The four defendants slated to go to trial for their alleged roles in the occupation of the Malheur National Wildlife Refuge were in court Tuesday for pretrial hearings that got off to a bit of a rocky start.
Before the hearing began, Jason Patrick, Darryl Thorn, Jake Ryan and Duane Ehmer huddled in the courtroom on the 9th floor of the U.S. District Courthouse in downtown Portland, the same courtroom where months ago a jury acquitted occupation leader Ammon Bundy and six others of the same felony charges the government is pursuing in this second trial.
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Jury selection is set to begin next week. Originally, seven defendants were part of this next trial. The government made plea deals with four defendants, including Thorn, but his presence Tuesday was evidence that at least for now that deal appears to have fallen apart.
“They [the government] didn’t offer me anything and I wouldn’t have taken it because this whole situation pisses me off,” Ehmer said before proceedings got underway.
When U.S. District Court Judge Anna Brown entered the courtroom, Patrick didn’t stand, a common practice when court is called into session.
“Is there a reason you didn’t stand, Mr. Patrick?” Brown asked.
His reply wasn’t audible. Brown said she didn’t want Patrick to be singled out and draw attention to himself in the presence of the jury.
“I’ll stand for the jury,” Patrick told the judge, still seated at his front row table amid a courtroom full of standing FBI agents, prosecutors, attorneys, on-lookers, courtroom staff and fellow defendants.
“Alright, then we’ll leave it at that,” Brown said.
As the proceeding continued, the court addressed a motion to suppress evidence recovered during Ehmer’s arrest.
His attorney, Michele Kohler, argued the way the FBI went about its arrest violated Ehmer’s constitutional rights.
During the arrest, the FBI recovered a 19th-century “black powder pistol” and a pouch containing some cash, gas cards and checks made out to Friends of the Malheur, a nonprofit that supports the eastern Oregon refuge.
Kohler is trying to keep that information from getting into trial.
But prosecutors disagreed.
Assistant U.S. Attorney Craig Gabriel said there was no violation of Ehmer’s rights during the arrest. Among other things, he said the FBI agents had probable cause.
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“The motion to suppress should be denied,” Gabriel told the judge.
Kohler stood and responded that the arrest warrant, which the government has based its arguments on, wasn’t signed until Jan. 28, a day after Ehmer was arrested.
The government struggled to respond to that argument. Brown spent upwards of 15 minutes reading the case file aloud, for evidence of a warrant signed earlier.
“We have a fundamental problem with the government’s reliance on the arrest warrant,” Brown said.
“It’s very curious to me that [FBI agents] all testified to an arrest warrant when there isn’t one,” Brown said, referencing testimony taken in court Monday. “This is a problem.”
Brown asked prosecutors to supplement the record so she could rule on whether evidence from Ehmer’s arrest would be allowed in trial.
At Tuesday’s hearing, prosecutors and the defense also reviewed questionnaires of potential jurors, dismissing those for hardships or bias.
Brown said more than 1,000 summons went out, but about 200 people never responded — something she called “unfortunate.”
Answers of those who did fill out their questionnaires were read aloud in court as the government, defense and Brown all sought to begin the process of seating a dozen impartial jurors and four alternates.
The defendants are “idiots with guns and flags,” said Jesse Merrithew, Ryan’s attorney, reading the response from one dismissed juror. “Those guys ran all over the refuge armed all the time.”
Another potential juror wrote in their questionnaire that the defendants “disgust him” and called them part of an “anti-American terrorist group,” Merrithew read.
Another wrote that the event showed racial biases in the criminal justice system, while someone else said he was close with law enforcement, which would bias his perspective.
Two others who were dismissed because they said they worked for the U.S. Fish and Wildlife Service, which operates the Malheur refuge. One employee wrote they were “very frustrated by the actions at the refuge and believe the defendants should be held accountable.”
Another potential juror, who was dismissed, said they thought “getting the FBI involved is overkill.” Another wrote the Bureau of Land Management “tried to set fires to my friend's house.”
As the proceedings played out, Thorn appeared to sleep, head down on table he shared with his attorney, Marc Freeman.
While Brown hasn’t yet ruled, she indicated that Ammon Bundy and Ryan Payne would be allowed to fly to Oregon in the custody of the U.S. Marshals to testify in person during the trial.
At this point, the second trial appears it will last well into March. Jury selection begins Feb. 14 and could last several days.
Prosecutors estimate their case will last about five days, ending sometime around Feb. 28.