Oregon’s federal court will soon summon 1,000 prospective jurors for the second conspiracy trial in the takeover of the Malheur National Wildlife Refuge.
They’ll be asked to complete written jury questionnaires due back to the court by Jan. 25.
The trial for seven remaining defendants is set for Feb. 14.
The court must decide whether new misdemeanor charges filed against the defendants will be heard by a jury or the judge.
Assistant U.S. Attorney Ethan Knight said the defendants facing misdemeanors — including trespass, destruction or removal of government property and tampering with vehicles and equipment — don’t have a right to a jury trial. Those charges typically go before a judge only.
Defense lawyers expect to argue that a jury should consider all the charges – the misdemeanor counts as well as the felony charges of conspiring to prevent federal employees from carrying out their work at the refuge and possessing a firearm in a federal facility.
The judge could, however, have a jury deliberate on the federal charges and then the judge could hear testimony on the misdemeanor charges during the jury’s deliberations.
If someone is taken into custody on a felony charge, as these defendants were, they should have the right to a jury trial, Oregon federal public defender Lisa Hay said. It doesn’t seem reasonable to deprive them of a jury trial on the misdemeanor charges if a jury is being convened anyway, she said.
U.S. District Judge Anna J. Brown will make the call.
Both sides have until Jan. 13 to file pretrial motions on the misdemeanor charges with oral arguments to follow at the next status hearing Jan. 20.
Headed for trial next month are Jason Patrick of Bonaire, Ga.; Duane Leo Ehmer of Irrigon; Dylan Anderson of Provo, Utah; Sean Anderson and his wife, Sandra Lynn Anderson, of Riggins, Idaho; Darryl W. Thorn of Marysville; and Jake Ryan of Plains, Mont.
Patrick, Ehmer and Thorn were in court Friday. Their co-defendants waived their right to appear and were represented by their lawyers.
The misdemeanor charges were added this year against the remaining defendants, after a jury acquitted occupation leaders Ammon Bundy, his brother, Ryan Bundy, and five others on federal conspiracy, weapons and theft of government property charges to conclude a five-week trial.
The judge directed defense lawyers in the upcoming case to file their position on a partial jury sequestration order, which was done in the initial trial. Jurors each morning gathered off-site and were driven to the federal courthouse “to insulate” them from outside information and protests outside the building, the judge said.
She also asked lawyers to weigh in on her desire to refer to jurors only by numbers throughout jury selection and the trial.
Several defendants are expected to file motions for the court to suppress statements they made to authorities.
Jake Ryan, for example, wants the court to suppress what he told the FBI when he turned himself in on Feb. 12 to the Sanders County Sheriff’s Office in Montana.
Ryan thought the FBI was granting him immunity in exchange for his surrender on Jan. 27, according to his lawyer Jesse Merrithew.
His lawyer contends federal agents “tricked him into meeting with them” by falsely telling him they wanted to return his property to him. He said FBI agents didn’t read Ryan his Miranda rights and didn’t record or allow Ryan or his father to record their conversation.
The night that state police shot and killed occupation spokesman Robert “LaVoy” Finicum after he drove away from a police stop on Jan. 26, FBI negotiators tried to call anyone they knew who remained at the refuge to encourage them to leave the property immediately, Merrithew wrote in the motion.
Later that evening, an agent who said his name was “Chris” reached Ryan at the refuge, then one of five remaining occupiers.
The agent told Ryan repeatedly that he was free to go, was not going to be charged with a crime and could keep his guns and take them with him. Within a couple of hours, Ryan left, approaching a roadblock unarmed. He left his firearms and belongings behind. Ryan was detained at the roadblock for some time before he was released and he returned home to Plains, Mont.
Once home, Ryan reached out to the local sheriff’s office to try to get the sheriff to help him recover his firearms left at the refuge. Sheriff Tom Rummell contacted the FBI, and set up a meeting between Ryan, his parents and FBI agents in Thompson Falls, Mont. Ryan’s lawyer wants to suppress the statements Ryan made to the federal agents during that interview before his arrest.
