By February 02, 2017
U.S. District Judge Anna J. Brown shouldn't preside over the trial of defendants facing misdemeanor charges in the takeover of the Malheur National Wildlife Refuge because she met privately with jurors who acquitted Ammon Bundy after the first Oregon standoff trial last fall, one of the defendants argues in a motion filed late Wednesday.
"The Court not only answered questions the jurors had, but also discussed the merits of the case with specific reference to potential misdemeanor offenses that could have been used by the government, including trespass and the perceived inadequacy of a sentence to the government'' if it had pursued such a charge, Duane Ehmer's lawyer, Michele Kohler, wrote in a motion to recuse the judge.
Kohler argued that Brown also invited jurors' "advice for the prosecution'' during her private meeting that lasted more than an hour after the Oct. 27 acquittals of Bundy, his older brother, Ryan Bundy, and five other defendants on felony conspiracy and weapons charges.
Twenty-six people were indicted on conspiracy and weapons charges in the 41-day occupation of the federal wildlife sanctuary in eastern Oregon last year. Eleven have pleaded guilty. Seven were acquitted last fall of felony charges. Seven, who face both felony and new misdemeanor charges, are set for trial Feb. 14. Charges were dropped against one person.
Kohler's motion follows a recent ruling by Brown that the remaining seven defendants don't have a right to a jury trial on the new misdemeanor allegations. The judge ruled that she would hold a bench trial on those charges once a jury is deliberating on the felony charges of conspiracy to impede federal workers, possession of weapons in a federal facility and depredation of government property.
It's not unusual for judges to meet with jurors after a trial ends to answer questions they may have and personally thank them for their service.
After the acquittals in last fall's five-week trial before Brown, the jurors met with the judge, according to Juror No. 4, who spoke to The Oregonian/OregonLive after the case concluded.
Ehmer's lawyer argues that the judge's discussions with the jurors should disqualify her from serving as the arbiter of the misdemeanor charges, which include trespass, tampering with vehicles or equipment and destruction of government property.
"The defendant believes that the actions of the Court in discussing the merits of potential misdemeanor offenses with the discharged jurors ... calls into question it's ability to be impartial,'' Kohler wrote.
Brown, in her ruling late last month that the remaining defendants don't have a right to a jury trial on the less serious charges, also wrote that she doesn't find any reason she couldn't preside over the misdemeanor prosecutions.
"This Judicial Officer is not aware of any basis in the record for recusal, and does not find there is anything about presiding over this case to date that would necessitate disqualification,'' Brown wrote.
Yet Brown said she'll refer any request for her recusal to Chief Judge Michael W. Mosman for consideration, who will decide if he'll need further legal filings or oral argument on the matter before issuing a decision.
-- Maxine BernsteinCase 3-16-cr-00051-BR Document 1804 Filed 02:01:17 Page 1 - 5