The Persecution of the Malheur Protesters
By Shari Dovale
The high-profile case of the Constitutional Protest at the Malheur Wildlife Refuge finished with the government rejoicing at guilty verdicts on Friday, March 10, 2016.
The acquittals of Ammon and Ryan Bundy, as well as 5 others last fall, was a very harsh blow to the government that reportedly spent in excess of $100 million on their persecution of these patriotic American citizens.
Changing their tactics for the second trial, prosecutors Ethan Knight and Geoff Barrow, along with Judge Anna Brown, ensured a biased verdict.
Repeatedly during the course of the trial, Judge Anna Brown refused to allow testimony and evidence to be presented by the defense that could have cast doubt on the government’s case.
On one particular day, Judge Brown’s rulings cut the defendants witness list from 18 down to 8. Then she chastised the defense for not having enough witnesses to fill the afternoon.
When she did allow defense witnesses to testify, she severely limited their testimony, with several witnesses only on the stand for minutes, and a few telling me later that they were not allowed to give the jury the whole truth.
A major point of contention in these trials were the Confidential Human Sources (CHS) also known as paid FBI Informants. Evidence of 15 informants came out in the first trial, but when the defense tried to pursue this during the second trial, Judge Brown shut them down.
Defense lawyers reportedly issued subpoenas to at least 3 informants, Will Kullman, Fabio Minoggio, and Allen Varner. Yet none of the 3 gave any testimony.
It was brought to light that the Informants were allowed to break the law, and possibly entrap the defendants. FBI Special Agent Ronnie Walker admitted under oath that paid FBI informants who infiltrated the protest were authorized to conduct illegal activities while at the refuge.
One of these examples was Fabio Minoggio, who gave firearms training and led the protesters to practice shooting weapons on a (repeatedly played) video at the refuge boat launch. Minoggio, otherwise known as John Killman, also provided training to protesters in hand-to-hand combat, how to “clear” a vehicle, and interrogating people.
Another informant was Allen Varner, who was reported to be a leader of a security team on the refuge. He was in position to order defendants to break the law, therefore setting them up for prosecution.
However, jurors were not allowed to hear most of these details.
One of the most damaging points of this trial was when Judge Brown insisted that Ammon Bundy, and the other defendants from the first trial, were to be called “Co-Conspirators” though they were acquitted of these charges. Legally, they are NOT conspirators, but were constantly referred to as such. This had to have prejudiced the jury in favor of the prosecution.
Brown also allowed video excerpts that could not be authenticated. This is a direct slap at the Constitution’s Sixth Amendment, which reads in part: “to be confronted with the witnesses against him”. The defense could not cross examine a video, and the person that made the video was excused by Judge Brown from testifying.
Judge Brown did suggest that Ryan Bundy could testify to the video, which was another vindictive blow to the defense, as Bundy is under indictment in Nevada for the Bunkerville Standoff, and could not possibly wave his rights under the Fifth Amendment: “nor shall be compelled in any criminal case to be a witness against himself”.
Other defense witnesses reported threats and intimidation from the prosecution. At least four witnesses were told to speak to council as their testimony could allow the government to prosecute them as well, with Brand Thornton and BJ Soper among this list. This was clear intimidation of witnesses and, again, hampered the defense.
It was publicized after the last trial that Judge Brown talked to the jurors about how better to try these cases. They told her that they really wanted to convict and suggested that the prosecution should have allowed misdemeanor charges, including trespass, to give the jury more options.
The prosecution added several of these charges, just a couple of weeks before the start of the second trial, that were not made during the first trial. The charges were considered misdemeanors, though they carry monetary penalties as well as jail time. Despite this, Judge Brown decided that the jurors would not deliberate on these charges. She held a Bench Trial so she could decide the fate of the defendants herself.
It was well known in the courtroom that the Bench Trial was treated as ‘a given’ by the prosecution. Judge Brown seems to have heard these rumors and berated AUSA Barrow for not being prepared. When asked for his opening statement, Barrow handed out a sheet of paper that gave a graph of the charges and indicated that this should be enough of a statement. His lack of presentation was another indication that he felt the Bench Trial was an exercise in ‘going through the motions‘.
Yet the defendants should have been allowed a jury trial on these charges as well. The sixth amendment clearly outlines: “In ALL criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury.” No where does it say that misdemeanors will not be allowed a jury trial.
The only bright spot in this entire propaganda-hyped persecution is that these defendants now have the opportunity to bring this case to the next level. After the May 10th sentencing, defendants will file for their appeals. We can only hope that Judge Brown allows them to remain free, and not incarcerated, during the process.
The Bill of Rights
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.
No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.
In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.