PORTLAND — Federal Judge Anna J. Brown is poised to strip Oregon standoff defendant Ryan Bundy of his ability to represent himself, finding he’s been unwilling to follow her orders and has shown an “open defiance” of the court’s authority.
In a five-page order, the judge set out her reasoning and gave Bundy until Monday to “show cause” why she shouldn’t deny him his pro se status.
By repeatedly raising “frivolous issues and matters” that the court has previously ruled on or resolved, Ryan Bundy has engaged in “serious and obstructionist misconduct,” “abused the dignity of the courtroom” and used his pro se status as a “license not to comply with relevant rules of procedural and substantive law,” the judge wrote in an order filed Wednesday in U.S. District Court in Portland.
She noted that Bundy has continually challenged the court’s jurisdiction under Article 3 of the U.S. Constitution and “the false contention” that he hasn’t been provided any discovery in the pending case, Brown wrote.
On July 28, for example, he filed eight documents that didn’t raise “any legally cognizable issue” for the court to address but challenged the court’s authority, Brown said.
“Permitting Ryan Bundy to continue to represent himself would create an unacceptable risk that he would continue to flout this Court’s orders; further impede the efficient administration of justice in these proceedings; and conduct himself in a manner at the trial beginning September 7, 2016, that would prejudice the fair administration of justice, the government, and the co-defendants who each have their own right to a fair trial,” the judge wrote.
She ordered Bundy to explain in writing by noon Monday why she shouldn’t terminate his right to represent himself and appoint his standby counsel Lisa Ludwig as his lawyer. That would restrict Bundy from standing to question the judge directly during court proceedings or filing his own motions.
Bundy is one of eight defendants set to go to trial Sept. 7, charged with conspiring to impede federal employees at the Malheur National Wildlife Refuge earlier this year. Eleven other defendants have pleaded guilty to the charge. Seven others have a trial scheduled in February.
Bundy largely kept quiet through Wednesday’s pretrial conference arguments. When he did stand at the start to identify himself as one of the defendants present, he noted, as he did the last two days, that he was in court “by special invitation.”
The judge interjected, “Let’s stop for a moment.”
She told Bundy, “Do not repeat it again. You have a continuing assertion for whatever that statement means.”
In other developments:
• After concerns raised by defense lawyers and the judge, prosecutors told the court they will not solicit testimony from federal employees at trial about their personal fears regarding the refuge takeover.
“They’re not going to be asked if they were put in fear, if they were personally afraid,” Assistant U.S. Attorney Geoffrey Barrow said. “We didn’t find a case that was powerful enough to support that position.”
• After removing potential jurors for bias or hardship based on answers to written questionnaires, there are 263 jurors remaining in the jury pool to be called for jury selection, starting Sept. 7. The judge plans to call 30 potential jurors on Sept. 7, 60 on Sept. 8 and 60 on Sept. 9. The judge said she believes the number is “more than sufficient” to pick a jury of 12, plus eight alternates.
• Defendant Pete Santilli’s lawyer has argued that the government shouldn’t be allowed to enter into trial Santilli’s publication on his website of 682 pages of legal files on Harney County ranchers Dwight Hammond Jr. and Steve Hammond.
Attorney Thomas Coan said Santilli didn’t take the files. Someone scanned the documents from the refuge, and a confidential source provided them to Santilli, Coan said.
“It would be unprecedented to charge somebody for publishing material of public interest,” Coan argued, likening it to the publication of the Pentagon Papers.
Assistant U.S. Attorney Craig Gabriel countered that Santilli was in possession of documents that had been stolen from federal workers and were published to intimidate federal employees as part of the alleged conspiracy. The government also noted that hundreds of documents were found on three flash drives that co-defendant Shawna Cox had on her when arrested. The judge has yet to rule on Coan’s request.
• The judge ruled that defendants can testify, if they wish, at trial about their reasoning for occupying the refuge and raise the issue of adverse possession and their belief that they were staking claim to another’s land in an attempt to make it their own. But prosecutors argued that the jury should be instructed that whatever the defendants’ reasoning, it doesn’t absolve them of their alleged criminal culpability.
The judge agreed. References to adverse possession will only be allowed as it relates to a defendant’s state of mind. “We’re not going to litigate adverse possession,” Brown said.
Ammon Bundy’s lawyer Marcus Mumford indicated that his client is likely to take the witness stand at trial.
• Prosecutors confirmed that Oregon standoff defendant Jason Blomgren, who has pleaded guilty to a conspiracy charge, is expected to be a witness for the government at the Sept. 7. trial.
• The judge ruled that the investigation into an alleged FBI agent’s shooting at Robert “LaVoy” Finicum’s truck on Jan. 26 and an alleged coverup of the shooting by FBI agents can’t be introduced at next month’s trial. “Mr. Finicum’s shooting will have an airing some day, in some court but not this one,” Judge Brown said.
