As we witness one of the most contentious presidential elections in history one of the issues being decided is the future of our Public Lands. The Republican Party has as one of the planks of it’s party platform this cycle the transfer of all federally owned lands to the states within which they are contained. This has long been a goal on the right, it being in keeping with their philosophy of “smaller government” and “states rights”. Among the leaders of this movement have been groups such as The American Lands Council and individuals such as Ken Ivory. Of course at the core of this issue is not only the legitimacy of federal land ownership, but the legitimacy of the federal government itself, if the government can’t own land, what else can it not do?
These questions: whether or not the federal government can own land; the use of the Commerce and Supremacy clauses of the Constitution have been the purview of state legislatures, think tanks and activist/advocacy groups like the ALC. However, as a consequence of the actions of a small band of heavily armed activists led by two brothers earlier this year, these questions may all be decide, in practice if not law by a jury of 12 Oregonians.
On 02JAN2016 a group of heavily armed, self described “patriots” entered the Malheur National Wildlife Refuge beginning a 41 day occupation that became known as the Oregon Standoff. After the occupation ended in February 27 of the militants were arrested and charged with “conspiracy to impede officers of the U.S. from discharging their official duties through the use of force, intimidation, or threats”. Some were charged with other crimes as well such as theft of government property. As of this date a number of defendants plead guilty and received sentences of a few months to 2 years in prison. A number of other defendants have had charges dropped.
In September, seven defendants went to trial. The trial was held in Portland, OR. Among those on trial were Ammon and Ryan Bundy, the chief protagonists and organizers of the “standoff”.
From the outset the trial judge Anna Brown lost control of her courtroom. Ammon Bundy decided to wear his jail scrubs and described himself as a political prisoner, this was allowed (similar tactic to his use of a cowboy costume during the “standoff”). In sympathy other defendants came to trial each day in their scrubs. Sympathetic members of the public also came to observe the trial daily thus attired.
There were really 2 trials. The trial of the Bundy’s on the charges brought against them and the trial the Bundy’s wanted, which was the indictment of the federal governments right to own land. Although the judge tried to focus the court and jury on the charges being tried she failed. Ammon Bundy for example frequently brought up the concept of “adverse possession" and his lawyer, Marcus Mumford several times referred to the “murder” of LaVoy Finicum. The judges response to each of these attempts by the defendants to redefine the scope of the trial was to 1) admonish the defendant or his lawyer 2) instruct the jury to “unhear” what had just been said 3) threaten to charge the next excursion with contempt of court. The pattern continued and no contempt charges were brought. Ammon Bundy at one point was reading from the Book Of Mormon and his Skousen pocket constitution from the witness stand.
The Bundy’s got their show. Ammon Bundy’s attorney gave a 4 hour summation in which he appealed to the jury to “save rural America”. He made a case that sounded a lot like an appeal for jury nullification. It looks like a win win for the Bundy’s cause. If they are found guilty it is only on the charges at trial and they may get a sentence of a few months to a maximum of 5 years. If they are acquitted however, then they have won their greater cause. Not in fact, after all these constitutional principles were not on trial. As Assistant U.S. Attorney Craig Gabriel countered in summation, the defense was trying to change the subject, “The FBI is not on trial here, ladies and gentlemen,” he told the jurors. “This was a dangerous and armed standoff.”
Not in fact then, but in effect. Ammon Bundy argued that this was an act of civil disobedience. No one was threatened and no one was hurt. He argued also that no one was intimidated or impeded. If federal employees had wanted to show up for work, he says they would not have stopped them.
This may sound like disingenuous sovereign citizen gibberish at best or even not sane. But this is in the hands of a jury. Not a clinical psychologist. If they are acquitted then armed protest of any federal government facility is a thing. Public land, public buildings (courthouses?). If ,for example, someone wants to build a ranch on National Park Land and run cattle as a form of “protest”, then who’s to stop them? There will be precedent. Although the concepts of adverse possession and the right of the federal govt. to own land were not on trial in fact, in effect they were. If the defendants are exonerated then all Public Land and for that matter all federal property is now exposed to armed “protesters”. What they are protesting may become the subject of contention but how they are doing it will deny the American people the right to enjoy their common property.
Well yesterday there was potentially bad news for the American people. The jury had been in deliberation for 3 days (already a bad sign- such simple charges should have been resolved in 1-2 days) when they sent 2 notes to the judge. The first note indicated they could not agree on charges for all defendants. Specifically they wanted to know if they could agree on all charges for only 3 of the defendants or only 10 of the 13 total charges for all seven would that constitute a mistrial. IANAL, but as I understand it, a lack of jury unanimity is a mistrial. The second note was that of one juror questioning the impartiality of another. The juror cited was questioned by the judge and attorneys for both sides and will, for now, continue on the case.
These are not good signs for the governments case. The fact that the jury cannot agree on charges points to either mistrial or acquittal of some or all defendants.
UPDATE: Ammon Bundy's personal bodyguard Brian Cavalier has been sentenced to time served, the nine months he's been in custody as of Tuesday. Cavalier, 45, had pleaded guilty to federal conspiracy and possession of guns in a federal facility in the refuge occupation case.
UPDATE 2: Judge Anna Brown says she'll dismiss juror 11, then send the jury home for the day. Deliberations will resume tomorrow with alternative juror 18.
UPDATE 3: Jury Nullification wins. Not guilty on all charges.
As the Ammon Bundy’s attorney appealed his closing arguments:
"'We're counting on you to stop government overreach,' Mumford told the jury. 'Our trust is in you.'"
A direct appeal for nullification. And the jury came through.
The jury just signed the death warrant of the American West. If you want land, take it (make sure you bring your guns).