Oregon Standoff “Discovery” Makes Interesting Revelations
The time of surprises in criminal trials is now supposed to be a thing of the past. Unlike legal drama movies and TV series from Matlock and Perry Mason to Drop Dead Diva, in modern criminal cases, based on applicable rules of criminal procedure, there aren’t supposed to be any surprises from the prosecution. The prosecution is required to disclose all of its evidence and all witnesses to the defendants well in advance so they can prepare for trial. This process is known as “discovery.”
As the Oregon Standoff case approaches trial, discovery has provided some interesting revelations. One of those interesting revelations is how the government has apparently labeled and refers to many witnesses in the case as “Unindicted Co-conspirators.” Apparently this label includes virtually anyone who visited the Malheur Wildlife Refuge during the occupation. There is a definite guilt-by-association 
insinuation. The insinuation is that if anyone went to the refuge, for any reason, they are considered by the government and the prosecutors to be co-conspirators. What does this mean? How does that reasoning apply to the media, for example? Or to mediators? Among other things, on one hand it may mean that the government simply did not seek a grand jury indictment regarding some of these people, or the grand jury declined to indict any other alleged co-conspirators. On the other hand, the more likely explanation is that the government is simply attempting to use this label and terminology as part of a threatening, fear-based tactic of harassment and intimidation, to send a message that it’s always watching, and there may be more to come.
Discovery has also revealed some very interesting information relevant to the question of why USFWS employees were not even planning to return to work at the Refuge after the Christmas holidays. According to information disclosed in the case, and seemingly corroborated months ago by an article in the Washington Post, days in advance of the Malheur Occupation, federal employees in Harney County had been instructed by their government supervisors not to return to work after the holidays. Why? One explanation is that, based on the electronic surveillance and domestic spying that was already going on, and had been going on for weeks, the federal government was taking preliminary precautions. Another explanation might be that the federal government was actually trying to set-up the conspiracy/impeding claim in advance. This raises some very interesting questions about who was doing the impeding, and even about who was conspiring to impede. So if you’ve got federal supervisors speculating about what is going to happen, and colluding and conspiring in advance not to go to work based on such speculations, is it a conflict between two alleged conspiracies?
From the outset I have been talking about judicial transparency issues in the context of the Bundy cases, and how U.S. Courts could improve transparency by allowing live video feed of court proceedings. I am not the only one raising transparency issues in these cases. Other media lawyers are arguing that the federal courts are trampling first amendment freedom of speech and press rights in these cases. But apparently someone has been listening in some form or fashion to the transparency/livestream arguments, because now the Oregon Court has reportedly approved at least a live audio feed of the Oregon Standoff trial to the BLM office in Burns. That’s a start. But my 
question is: why the BLM office, and why only in Burns? In authorizing the live feed to the BLM office in Burns, the court reasoned that this will allow federal employees who were alleged “victims” of the occupation, and who were allegedly impeded from going to work during the occupation, to be able to “follow the trial,” without having to go to Portland to do it. In other words, after essentially having a paid vacation in January, federal employees in Harney County are now going to get paid to watch the trial at the BLM office for the next several months. If the Government’s arguments hold any water at all, this was supposed to have been a crime against the country and all of its citizens, who actually foot the bill for everything that happened in Harney County last winter. Under that theory, are we not all “victims,” who should be entitled to equal treatment, including equal opportunity to follow the trial? The court’s other reported reasoning was to free-up more seating in the court room during the trial. All the more reason to have a live feed. What is being proposed is certainly a possible step in the right direction, but judicial transparency would benefit immeasurably from making virtual access to the proceedings available on a much broader basis. If they are already going to the effort of recording the trial for purposes of a limited live feed, whether audio or video, why not just post it to a website, like a podcast, where anyone could go to watch or listen in? Does that just make too much sense?
Shifting gears to jury selection. Although I recently read a confidence-instilling story about juries, seating an unbiased jury in the Oregon Standoff case will be no easy task. Just to help clarify, however, even though the case and trial are in the Portland division of the Oregon federal district court, the case is supposed to be drawing from a state-wide jury pool. I say “supposed to be,” because there are lingering questions about the grand juries that handed down the indictments in these cases. Clearly, based on population demographics, more potential jurors will come from the 
more populous areas of the state. To assist in the jury selection process (and substantially reduce in-court time, with large numbers of potential jurors) the court sent out a questionnaire to 1500 potential jurors on the jury pool list. Apparently, a relatively small percentage of the questionnaires were returned. Based on answers to questions posed, both the government and the defense have already had an opportunity to object to, and eliminate some of the potential jurors based on obvious bias, and other reasons. The jury will ultimately consist of 12 jurors who will deliberate and decide the case. Because the case is projected to potentially last for several months, however, in addition to the 12 jurors seated, there will also be eight “alternates,” who will sit through the entire trial, and be prepared to participate in jury deliberations if, for some reason, any of the other jurors are not able to complete the process. Judge Brown has said once the trial starts she anticipates that jury selection will take approximately three days, with more “voir dire” questioning from the judge. Once the tentative jury panel is selected, each side will have the opportunity to strike three jurors per side, without any reason, after any and all potential jurors have been removed for good cause, to come up with a total of 20, with 12 jurors and eight alternates. It will certainly be interesting to see who ends up on the jury.
But before the trial even starts, Judge Brown must rule on a major new substantive motion filed by Ammon Bundy’s attorneys, challenging the court’s subject matter jurisdiction and seeking dismissal of the case. She has already signaled that she intends to reject the motion out of hand, without any serious consideration, but such an approach might have serious long-term ramifications.
Something to bear in mind is the fact that federal courts are courts of limited jurisdiction, whereas state courts have general jurisdiction. Jurisdiction is a big, recurring issue in federal courts. Cases are dismissed all the time for lack of subject matter jurisdiction. Although, technically, subject matter jurisdiction can be raised at any time, once a case reaches this stage of the game, it is highly unlikely that the court will take the pending jurisdictional challenge seriously.
Ammon Bundy’s new motion re-asserts the Adverse Possession claim in a new way, and uses that theory to challenge the court’s criminal subject matter jurisdiction in the case. The motion cites a number of cases, including United States v. Otley, 127 F.2d 988 (9th Cir. 1942), in which the Ninth Circuit Court of Appeals addressed competing claims to the Malheur National Wildlife Refuge, and discussed relevant issues. This elevates the Adverse Possession claim to a whole new level that may have some people squirming.
In the motion, Bundy’s attorneys argue:
“While Congress long ago criminalized unlawful conspiracies designed to employ “force, intimidation, or threat” for the purpose of impeding “any officer of the United States” under 18 U.S.C. § 372, in a more specific and modern statute, Congress has expressly protected and condoned “[a]ny individual, group or corporation authorized to hold title to land in the State and who believes he has a valid claim under color of title” and who has employed the ubiquitous “force” and “ouster” requirements of adverse possession. . . It would be an extreme contravention of legal principles to allow, on the one hand, the United States to construe a controversy involving “use of force” under adverse possession as a criminal act, or, on the other hand, to permit the United States to pursue such a claim where these principles have divested the court of jurisdiction – as sanctioned by Congressional actions.”
In a nutshell, based on applicable law, the Oregon Standoff case may not be quite as clear-cut, black and white, open and shut as some people have wanted to believe. As I mentioned in a previous column, the Adverse Possession theory involves highly appealable legal issues, which will be reviewed for legal correctness, without any deference to the trial court’s previous ruling(s). At this point it does appear highly likely that the legal issues at stake in the case will only be fully addressed and resolved on appeal.
In the meantime the federal government is reportedly prepared to spend at least one hundred million dollars on the trials, while the defendants continue to sit in jail, not as punishment for anything they have done — because supposedly they are entitled to a constitutional presumption of innocence — but based instead on the theory that if they are released, they may not come back to court to argue the merits of their case. At least that is what the Government has argued.
Whether any of these arguments prevail or not, they will inevitably have some people squirming – which is probably a good thing. According to one purported expert, there is a crisis of over-confidence in the legal profession. And squirming is a healthy antidote to over-confidence.
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Todd I changed my email. Please forward to the following.
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Good analysis, Todd. Are you available to come on the radio show to discuss?