The first day of jury selection in the second Oregon standoff trial Tuesday ended with 41 prospective jurors still in the pool, and the judge not granting much leeway to either defense lawyers or prosecutors in their requests to bounce people for perceived biases.
Remarkably, the outcome of the first trial against seven co-defendants was not mentioned in court all day, nor was the name of the occupation leader Ammon Bundy, who was acquitted last fall.
“There was a trial last fall. They returned a verdict. There was a lot of publicity,” U.S. District Judge Anna J. Brown told the morning panel of prospective jurors summoned. “Did any of you come to any opinion?”
One hand shot up.
“Well just from the publicity, available information, it seemed that the jury got it right,” said a man only referred to in court as prospective Juror No. 11. “I don’t second guess the jury instructions or legal issues.”
“Does the fact that you know how another jury decided against seven other people involved in the occupation affect your ability to try this case fairly?” the judge continued.
“No, it does not,” he said.
The judge stressed that this trial involving four defendants has “to rise and fall” based on the evidence presented in this case, not on what happened in court last fall involving different defendants.
The four on trial are charged with federal conspiracy to impede federal workers from doing their work at the Malheur National Wildlife Refuge through intimidation, threat or force stemming from the 41-day refuge occupation. Some face other weapons and depredation of property charges. Verdicts on other misdemeanor charges will be issued by the judge.
Another woman, a member of the Audubon Society, told the court she was “surprised at the outcome” of the initial trial. “It’s not what I had expected,” she said.
“Can you set that aside?” the judge asked. “Could you try these four defendants based on what happens here?”
“Yes,” the woman replied. “I would like to be a juror.”
After the first panel was queried, defense lawyers sought to dismiss two people for cause, based on their answers to a lengthy jury questionnaire.
Defense lawyer Jesse Merrithew urged the court to dismiss a woman who wrote that “armed occupation, preventing people from doing their job, it sounds extreme to me.” During questioning, the woman said she didn’t agree with “extreme measures to get your point across.”
Assistant U.S. Attorney Ethan Knight countered that the woman, in court, told the judge she could be fair and impartial.
The judge kept her on.
Merrithew also asked the court to toss out a man who wrote on the questionnaire, “I think there’s better ways to achieve what you’re trying to achieve than trying to start an armed rebellion.” Merrithew argued that the defense team would face an “uphill battle” trying to change the man’s mind.
Knight countered that the man told the court that he recognized his initial opinion about the refuge occupation was only informed by “word of mouth,” and he would fairly evaluate the facts presented in this case.
Knight suggested another potential juror’s view that the government’s management of land is poor would make him better suited to be to be relieved from jury service. This man, Knight argued, professed animosity towards the federal Bureau of Land Management.
The defense countered that there’s a big difference between disagreeing with a federal policy, and expressing an opinion about the defendants in a criminal case.
The judge kept the man in play.
“Each expressed opinions but articulated a willingness to decide the case fairly,” the judge found.
A Burns High School graduate alerted the court that she knew a handful of the witnesses, including Harney County commission chair Judge Steve Grasty and others, but said she wasn’t aware of the outcome of the first trial stemming from the refuge occupation. She said she had worked one summer for the U.S. Forest Service in Burns and had a positive experience, but hasn’t had ties to the city for about 11 years.
The judge asked her how she felt about having to judge the credibility of people from her hometown who would be called as witnesses.
“I would like to say that I could,” the Burns High School graduate replied.
Her one concern is that she would likely be recognized by a witness, and thus her identity would be known. “It is a big case, and it is a small town,” the woman told the court.
Brown, who has worked to insulate the jurors in the case by referring to them only by number, decided to dismiss her. “I think she’s in an impossible situation,” the judge said. “Because of who she is, she’s known and that’s just not right.”
Prosecutors asked the court to dismiss another woman who spoke of some anxiety if she served on the jury, suggesting she be released for hardship. The woman also had written in her jury questionnaire that she thought the government response during the refuge occupation was “heavy handed.”
Asked in court what she meant by that, the woman responded, “The fatality involved,” referring to the police fatal shooting of occupation spokesman Robert “LaVoy” Finicum on Jan. 26 as he was leaving the refuge to attend a community meeting in John Day. He sped away from a police stop, crashed into a snowbank to avoid a police roadblock and was shot after he emerged from his truck. Police said he had reached into his jacket at least two times to grab his loaded 9mm pistol, which officers found on him later.
Merrithew argued that the woman who spoke of some anxiety really was expressing a lack of confidence, and pointed out that she had told the judge in court Tuesday that she had no problem following her directions.
The judge kept her in the pool.
The defense attempted to throw out another juror who retired three years ago from the U.S. Forest Service, where he had worked 20 years. He began in fire suppression, then worked as a purchasing agent, buying everything from supplies for firefighters to airplane retardant and pens and pencils for the agency, he said.
Knight said there was no basis to dismiss the former U.S. Forest Service employee, as he said in court he could keep an open mind and be fair. “The U.S. Forest Service is not a named victim in the case,” Knight added.
The judge kept the man.
Merrithew also asked the court to dismiss a man who described himself as an “interested observer” of the Oregon standoff from its start, and wrote in his questionnaire, “It seemed like laws were broken,” and that keeping employees from going to their workplace seemed wrong.
The judge asked the man whether he could evaluate the facts in this trial fairly, for example if he’s told that refuge employees were not blocked from coming to work. “I would certainly reconsider that,” he said.
“Reconsidering suggests he’s not coming in applying presumption of innocence,” Merrithew argued.
The judge wasn’t convinced. He may not have used the best words, but Brown said she didn’t think the man’s remarks displayed any clear bias that would disqualify him.
Two of the prospective jurors said their fathers had worked for the Bureau of Land Management. Others said they had ties to law enforcement, including one man whose father had worked for the Los Angeles Police Department and had his police car overturned during the Watts riots.
One woman proclaimed she’s the kind of person she’d want on a jury if she were ever charged with a crime. Why? Whenever there was a squabble growing up with seven siblings, she said, her mother would hold court and question each of the children separately to find out what had happened. She said she learned to listen, to be fair and got practice “ratting out” those who did wrong.
Another man who said he works as a referee on the side said he’d bring those skills to the jury.
“You have to look at what’s happening in front of you,” he said, and disregard the people yelling from the sidelines.
Six people were dismissed for either financial hardships, such as a hospice chaplain who said he wouldn’t get paid during the weeks serving on a jury, or calendar conflicts.
A final panel of 25 prospective jurors will be questioned Wednesday morning, and then prosecutors and defense will have what’s called preemptory challenges, meaning they can ask to dismiss certain people for no reason at all. The defense has 15 such challenges, and the prosecutors have nine.
The judge expects 12 jurors and four alternates to be selected by Wednesday afternoon for what’s anticipated to be a four-week trial.
Opening statements are set to begin at 10 a.m. next Tuesday.
— Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian
Our editors found this article on this site using Google and regenerated it for our readers.
