ByUpdated March 05, 2017 at 9:14 AM
None of the four defendants in the second trial of Oregon refuge occupiers are gung-ho to take the witness stand – a big change from the first trial.
That decision has helped moved this trial along at a much faster clip. Closing arguments are tentatively set for Tuesday, the ninth day of trial, so the case could go to the jury early this week.
In the first case, four of the seven defendants took the stand to explain to jurors themselves why they went to the Malheur National Wildlife Refuge last winter.
With the federal conspiracy charge – and a possible sentence of up to six years — resting on what the defendants’ “intent” was when occupying the refuge, their testimony played a key role in the case.
This time, the defendants have relied on the testimony offered by others – Jake Ryan’s mother, Burns residents who met Jason Patrick at the refuge, Duane Ehmer’s acquaintances in Irrigon where he lives – to say what the men told them about their reasons for going to the refuge.
They’re also relying on occupation leader Ammon Bundy’s testimony from last week, when he again explained his motive in seizing the refuge with an armed contingent of followers on Jan. 2, 2016.
Defense attorneys also have introduced social media posts, recorded phone messages and videotaped statements defendants made from the refuge that have the four men describe in their own words why they came.
“I heard someone took over the refuge and I wanted to get the real story,” Ehmer said in an interview with independent broadcaster Pete Santilli. Ehmer said he found “no maniacs running around with guns.”
“I went in and they tried to feed me – nice bunch of people,” Ehmer said. “They just need a solution to this problem.”
The defendants have worked to undercut the prosecution’s argument there was an agreement among occupiers and that they intended to prevent members of the U.S. Fish & Wildlife Service or U.S. Bureau of Land Management from carrying out their work at the refuge through intimidation, threat or force.
Ryan’s mother, Roxsanna Ryan, for example, said her son was inspired by YouTube videos of Bundy and occupation spokesman Robert “LaVoy” Finicum. Their messages about limited government hit a chord, she said.
A man who rented a building to Ehmer for his welding business said Ehmer told him he went to the refuge “because of the treatment of the Hammond family” – father-and-son ranchers Dwight Hammond Jr. and Steven Hammond whose family property abuts the refuge. They were sent back to prison to serve out five-year sentences for setting fire to public land.
A woman who met Patrick at the refuge said, “He just wanted people to read the Constitution and know it for themselves.”
Darryl Thorn’s lawyer, pointed out when questioning Bundy that Bundy hardly knew Thorn. Bundy may have shaken his hand at dinner on the refuge.
Bundy testified that he went to the refuge not thinking of the refuge employees, but intent on shining light on the federal government making “the rural community a guest in their own lands.” He also spoke of his plan to stake claim to the property through the principle of adverse possession. He was acquitted along with his brother, Ryan Bundy, and five others in the first trial that lasted five weeks last fall, but still faces prosecution in Nevada in the 2014 confrontation with federal land agents outside his father’s ranch.
Patrick was to decide this weekend whether to testify, but lawyers for his three co-defendants said it’s unlikely they will.
“The decision whether to put a defendant on the stand is always one of the most difficult decisions for a lawyer to make,” said Kevin Sali, a criminal defense lawyer not associated with the case.
Defense lawyers typically don’t want to expose their clients to a blistering cross-examination, Sali said, which particularly for an untrained witness can do more harm than good. Defendants with a criminal record also could have their testimony quickly impeached by a prosecutor who could introduce their earlier convictions, he said.
Legal observers point out it’s the government’s – not the defendants’ – burden to prove a defendant’s intent at the time of the alleged offense.
Other differences in this second Oregon standoff trial include shorter cross-examinations by defense attorneys, streamlined testimony offered by both sides and fewer drawn-out legal arguments between prosecutors and defense lawyers.
The defense team this time also doesn’t have anyone quite like Ammon Bundy’s lawyer, Marcus Mumford, who seemed to irritate the judge throughout last fall’s trial. Mumford would ask the same questions repeatedly and often objected to the prosecution’s evidence.
And only one of the four defendants in this case is representing himself – Jason Patrick — but he’s allowed his standby lawyer to address jurors, question witnesses and make legal arguments. In the first trial, three defendants represented themselves.
Still, U.S. District Judge Anna J. Brown has expressed frustrations with the pace of the case, admonishing prosecutors one day for not having enough witnesses lined up and doing the same when the defense did the same thing.
“You need to plan to fill the afternoon,” the judge told defense lawyers. “This is your chance to put on your case, so get going.”
Brown has prodded each side not to waste the jury’s time.
Defense lawyers have found themselves in a Catch-22, criticized for not having witnesses ready to call, often after the judge has eliminated many from their pool to avoid repetition.
The judge has been aggressive in this trial about restricting the defense from calling multiple witnesses who would offer the same testimony, what’s called cumulative testimony.
Brown made it clear, for instance, that she wouldn’t allow what happened in the first trial when multiple defense witnesses described again and again how neat and tidy the refuge was kept during the occupation.
“We’re making mini trials out of who’s cooking dinner and who’s stocking shelves,” Brown told defense lawyers last week after some of their witnesses described how they went to the refuge to help out in the kitchen. “These collateral acts about how defendants were trying to get things done is not material as to whether or not there was a conspiracy to impede.”
On Thursday, for example, the defense team had 18 witnesses lined up, but the list was whittled to just eight people to testify, after the judge eliminated many as cumulative, saying there already were enough witnesses who testified about the atmosphere on the refuge during the occupation and she wouldn’t allow anymore.
Defense lawyers, clearly frustrated, also voluntarily cut out witnesses given the judge’s direction. In the case of a possible appeal, the defense lawyers alerted the judge to some witnesses they believed were excluded unfairly.
“The judge won’t let the truth get to the jury,” Ehmer posted on his Facebook page. “Won’t let us have but a small fraction of the testimony.”
Judges have wide discretion in determining which witnesses and how many can testify, Sali said.
“It’s not unusual for judges to adapt and take a different approach in the second phase of a trial, based on what happened in the first,” he added.
Another ruling that didn’t go the defense team’s way came when the judge ruled that prosecutors could recall a couple of refuge employees to the stand during rebuttal this week to challenge testimony from Ammon Bundy and others that anyone was welcome to come to the refuge during the armed occupation.
Knight said such testimony opens the door for prosecutors to ask refuge employees if they felt welcome or feared returning to the refuge while occupiers remained — something prosecutors felt restricted from asking during the first trial when the judge said workers couldn’t talk about their subjective fears in direct testimony.
Defense lawyers objected, contending that the government can’t rely on statements that prosecutors elicited from witnesses during cross-examinations to introduce evidence they were restricted from presenting in their case in chief.
During cross-examination, Knight showed a photo of Bundy standing in front of a large group of occupiers gathered in the fire house at the refuge and asked if employees could have worked there during the takeover.
“They could have come if they wanted to,” Bundy said.
“It’s your testimony the employees were welcome to come in if they wanted to?” Knight asked.
“Absolutely,” Bundy said.
“Thank you,” Knight responded.
During cross-examination of acquitted occupier Ken Medenbach, Knight asked if it was true that refuge workers couldn’t go to work during the occupation.
“They can go to work for the Harney County Resource Center,” said Medenbach, referring to the new name that protesters gave the refuge. “They could have come down and worked, sure, anytime.”
Brown ruled that testimony like that opened the door for prosecutors to recall refuge workers.
“This door has been flung open. It hasn’t just been cracked,” the judge said. “They (prosecutors) had the opportunity in the first trial. They didn’t use it.”
— Maxine Bernstein