue that the trespass charge be dismissed as "over broad,'' and in violation of their right to due process, and that the new misdemeanor charges were filed late and in violation of their right to a speedy trial. Prosecutors will object.
Further, defense lawyers want the court to allow as evidence at the next trial the fact that seven co-defendants were acquitted of the federal charge of conspiring to impede employees from the U.S. Fish and Wildlife Service or the U.S. Bureau of Land Management through intimidation, threats or force, as the current defendants stand charged.
They don't want the court to allow prosecutors to bring in the 22 long guns and 12 handguns seized from the refuge, if prosecutors can't directly tie defendants to the guns.
"Defendants wish to re-raise this issue in light of the acquittal of seven of the alleged co-conspirators, and the government's mid-trial stipulation that nine of the individuals on the refuge were not co-conspirators but were in fact government informants,'' defense lawyer Jesse Merrithew wrote in the latest joint case status report.
Several defendants will ask the court to suppress statements they made to law enforcement at the time of their arrest.
Defendant Jake Ryan also will ask the court to exclude as evidence the circumstances of his arrest in Clark County, as "irrelevant'' and prejudicial. Ryan was a fugitive for months before he was caught April 5 hiding in a stranger's shed in rural Clark County with a loaded .45-caliber handgun and several knives.
Ryan and Ehmer, also charged with depredation of government property in their alleged digging of trenches on the refuge, will argue that they're not guilty, since they believed the land they moved "was not the lawful property of the United States government,'' and therefore, they did not act in "willful violation'' of the statute but acted in self-defense, according to court documents.
Defense lawyers also are asking that prosecutors provide a reasonable estimate of how long their case will take to present to jurors so the defense will be ready when necessary to call witnesses and present evidence and avoid the delays and disorganization that occurred with the defense case in the first trial.
The next status hearing for the seven remaining defendants is at 9 a.m. on Friday before U.S. District Judge Anna J. Brown.
-- Maxine Bernstein