By Maxine Bernstein | The Oregonian/OregonLive Updated March 10, 2017 at 10:12 PM
A jury returned guilty verdicts Friday on at least one felony charge against each of the last four defendants in the armed occupation of the Malheur National Wildlife Refuge – a victory for prosecutors who took a devastating blow at the first trial.
Defense lawyers immediately decried the convictions of the more minor players as a miscarriage of justice when the ringleaders got off last fall.
This time, a federal jury determined Jason Patrick, described by prosecutors as one of the organizers of the armed occupation, and Darryl Thorn, who worked on a security detail and did guard duty, were guilty of conspiracy.
Jurors found they had prevented employees with the U.S. Fish & Wildlife Service or U.S. Bureau of Land Management from doing their work at the eastern Oregon refuge through intimidation, threat or force.
They acquitted the other two men on trial, Duane Ehmer and Jake Ryan, of the conspiracy count, but convicted both of willfully damaging federal property by using a refuge excavator to dig two deep trenches on the high desert expanse.
The jury also found Thorn guilty of possessing guns in a federal facility, but acquitted Patrick and Ryan of the same charge.
The seven women and five men deliberated for two and a half days after a 10-day trial that proved much less dramatic than the first trial last fall when takeover leader Ammon Bundy and six other key occupiers won acquittals.
But this one had its moments.
Patrick, who said it’s turkey-hunting season where he lives in Georgia, made turkey calls in the courtroom before the judge and jury entered to announce the verdicts, prompting a deputy U.S. marshal to tell him to cut it out.
“So, who’s getting Tased?” blurted Matthew Schindler, a defense lawyer from the first trial who sat in the back of the courtroom, referencing the bizarre end to last fall’s trial when marshals tackled and used a Taser stun gun on Ammon Bundy’s lawyer.
U.S. District Judge Anna J. Brown ordered defendants, their lawyers and spectators not to react when the verdicts came in – “not audibly, not in behavior, no reaction” — or they would be removed.
Oregon’s U.S. Attorney Billy J. Williams declared “justice has been served” and said his office didn’t prosecute the defendants for their beliefs, but for their conduct.
“We cannot have people taking over government offices and facilities at the end of a gun and expect no consequence,” he said. “The rule of law matters. Taking up arms because you do not like how things are done can never be accepted as a lawful way to protest. … A voice for change and one’s vote are more effective than threats and an AR-15.”
That the government snared some of the bit players versus the occupation’s instigators wasn’t lost on the defendants, said their lawyers and legal observers.
“Just about everybody would agree if you look at this from the perspective of overall justice, it’s kind of hard to square an acquittal in the first case and convictions in this second case,” said Kevin Sali, a Portland-area criminal defense lawyer not tied to the case.
“There is baked into our justice system a lot of imperfection and unpredictability. It’s an unfortunate but accepted fact that it doesn’t always produce results that are correct or just or fair.”
Defense lawyers, deflated but vowing to appeal, complained about the judge’s restrictions on the number of witnesses they could call, what they perceived as the government’s unfair offer of plea deals to some defendants but not others and the fact that the jury wasn’t allowed to consider misdemeanor charges pending against the defendants. The judge will issue her own verdicts on the misdemeanors, ranging from trespassing to tampering with equipment.
Patrick said he believed if jurors had known he was also facing misdemeanor charges, they wouldn’t have convicted him of the felony.
“They don’t know the truth, the whole truth, and nothing but the truth,” he said.
Defense lawyer Jesse Merrithew, who represents Ryan, said he was disappointed that the jury convicted Ryan and Ehmer of depredation of government property, a felony that could bring up to six years in prison.
He also called it blatantly unfair that prosecutors didn’t offer Ryan a plea deal, but did to occupier Sean Anderson, who appeared in a video to fire into the air at an FBI surveillance plane, helped set up the west encampment at the refuge and didn’t surrender until the final day on Feb. 11, 2016. Ryan had no criminal record and arrived at the refuge in the middle of January and left on Jan. 27, 2016.
“I don’t know how you justify a more harsh sentence for Jake Ryan who dug a hole,” Merrithew said. “They don’t seem to care who they hold accountable.”
Ryan and Ehmer built the trenches because they thought the FBI planned to raid the refuge, said Merrithew and Ehmer’s lawyer, Michele Kohler.
“They were simply terrified, trying to do what they had to do to survive,” Merrithew said.
Kohler said she believed the judge unfairly restricted the number of defense witnesses to avoid repetitive testimony.
“I feel I failed in presenting more witnesses who could have talked about (Ehmer’s) mindset, but at the same time when you have Judge Brown breathing down on you ‘No, it’s cumulative!’ you cut your case down,” she said.
There’s no doubt prosecutors sharpened their case this time, zeroing in on how the actions of the men on trial revealed their intent to intimidate federal workers and explaining that jurors didn’t need to see a formal written or verbal agreement to find a conspiracy.
“We did make some strategic changes based on the way the evidence was presented, the manner in which it was presented, certainly emphasizing how the FBI handled the investigation,” said Assistant U.S. Attorney Ethan Knight.
For example, prosecutors called Greg Bretzing, then the Oregon FBI’s special agent in charge, to testify that the FBI didn’t want to get too close to the refuge and let people come and go because agents didn’t want to provoke confrontation. He hadn’t testified in the first trial.
Assistant U.S. Attorney Geoffrey Barrow said prosecutors also concentrated more on the 41-day occupation’s effect on refuge employees. “In the first case, there seemed to be a lack of focus on the employees that were actually impeded by this,” he said. “I think the jury got that this time.”
The government called on the employees to talk about their fears before and during the occupation, which didn’t happen in the first case.
“This shows the advantage of getting a do-over,” said Tung Yin, a Lewis & Clark Law School professor. “You see what happens when the prosecution gets to look at what went wrong in the first trial, and they were able to make changes. They streamlined parts of the case and bolstered other parts.”
Testimony showed that Patrick had attended a Dec. 29, 2015, meeting in a Burns home where Ammon Bundy first shared his idea to seize the refuge. Patrick also was among the first convoy of occupiers to arrive at the refuge on Jan. 2, 2016, and conduct a building-to-building sweep of the property.
“It’s not the outcome Jason wanted, but I think he was happy that the jury got to consider his story,” said his lawyer, Andrew Kohlmetz.
A video in the darkened refuge bunkhouse on the night of Jan. 26, 2016, showed Thorn with several assault rifles and arguing for occupiers to remain at the refuge after the arrest of its leaders. He “came to fight,” he said.
Williams said the decision to pursue conspiracy charges against Patrick, Thorn and the other two men and add misdemeanor charges was a joint agreement between his office and officials at the U.S. Department of Justice.
“The evidence didn’t change in terms of who was arrested following the occupation. And so we believe in the wrongfulness of that conduct, and that the matter needed to be brought before the jury and that includes the remaining four defendants,” he said.
The U.S. attorney praised the federal employees who returned to take the witness stand for this trial.
“Our communities and state are stronger because of our joint effort to bring these individuals to justice, and we as Oregonians can now begin to move past these unfortunate events,” Williams said.
But Kohler said she believed the government’s handling of the prosecutions won’t deter the defendants or their supporters, but make them more determined in their challenge to federal control over public land.
“I think this fight is going to continue. I think the new Sagebrush Rebellion has ignited,” Kohler said.
Ehmer, who tried to pass the time awaiting a verdict doing silversmith work on a truck parked outside the courthouse Friday morning, said he was disappointed that “now I’m a felon.”
“I’m headed home to go ride my pony for a couple months, and then I’m going to take my mom fishing. That’s about it,” he said, before leaving for his eastern Oregon hometown of Irrigon in his truck. Ehmer was a common sight at the refuge, riding his horse “Hellboy” and hoisting the American flag there.
Thorn, who was offered a deal by the government seeking his plea to a misdemeanor trespass charge and a sentence of probation with all other charges dismissed, backed out of the deal just before the trial began.
Before the verdicts were read, he said he felt he needed to stand in the courtroom with his co-defendants, citing the words of occupation spokesman Robert “LaVoy” Finicum, who before his death had said “it matters how you stand.”
State police fatally shot Finicum after he sped away from a police stop on Jan. 26, 2016, and then emerged from his truck after crashing into a snowbank. Police said they shot him after he reached at least twice into his jacket, where he had a loaded 9mm handgun.
In all, 26 people involved in the occupation were indicted on the felony conspiracy charge. Eleven faced trial and 11others pleaded guilty to the charge, though several asked to withdraw their pleas. The government dropped the charge against another defendant, independent broadcaster Pete Santilli. Three others pleaded guilty to misdemeanor trespassing.
Sentencing for defendants convicted Friday isn’t expected until at least mid-May. The conspiracy and depredation of government property charges each carry up to six year sentences; the weapons charge up to five years.
The government will consider the severity of the conduct, the impact it had on the community, federal employees and the Burns Paiute Tribe, Knight said.
Defense lawyers likely will cite mitigating factors and the acquittal of the occupation leaders to argue for reduced sentences.
— Maxine Bernstein