As the government prepares for the second trial stemming from last winter's armed standoff at the Malheur National Wildlife Refuge, an interview with a pivotal juror from the first trial reveals significant missteps that cost federal prosecutors the convictions of the occupation's leaders.
In an email interview with E&E News, Juror 4 demonstrated that prosecutors failed to adequately explain how intent may be proved in a conspiracy trial — leading to what legal experts say was a misunderstanding of the primary charge in the case.
The juror also revealed a deep skepticism of the FBI and its hands-off approach to the 41-day occupation.
Those factors — plus a few compelling arguments from defense attorneys — led the jury to acquit the seven defendants, including leaders Ammon and Ryan Bundy, on charges of conspiring to impede federal officers during the armed standoff.
The results underscore challenges ahead for prosecutors as they are set to begin a trial for the four remaining defendants on conspiracy and other charges next week.
"I don't believe any of the jurors would say that the defense won the case, but rather it was the prosecution that lost it by applying the wrong charge," Juror 4 wrote.
E&E News communicated with Juror 4 via a court-appointed attorney. The 44-year-old Marylhurst University business administration student was a leader on the panel.
During deliberations, he wrote a note to the judge questioning the bias of another juror, who was a former Bureau of Land Management official. The note led to the dismissal of that juror, and the jury delivered its verdict hours later (Greenwire, Oct. 28, 2016).
Juror 4 declined to be identified due to threats made to multiple members of the 12-member jury. No other juror responded to a request to answer questions, including the juror who was dismissed.
His answers strike a similar tone to emails he sent to The Oregonian immediately after the October verdict. However, they go into more depth and respond to a variety of questions about the trial, including the strategies of both the prosecution and the defense.
In particular, Juror 4 was critical of the prosecution's decision to charge the defendants with conspiring to impede federal officials through threats, intimidation or force.
Conspiracy is generally considered a relatively easy charge for prosecutors to prove because it requires only that an agreement to act illegally occurred and that the conspirators took some step in furtherance of that agreement, regardless of whether that first action was itself illegal.
The juror, however, indicated that prosecutors failed to get past step one of the charge. They didn't show that all the defendants agreed that they were at the refuge intending to block federal employees from their work, Juror 4 said, noting that there was a "diversity of motivations" for being there.
"In fairness to the prosecution, the standard of proof for a federal conspiracy seems dauntingly high," Juror 4 wrote. "How do you demonstrate agreement between two or more persons and, at the same time, prove that those persons knew that what they were scheming was illegal at that time?"
He went on: "It seems to me you would have to possess some special evidence (e.g. a document, a video, a credible witness, etc.) that reveals what was inside someone's head, and such evidence was not presented in this trial."
The U.S. attorney's office in Oregon declined to comment on the juror's remarks.
Other attorneys, however, said his remarks constituted a "misunderstanding of conspiracy" and underscored that the prosecution failed to adequately explain the charge to the jury.
Tung Yin, a professor at Lewis & Clark Law School who closely followed the case, reviewed Juror 4's answers and said he "seems to be hung up on the proof of the agreement."
In most conspiracy cases, Yin said, there is no explicit or written contract to commit the conspiracy.
Instead, as with other criminal charges, jurors are instructed to look at circumstantial evidence to derive defendants' intent or an agreement.
"Our system imbues the jury with determining its own reading of its instructions," Yin said. "So I can't tell that the juror is wrong; they voted to acquit. But I will say that this seems like an unusual way of reading what the government would have to prove to prove the agreement."
In the Malheur case, the prosecutors introduced video evidence of Ammon Bundy asking his supporters to come to the refuge with their guns to take a "hard stand."
Attorneys said what came next indicated that an agreement to impede took place on some level. That included evidence that Bundy's supporters showed up with guns and took various other actions including nailing shut the doors of government buildings and blocking the entrance to the refuge.
Drawing conclusions from such actions is common in criminal cases, said Justin Pidot, a former Obama administration Interior Department attorney who was not involved in the case.
"A jury can conclude that someone intended something that is a natural consequence of their actions," said Pidot, a professor at the University of Denver Sturm College of Law. "Otherwise, juries would never convict anyone."
Juror 4, in his thorough and articulate answers, appeared to indicate that drawing any inferences was beyond the jury's responsibility.
"All that the prosecution established was that there was agreement to go to a certain place, armed, to protest," he said. "The leap in logic required to get to conspiracy to impede is far too great, especially given the dearth of evidence presented, for jurors to say beyond a reasonable doubt they were guilty."
Further, Juror 4 seemed to believe that the defendants had many different reasons for attending the occupation that extended far beyond the refuge and its employees.
"The sad fact is that the defendants were so caught up in their claims that it never quite registered on their radar that they could be simultaneously violating other people's rights to work at that site," he wrote.
Their "vision and purpose seemed to transcend the employees altogether," and they "were not all in agreement as to why they were there in the first place."
David Uhlmann, a former Justice Department environmental attorney, declined to comment specifically on the juror's answers. But he said the jury's verdict shows the challenge presented by a conspiracy charge — and one that prosecutors must be mindful of in the next trial.
He said juries often want "smoke-filled rooms and gangsters," which are usually lacking in conspiracy trials.
"There is no question that it is unlawful for Bundy and his co-defendants to occupy the refuge. There also is no question that they agreed to do so; they did not all end up there for weeks by happenstance," said Uhlmann, who is now a professor at the University of Michigan Law School.
"The fact that the jury nonetheless acquitted on the conspiracy charge demonstrates the difficulty of proving conspiracy, particularly in a case where the defendants argued that the government did not lawfully own the refuge," he said.
'The FBI didn't believe'
The question of ownership of the refuge land came up during the trial and seems to have resonated with Juror 4.
Defense attorneys repeatedly argued that the group was seeking to take over the refuge through "adverse possession," a legal principle that transfers ownership of property through prolonged occupation.
Prosecutors sought to bar any discussion of ownership of the refuge from the trial because there is no dispute over the federal government's ownership of the land, and moreover, the government contends it is impossible to adversely possess federal property.
Judge Anna Brown largely granted that request, but she allowed the defense to discuss adverse possession insofar as it spoke to the defendants' state of mind or intent.
Consequently, the government did not present any evidence or testimony refuting the legality of the adverse possession defense. That struck Juror 4 and seems to have harmed the prosecution's case.
"Because intent of state of mind was built into each of the charges, adverse possession proved to be the critical component for five of the seven defendants," he said. "It was a travesty that the court would not allow an expert witness to rebut Ammon's teaching on adverse possession, leaving us jurors to only learn about it from him."
Juror 4 was particularly critical of how the FBI handled the occupation.
He said it appeared that a "longstanding animus existed between the FBI and the Bundy family" and noted that an FBI agent seemed to have been assigned to tracking Ammon Bundy since the 2014 standoff at the Bundy family ranch in Bunkerville, Nev.
Consequently, he questioned why the FBI largely let the occupation play out unobstructed for weeks.
"I began to wonder if enough legal concern existed to marshal such considerable resources as the FBI employed in tracking Ammon," he said, "why wasn't there a willingness to nip the occupation in the bud early on?"
He went on to speculate about whether the FBI viewed the Malheur occupation as a serious criminal threat.
"I feel that the FBI didn't believe at the time that the major crime committed at the refuge was a conspiracy to impede officers of the United States by force, threat, or intimidation — or else they missed all too many opportunities to arrest the key players and shut it down before Jan. 26," the day Bundy and others were arrested during a roadside stop, the juror said.
He added: "The FBI's testimony to explain this behavior was that they were not wishing to escalate anything, but it struck the jurors as inadequate and caused me to see their very escalated response that began on the 26th as overcompensating and harsh."
Juror 4's remarks echo critics of the FBI following the acquittals, who suggested law enforcement's approach to the standoff — while aimed at avoiding a shootout and bloodshed — may have hamstrung prosecutors (Greenwire, Nov. 1, 2016).
The FBI's Portland, Ore., office declined to comment on the remarks.
The FBI's use of confidential informants during the standoff also caused problems for the prosecution, according to Juror 4. He said the "mysterious informants are what caused insurmountable doubt in at least one juror."
However, Juror 4 cheered prosecutors for adding misdemeanor trespass and other charges facing the remaining defendants in the second trial.
"These added charges are quite gratifying," he said. "I certainly wish our jury could have weighed in on these matters."