Judge Anna J. Brown’s War on the Constitution
By: April Kiessling
Defendants in Oregon’s Malheur Refuge Occupation case have been imprisoned and charged with a multitude of high crimes and misdemeanors by federal and state agents. As the wheels of justice slowly grind, they find their most formidable foe may not be the FBI, embedded informants or a biased press – but their judge.
Anna J. Brown is a US District judge in the state of Oregon, appointed by Bill Clinton. She was sent to supervise the mass trial of virtually all the Malheur Refuge Occupation defendants (originally 26). Seven are currently being tried as a group. It quickly became clear why she was chosen, as well as given a great deal of latitude and scope of power. Brown appears to been exhibiting an extreme bias against the defendants and an almost slobbering largess toward the prosecution. So open is her bias, that virtually every observer is aware of it by now.
Possibly the most egregious of Brown’s many instances of injustice is her micromanagement and hostility during defense testimony. She is continuously speaking, leading, countering, cutting, and blocking the defense. One observer told me she had counted 89 objections from the prosecution (interrupting Ammon Bundy’s testimony) in only one morning session. “Brown sustained [allowed] all of them but eight” she marveled. Conversely, defense attorneys rarely objected. When they did, they were generally ignored, while the prosecution continued merrily along.
The US Constitution is taboo in Judge Anna J. Brown’s courtroom. Even sidewalks surrounding the federal building where people are threatened with arrest for passing out copies. It seems to cause hysterical reactions. The jurist flat-out blocked any portion of the Constitution to be read or recited on several occasions, which brought audible gasps of disbelief from the gallery. Even reference to the Constitution, as well mentioning specific Oregon laws (which defendants are charged with breaking), is discouraged.
Brown orders them to consider all references to the document solely as a matter of the “state of mind” of the defendants, as if it inspired criminal acts. Inference that the defendants share mental problems stemming from belief in the powers of the Constitution, comes across loud and clear. Since many of the defendants base their actions and motivations on the Constitution, their defense is effectively knocked out at first base.
But Brown doesn’t stop her censorship with only the Constitution. Malheur defendants are denied everything from witnesses to time. The lengthy prosecution case against them went on without a hitch and no complaints from Anna J. Brown. Now the judge is in a rush, reminding Ammon Bundy’s lawyers Marcus Mumford and J. Morgan Philpot, of all the time their client wastes while they attempt to put up a defense. Bundy has been charged with numerous crimes and would be expected to address them all.
Some witnesses for the defense fared better than others. The Rev. Franklin Graham (son of Billy Graham) took the stand to testify for the defendants on September 29, 2016. He wasn’t interrupted or threatened, undoubtedly due to his celebrity status. Graham praised the non-violent nature of the last remaining four occupiers at the Refuge and convinced them to leave. The evangelist also described defendants’ terror and his personal fears for their safety at the hands of the government.
Un- Constitutional Political Manuvering
Political machinations were evident early on. On July 15, 2016, months before the actual trial, Brown ruled that Ammon Bundy and the others were not allowed to discuss any number of things that occurred, before, after, or during the occupation. Specifically, they denied pretrial evidence of FBI agents who had [falsely] claimed to be militia with the occupation. Caught in the act of ratcheting up conflict and fear in Burns, Oregon, the FBI was instrumental and possibly took the lead in killing spokesman LaVoy Finicum. It is reported that the DOJ is currently investigating this. The apparent murder of LaVoy Finicum at what is euphemistically labeled a “traffic stop” is the other forbidden subject in Brown’s court. His name alone sends prosecutors into reactionary objections. On September, 23, 2016, Brown threatened Mumford with $1000 fines and “contempt of court” citations for each mention of LaVoy, including testimony on the government informant driving Ammon Bundy’s car during the fatal ambush.
LaVoy, An ‘Off Limits’ Subject
Brown insists LaVoy’s death is not “related to the refuge occupation” although his actions there are clearly the reason he is dead. Also, FBI malfeasance is a reasonable defense for several defendants, who claim they remained at Malheur for fear of being gunned down. As occupation spokesman, LaVoy was present in several scenarios of which defendants are required to testify, but are hamstrung by inability to refer to him by name. Brown’s arbitrary restrictions are especially onerous, since prosecution made it clear that “intention” of occupiers is central to whether they are considered to have committed crimes.
Since then, Brown routinely changes rules and instructions to the jury, mid-stream. Mumford challenged her jury instructions to disregard his objections over tagging defendants “terrorists.” This was in discussion over the imprisoned Oregon ranch family, the Hammonds, who are being charged under the “Anti-terrorism and Effective Death Penalty Act of 1996.” Early on, the Malheur group were labeled “militia” or “terrorists” in legal communications and by much of the press. None of this has been substantiated. Some Malheur occupiers/visitors were unarmed and others are even members of religions believing in pacifism. Defendants are “using the term [terrorist] improperly,” Brown instructed, as she is apparently an authority on linguistics.
Questioning the Bench a Threat?
At this point Mumford charged the court with “taking sides” and accused Brown with not allowing him to present evidence. Perhaps running out of rationalizations, Brown claimed to then be “threatened” by Mumford, as she apparently interprets questions over legal matters as menacing.
Government is allowed to enter all exhibits, data, video or witnesses, from any place, any source or time. Defendants are given no such latitude. Brown denied them discussing the killing of their spokesman LaVoy, because it didn’t happen on Refuge grounds, but a few miles down the road. Attorney Mumford risks the rage of Brown as he obliquely slips his points into questions, such as how close police were when they “shot Finicum three times in the back” on January, 26, 2016.
Restrictions on defense access to prosecution evidence in discovery and later was so extreme that Ammon Bundy’s original lawyer, Mike Arnold, resorted to crowd sourcing and social media appeals to gain the evidence refused him in court. This only led to censoring by the Oregon State Bar and his resignation from the case.
Presenting defendants as rational actors is paramount to defense because occupiers and supporters are portrayed as terrorists and right-wing zealots. But they have friends in high places. Donald Trump wrote a scathing opinion piece in the Reno Gazette Journal during the occupation in January, 26, 2016. “How is it that we have a president. . .who encourages faceless, nameless bureaucrats to manage public lands as if the millions of acres were owned by agencies such as the Bureau of Land Management and the Department of Energy?” Trump asked. He also noted the “draconian rule of the BLM” in damaging local economies. All are subjects defendants are not allowed to bring up for various pretexts.
Defense was not allowed to play several videos. One was of Senator Harry Reid calling the original ranch protesters in Nevada “domestic terrorists” in 2014. Reid’s insult seems to have inspired the FBI and Homeland Security to become heavily involved in ranch and farm land disputes. They’ve also borrowed his terminology. Current Director of the Bureau of Land Management (BLM), Neil Kornze was previously a Reid aide. He was appointed almost to the day that the original “Bunkerville” land dispute began in Nevada in April, 2014. Only a coincidence. Another banned video, backed defendant Jeff Banta’s declared purpose for his visit to the Refuge. The video was made in 2012 of BLM initiated fires in French Glen, Oregon (BLM is one of chief plaintiffs.) The BLM fires raged out of control, consuming farms, livestock and a home. For making controlled burns, ranchers are currently imprisoned with serious charges. This BLM policy and government prosecution since 1989 was one of the major motivations for the Malheur occupiers. Ironically BLM is lodging suits against the ranchers in civil court as well and have first claim privileges against their ranches. BLM signs are up on Bundy land at this time. The Hammonds previously sued and won cases against the BLM, and there is bad blood between the agency and many ranchers and farmers in Western states.
According to several defendants, their central purpose was to force court battles over the government’s procurement and property rights of the Malheur Refuge and other federal properties. Proximate cause of the occupation was the re-imprisonment of the Hammonds: Dwight (74) and son Steven (46). This came after they served time, had already released and for the same crime. Judge Brown barred defense lawyers from bringing up any questions over “who owns the Malheur National Wildlife Refuge” even as she instructed the jury seek to understand the “state of mind” and motivation of the seven current defendants.
Defense objected to the presence of FBI agent Ronnie Walker in the courtroom as an observer, although he was on the prosecution witness list. When this was brought up to Brown, she failed to remove him, although no other witnesses are allowed to watch court proceedings. This is a general rule from official US Department of Justice materials, but apparently not required in Judge Brown’s court.
Michele Fiore for the Defense
Michele Fiore, a defense witness and Nevada Assemblywoman, refused to be intimidated by Brown on October 6, 2016. Fiore visited the Refuge in January, 2016, as a representative of the Coalition of Western States (C.O.W.S.). Fiore claimed that she determined “through Oregon officials” that “no laws were being broken” at the Refuge. Brown berated Fiore, ordering her to “stop making statements before the jurors and interpreting law.” Although Fiore is a lawmaker and Brown is not, Fiore’s statements are only “her opinion” Brown insisted. The Assemblywoman made a dramatic turn when she defied Judge Brown and passionately spoke of the “murder of LaVoy Finicum.”
The farcical nature is almost comical, if not for the high stakes. A federal court is making a case their agencies may confiscate private land, deny speech and assembly, challenge gun rights, control local police, supplant state and county laws and terrorize people while imputing it to targeted groups. It’s a big deal with surprising little publicity, although it is picking up steam. Early on, there were surprisingly few observers at the trial and this is no accident either.
A remarkable small chamber was used for this titanic trial. Defendants are allowed only two seats each for family or supporters. The public gallery is tiny, requiring observers and media to queue up an hour or so in advance for a chance at a seat. A larger public overflow area is available via video, but even that is threatened with closure at times and it is apparent the state resents public observation.
In one of Judge Brown’s more monomaniacal declarations, the gallery folk forgot themselves and snickered after a sarcastic remark by Ammon Bundy. An agent ordered silence, warning the possible loss of viewing privileges. Brown declared her ire over such offenses as “page turning”, throat clearing or clicking pens. Yet Brown jokes around on the stand and not only allows the courtroom a chuckle, but appears to enjoy it.
Brown’s delusions of grandeur in her little Federal fiefdom are growing as this case waxes on. Sometimes she forgets there are witnesses and appears to be losing control. On Oct 4th, while defense questioned Chris Briels, Brown suddenly exclaimed “sustained.” But there had been no objections. Rather than recuse herself or allow a mistrial, Brown rationalized her erratic behaviour and continued her dogged work for the prosecution. “I’m not going to let the witness speculate” she insisted as an excuse. The sheer autocratic attitude of the woman and her aversion to civil rights is spectacular. Brown appears a perfect face of the contempt some of these Federal agencies have for the people they are prosecuting.
Ammon Bundy’s attorneys are seeking a postponement until there is a ruling on appeals over Brown’s inconsistencies, and asserted mistreatment of their client in jail. They claim Bundy is malnourished and not being allowed access to materials to prepare for his defense, such as the internet. Their requests have been disregarded, which are becoming a theme in this courtroom. The Judge Anna J. Brown show goes on.
US District Court, Portland, OR. / Interviews with other observers and witnesses
Redoubt News https://redoubtnews.com/2016/10/07/brown-light-favorable-government/#comment-996
Reno Gazette-Journal http://www.rgj.com/story/opinion/voices/2016/01/07/trump-nevada-us-need-president-who-obeys-rule-law/78422530/