Addressing JUDICIAL BIAS and the Elephant in the Room — Legal Reality Check — by Todd Macfarlane

What If You’re Viewed as the Red-Headed Step Child?

Have you ever watched the movie Ever After starring Drew Barrymore? It depicts Barrymore in a Cinderella role, as the French maiden, Danielle de Barbarac, who is treated very poorly by her step-mother.  But in real life, for many stepchildren, life is not a Cinderella story. And at this point it appears unlikely that the Oregon Standoff trial will turn out to be a Cinderella story either.

After spending a week observing the Oregon Standoff Trial, and burning the candle at both ends to make short video clip commentaries about developments in the trial, I’ve got to take a break and do some writing.  There is something I’ve got to get off my chest. I’ve got to address the elephant in the room. I’ve talked about foxes guarding the hen house in federal court generally.  At this point all those analogies — and more –apply to the Oregon Standoff Trial.

When it comes to the contrast between how natural children are often treated by their parents versus step children, although there are clearly exceptions to that and every other rule, many people can relate to this analogy.  Whether it has happened to them or not, they have often seen families and situations where there is a stark contrast between how the natural and step children are treated, with marked preferential treatment for a parent’s own natural children.

Let’s face it, Bundys are also viewed and treated as redheaded stepchildren by their siblings — the vast majority of the American People.  If there is a derogatory label or characterization that can be found, it has been used to describe them. Much of it amounts to outright morally/intellectually-superior hate speach.  Neither Bundys nor their political views will win any popularity contest in the current century.  Moreover, Bundys and their associates are viewed to be the “bad,” misbehaving problem-children.  I had one U.S Marshall at the Portland federal courthouse tell me just that: when problem children misbehave, you have to get out the belt to send a message to everyone else.

That’s why having judges who are able to act impartially is so critical to the fair and just operation of our judicial system.  And as a general rule, many of them probably are.  It isn’t easy. Judges are human beings. They have opinions. They have inherent natural biases. Sometimes they can set those aside.  Sometimes they can’t.

At this point I’m just going to interject and say that Oregon Federal District Judge Anna Brown does not appear to be an exception to the general step-parent analogy – at least not in this case.  Before going any further, however, I also want to say that I have come to like Judge Brown, as I have observed her over the course of a week, as she presides over the Oregon Standoff Trial.  I have come to the conclusion that she is a competent and efficient jurist, fully capable of handling a complex case like this with multiple defendants and other challenges.  But her preferences and biases are really starting to show.

I have a former law partner who is now a judge.  I have previously made references to him, his observations, and my most recent discussions with him, in several of my previous articles about the Oregon Standoff.  Back when we worked together in the same law firm, when I was first a paralegal, then (following law school) an associate, and eventually a partner, I used to tell people that he was the best lawyer I had ever known – as long as you were on his front burner.  Based on my observations of this trial thus far, I’m going to offer a similar caveat about Judge Brown – as long as you are not viewed as a step child – possibly a bastard step child – she is probably a pretty darn good jurist.

But what if you happen to be viewed as that red-headed step child?

I mentioned this dilemma clear back in early February – before LaVoy Finicum was even in the ground – my concerns about finding a judge who could be impartial about this case.  When people are viewed – as Bundys are – as problem children, and public enemy number one to the Federal government, which has become painfully obvious in such a myriad of ways, including the extreme security measures on display during the trial, how are they ever going to get fair treatment by the vast majority of federal court judges?

I’m not completely naïve and inexperienced when it comes to judges.  I don’t claim to be the greatest or most experienced trial attorney in the world.  I am content to be a rancher first and foremost (as well as a writer, and a wannabe alternative media mogul), but I have been an attorney for 25 years, and have been associated with the legal profession (first as a paralegal – back before there even was such a thing) for over 30 years. I have practiced law in two states, and worked a year as a paralegal in upstate New York, before starting law school.  I have been a prosecutor and a criminal defense attorney.  I have tried plenty of civil cases over the years.  I have known plenty of judges, and I have basically been around the block.  My only reason for saying all that is that I’m not sure that in 25 years I have ever seen any clearer case of judicial bias.

To sit back and watch, it doesn’t take long for it to become painfully obvious.  It’s almost as if there has been some sort of explicit collusion between Judge Brown and the prosecution.  She has clearly demonstrated that she has serious issues with Bundys’ political views.  She is extremely defensive when it comes to any questions that relate to federal property title ownership and jurisdiction. She has said that she is going to allow the Defendants to explore subject matter that will help explain their purpose, intent, and state of mind, but she isn’t practicing what she’s preaching.  She won’t let them lay the foundation for presenting that evidence.  When the defendants make objections she requires them to clearly state the bases for the objections, and then she usually overrules the objections anyway.  But when objections come from the prosecution — which is on a hair trigger to object — especially about certain subject matter — she often sustains their objections without even hearing the grounds for the objections. As a general rule she sustains their objections almost before the word “objection” leaves their mouths. Some have said it actually looks like she is cuing the prosectuion when she would like to see them make an objection that she will sustain. Because I have spent much of my time in the 13th floor overflow, watching the proceedings on video, I haven’t always been in a position to be in the right place at the right time to see what is happening in that regard.  But there are plenty of other indications.

The examination and testimony of Malheur National Wildlife Refuge Manager Chad Karges provided a  perfect example.  On direct examination, the prosecution asked Karges about the government’s ownership of the land where the refuge headquarters is located, including title to that property.  This is a hot topic, because, as it turns out, that land was not part of the original refuge set-aside by President Roosevelt in 1908.  That particular land had been originally homesteaded in the late 1800s, and had been reacquired by the Federal government in at least two separate transactions in the 1930s and 40s, based on specific congressional acts authorizing reacquisition of failing homesteads. 

Those congressional acts  were enacted during the height of the Great Depression and the Dust Bowl; during a time when many loans were failing; many homesteaded farms and ranches were failing, and; congress provided funding for federal reacquisition of the failed homesteads so that they could be re-settled, or the split estates could be used several different ways, to generate income and value, and hopefully help stimulate rural economies throughout the West.  At the time, those acts were the functional equivalent of QE-1, QE-2, and QE-3. And there are legitimate questions about the grounds for a legitimate Adverse Possession claim, as well as subject matter jurisdiction and other issues based on current federal ownership and applicable statutory history.

The prosecution opened the door to cross examination on that subject by questioning Karges about it.  But when it came time for cross examination, both the prosecution and Judge Brown were on hair trigger to shut down that line of questioning.  Obviously, they didn’t want Karges to have to attempt to do any explaining when it came to the issues of title ownership and jurisdiction.  A quote from the Shakespeare play Hamlet, seems more than apropos regarding Judge Brown’s treatment of the Defendants’ inquiries in this regard: “methinks she doth protest too much.” But when Karges made unsolicited and irrelevant comments on cross examination about an ambiguous kidnapping threat to a federal employee somewhere, she said nothing.

After just a week of trial it has become painfully obvious that Judge Brown considers the government and the prosecution in this case to be her preferred natural children in the whole equation, who are entitled to overzealous protection against the probing questions and inquiries of the Defendants.  Another fitting analogy would be comparison to a sports contest.  In a jury trial the prosecution and defense are opposing teams, and the judge is the referee, to ensure fairness, a level playing field, and proper presentation of evidence to the jury — which is supposed to be the judge of the facts, and trier of guilt and innocence.  In this case, however, the prosecution has the advantage of unlimited resources both in terms of talent, and in just about every other respect.  They also have the home court advantage.   And so far it does appear that they also have the referee in their pocket.

Based on all that, at this point, I’m going to once again renew my pitch for greater judicial transparency, through some mechanism of live-streaming of cases and court proceedings, which are already being recorded via a variety of electronic means.  It would be like broadcasting the game so that everyone could watch it rather than rely on what a very small group of people have to say about it.  If we can justify broadcasting high school sports, certainly we ought be able to justify and find the resources to broadcast something as important as a federal court cas such as this. That  would give others a better opportunity to see what I am talking about, as well as help remove the mystery that continues to enshroud the judicial system.

In this case, that would be very helpful for several reasons.  One thing that most people probably don’t know, for example, is that Ammon Bundy’s attorney, Marcus Mumford, has a speech impediment.  He stutters.  Sometimes worse than others.  But, unlike many lawyers, he is no silver-tongued devil.  He has to work very hard at what he does. When he introduced himself to the jury, he joked that when you call his house you better not hang up too soon if you don’t hear someone speak, because he may still be trying to get the first word out of his mouth.

But no one else who is attempting to describe what is going on in the case seems to have talked about that.  It may not be considered politically correct to even mention this, let alone talk about such things – just like it isn’t considered to be politically correct to mention, let alone discuss, Ryan Bundy’s facial deformities.  But, along with Judge Brown’s obvious attitude towards the Defendants and their attorneys generally, this has all become part of the elephant in the room.  Judge Brown’s whole body language, demeanor, and repeated rulings leave little doubt about her preferences and biases in the case.  There’s that old saying “the record speaks for itself,” and the record is really starting to speak in this case.  Judge Brown does not like at least the key Defendants, and their attorneys.  She seems to be clearly biased against who they are, what they stand for, and the arguments they are attempting to make. That has all become rather painfully obvious.

Consequently, it was no real surprise when, even at this stage, early in the trial, after months of legal wrangling,  Ryan Bundy made a motion to recuse Judge Brown. That motion was then followed by a motion for a mistrial, based on the highly prejudicial, unsolicited answers from the Government’s witnesses on cross examination, including both Karges and Sheriff David Ward, that Attorney Mumford argued had been coached, and that although they should have known better, they had “laid in wait” “for an opportunity to blurt this irrelevant and highly prejudicial information.  According to Mumford, a pattern was starting to become readily apparent. Although the motion was initially sealed, eventually Judge Brown heard arguments on the motion and ruled on it.  Her decision not to grant the motion was no surprise, but under the circumstances her failure to admonish the government against any such future outbursts was.  In the meantime, neither the motion to recuse, nor the motion for mistrial have done much to curry her favor regarding the defendants raising those issues. In other words, it appears that situation is going from bad to worse.

I’m convinced that Judge Brown is a capable, competent judge.  But she’s still human.  The case has progressed to the point that she can’t hide her distaste for at least some of the Defendants and what they stand for.  Attorney Mumford’s inherent challenges are also starting to grate on her.  It’s a darn good thing that a jury will be deciding the case.  If this were a “bench trial” (tried to the judge without a jury), I’m afraid the defendants would be in serious trouble. There is little question that regardless of what the constitution may say, with respect to at least some of the defendants, in Judge Brown’s own mind there is no presumption of innocence. Influenced, among other things, by the multiple plea agreements that have already been entered into, and processed through her court in this case, she has clearly already long since reached the conclusion in her own mind that at least some of the defendants are guilty. But with the governments one-size-fits-all approach that becomes a real challenge. In the meantime even though the jury will be deciding guilt or innocence, there are a myriad of legal and evidentiary rulings that must be made by a judge.  And anyone who might find themselves in the shoes of the defendants in this case would want an impartial judge to be in the driver’s seat.  Any defendant accused of anything would naturally want an impartial judge.  It’s a tall order in this case, but it’s not too much to ask.

Something else to consider are Judge Brown’s statements that she has a lot of confidence in this particular jury.  She said they have already demonstrated that they will follow all her directions very carefully.  Exactly what that means remains to be seen.

I don’t know what the final outcome will be regarding this issue.  Unfortunately, I am not optimistic. That statement makes it sound like I am very biased in my own desired outcome.  On that score I try not to make any pretenses about my own biases, but what I am not optimistic about is whether Bundys will even get a fair trial.  I have a friend who says that really most pessimists are just optimists with experience.  As an experienced realist, I am concerned about the writing on the wall.  But in conclusion I will make a couple suggestions to the defense:  Cross examination is an opportunity to make hay with the government’s witnesses. Tight, leading questions are fully permissible, and will help get around many of the prosecution’s objections, as well as do a better job of making and emphasizing some important points.  And as lead defense counsel in the case, Ammon Bundy’s attorneys need to start changing things up, and better utilizing their full team, with Attorney Morgan Philpot playing a more active role in cross examination – which is a prime opportunity to shed some much needed sunlight in this case.  It is not yet clear if Judge Brown hates all the red-headed step children equally, so if there is one who might find favor in some regard, it is time to figure that out, and utilize that person to play a bigger role in helping to work through this.

By the time it’s over, this case is going to be a full-fledged adventure.

RANGE / RANGEFIRE! — Addressing Issues Facing the West / Spreading America’s Cowboy Spirit Beyond the Outback