Malheur 7 – The Petulant Prosecution
by Shari Dovale
Wednesday began the remaining closing arguments from the defendants and their attorneys in the Malheur Protest Trial in Portland.
The prosecution acted like spoiled, petulant children with continuing objections through out. During Ryan Bundy’s quiet, yet powerful speech, the prosecution must have felt the jury responding because they had to break the flow and get the attention back on them.
First, Ryan told everyone he was not allowed to show a slide of the Constitution. That brought on the first objection. I’m not real sure what the grounds were other than him ratting out their tantrum to the jury.
He then attempted to quote a portion of Articles 4 & 6, but that brought another objection. Judge Anna Brown sustained the objection and reminded Ryan that he cannot read from the Constitution. She has repeatedly given orders that no one is allowed to ‘interpret’ law in her courtroom, and reading from the Constitution violates that directive.
It has been explained to me that closing arguments are typically the opportunity for each side to make their case. They are allowed to argue their theory of the case, even though the other side does not agree. I am told that it is almost unheard of to object during these arguments.
The defense did not object when the prosecution told untruths, they just rebutted when it came time for their turn. The prosecution, however, cannot contain themselves if it seems their case is swirling around the drain.
Tiffany Harris spoke for Shawna Cox next and gave an excellent presentation. She was very eloquent and presented several very important points.
She talked about the government picking winners and losers, and how this could be why they did not charge any Harney County residents in this case. It does not fit their narrative of ‘outsiders’ coming in to take over the county.
The government does not want you to know that Harney County used to be one of the most prosperous counties, yet now is one of the poorest. They don’t want anyone reminded that this economic disaster happened while the Federal government had control of about 75% of the county.
“Hold the government to it’s burden,” Harris said. They need to prove the charge they have or pick a charge they CAN prove.
The prosecution seemed to really be gunning for Harris with the numerous objections, but, she held her own quite well.
Per Olson represented David Fry very well in the closing arguments. Telling of the events on January 26th, he described David as being in great distress because what he feared most had happened. LaVoy Finicum had been murdered by the FBI, so he heard.
Olson explained that the government had not really challenged their theory. All they had really done is a bunch of mudslinging to sully the defendants.
Robert Salsbury, defending Jeff Banta, asked “How can you have a criminal partnership or agreement with someone you never met? You can’t!” Explaining that Banta had only arrived at the Refuge on January 25, 2016, the night before LaVoy Finicum was shot by law enforcement, Banta had not had the opportunity to even meet most of the protesters, let alone form an agreement to commit a crime.
Banta, who had never taken part in a protest in his life, was only there to meet, and hopefully help, the Hammond family.
Salsbury, who described a confidential informant as the “Fabulous Fabio” went on to say that the government was not here to find the truth. The government thinks they can prove the case just by saying so, not by actual evidence.
The government, and Judge Anna Brown, had an opportunity to yell at two defense attorneys in one objection. The prosecution first objected to Salsbury’s commentary, but when Per Olson jumped up to defend the attorney, Judge Brown yelled for him to “Sit Down!” That particular objection was unusual in another way as it ended up being actually overruled.
Matthew Schindler gave an outstanding argument on behalf of Kenneth Medenbach. Medenbach was not in the courtroom this week due to medical treatments he is undergoing. He is sure to hear of the terrific job that Schindler did in front of the jury.
Explaining that farming and ranching is difficult enough already, but the government doesn’t care. This, naturally, received another objection. Always the most polite, Schindler just said, “Thank You” and moved on.
Schindler explains that the essence of the Rule of Law is enforcement. But, the FBI did not do anything to stop the protest. When the protesters were in town, the LEO’s would wave at them, or talk to them. The FBI went to church to worship with a leader of the protest and allowed him to walk away.
Is it any wonder that everyone believes it was a legitimate protest? The FBI had more than enough opportunities to make things very uncomfortable for the group, including turning off their power supply, or their cell phone service. Even deliveries were regularly made to the refuge during the month of January.
When Representative Greg Walden addressed the US House on January 5, 2016, this seemed to confirm for Kenneth Medenbach that this was a lawful protest. He started crying, believing that after 21 years of civil disobedience on the Federal land issues, someone was finally listening.
Talking of the “Closed” sign that Medenbach placed on the door of their local BLM office, Schindler said, “Only the Federal Government can make a Federal case out of a sign that says CLOSED.”
“Look around,” Schindler said, pointing out the defendants. “Is that an army that’s going to scare the government?”
Lisa Maxfield described Neil Wampler as “an Old Hippy” during her closing argument.
She spoke of his 2 emails to Sheriff David Ward and reminded everyone that Ward never even turned those over to the FBI until after he heard Wampler had been arrested. Ward didn’t care about the emails, as he saw them as “clutter.”
Maxfield made some excellent points, including reminding the jury that the instructions only mention 2 specific agencies. The US Fish and Wildlife and the Bureau of Land Management are the only agencies mentioned as being “impeded”. Not the FBI and not Sheriff Ward.
Maxfield does admit that her client has a big mouth, but “If you are not going to offend someone, you don’t need the First Amendment.”
Craig Gabriel did not let any opportunity to disrupt the defense get past him. Ethan Knight was originally scheduled to give the final rebuttal, however, Gabriel must have really had his shorts in a twist because he jumped up to respond himself.
Beginning by reminding the jury just how dangerous this situation really was at the Refuge, after all they had a history from Bunkerville.
At one point, Ryan tried to object to the obvious misstatements by Gabriel, but Judge Brown shut him down by saying that he was allowed because this is “argument.” (Funny how that was good for the prosecution but not the defense.)
Gabriel did state during this argument that a Redress of Grievance is not a legal document. This was his implication as to why the defendants did not receive any responses from their elected officials. I do not think he has read the First Amendment.
But Gabriel pushed on, trying to get as much reaction from the gallery as he was from the defense. At one point he calmly stated that the events on January 26th, in which LaVoy Finicum was murdered by Law Enforcement, was just a regular, basic traffic stop. So I guess every ‘regular’ traffic stop has overhead video, roadblocks, marksmen in the trees and 3 or 4 (who knows how many) times the number of LEOs needed.
And so it continues….
The jury was given the case at the end of the day, and they will be in Thursday morning to begin their work. A 3-day weekend is planed for them and their deliberations will continue on Monday, if a verdict is not reached.