An Occupation In Eastern Oregon

Judge Rules Jury Won't Hear Lesser Charges In 2nd Malheur Trial

By Conrad Wilson (OPB)
Portland, Oregon Jan. 27, 2017 1:22 a.m.
People line up to enter the federal courthouse in downtown Portland on Tuesday, Sept. 13, 2016.

People line up to enter the federal courthouse in downtown Portland on Tuesday, Sept. 13, 2016.

Bryan M. Vance / OPB

U.S. District Court Judge Anna Brown ruled Thursday the misdemeanor charges defendants face in the second Malheur National Wildlife Refuge trial won’t be heard by the jury, but rather in a separate trial before a judge.


“The Court notes Congress explicitly intended the trial of petty offenses to be tried to the court, and expressly permitted magistrate judges to conduct such trials in order to facilitate their efficient resolution without the process associated with a jury trial,” Brown wrote in her ruling.

The ruling means prosecutors will effectively litigate the same case using the same felony charges on which they lost last fall, when a jury acquitted Ammon Bundy and six others.

Prosecutors announced in December they were not only moving forward with a second trial slated for February, but they would add misdemeanor charges, such as trespassing and destruction of property. Prosecutors wanted to give the jury more charges to consider as they weigh the evidence and try and prevent a repeat of last fall’s stunning acquittal.

In addition to the misdemeanors, the seven remaining defendants are facing the original felony charges: conspiracy to impede federal employees from doing their jobs at the Malheur National Wildlife Refuge. Some of the defendants have also been charged with carrying a weapon in a federal facility.

Related: US Attorney Billy Williams: Occupation Verdict 'Disappointing, Bitterly So.'

“In light of the fact that 18 citizen jurors will already be devoting an extraordinary amount of time to their jury service, the Court finds adding unnecessary duties to their service is not warranted,” Brown wrote in her order.

She said she plans to oversee the misdemeanor trial at the same time as the felony trial.


In a separate ruling Thursday, Brown said she would not be allowing evidence concerning the acquittals to be presented at the second trial.

"Admitting evidence related to the verdicts following the September 7, 2016, trial would be confusing and necessarily would require the jury to consider (and likely to guess) which evidence or aspect of the government's case the jury in the prior trial found insufficient," Brown wrote.

While evidence about the acquittals is now unlikely to come up at trial, Brown did rule last week that Ammon Bundy would be allowed to testify on behalf of the defense at the second trial.

Bundy is currently being held at a federal detention center in Nevada as he awaits a trial there for his role in the 2014 armed standoff near his father Cliven Bundy's ranch.

The occupation of the Malheur refuge near Burns lasted 41 days. Jury selection in the second trial is scheduled to begin Feb. 14.

Correction: An earlier version of this story said the judge's ruling was a blow to prosecutors. In fact, prosecutors argued for a judge, not a jury trial on the misdemeanor charges.

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