An Occupation In Eastern Oregon

Malheur Judge Presses Prosecutors For Specifics In Misdemeanor Case

By Conrad Wilson (OPB)
Portland, Oregon March 8, 2017 10:31 p.m.

U.S. District Court Judge Anna Brown heard evidence Wednesday related to the misdemeanor charges against four defendants linked to last year’s armed occupation of the Malheur National Wildlife Refuge.

For the last three weeks, jurors in this second trial have watched videos, listened to witness testimony and spent hours looking at maps of the refuge — all related to felony charges brought by federal prosecutors.


Testimony in that portion of the case wrapped up Tuesday and jurors began their deliberations Wednesday morning. Jurors did not reach a verdict after a full day of deliberations. They will resume deliberations Thursday morning.

Related: 2nd Malheur Trial Goes To Jury, Tempers Flare Outside Courtroom

At the same time, Brown conducted a hearing to address a series of misdemeanor charges the government added for defendants Jason Patrick, Duane Ehmer, Jake Ryan and Darryl Thorn.

Those charges, which include trespassing and destruction of property, are being decided by Brown, not jurors.

From the beginning, Brown pushed prosecutors to give specific evidence against each of the defendants. It was a theme that continued throughout much of the morning.

Assistant U.S. Attorney Geoff Barrow handed Brown and the defense a list of evidence presented throughout the trial that corresponded to the misdemeanor charges.

Brown asked if the government had an opening statement. Barrow replied he did not.

Barrow did introduce two new pieces of evidence, one being aerial video of Patrick driving a Dodge Durango the government said is owned by the refuge. The other evidence was photos that reportedly show Thorn wearing a mask over his face and riding a U.S. Fish and Wildlife all-terrain vehicle.

After additional testimony and cross-examination from the defense, the government rested.

“The government rests on all misdemeanors?” Brown asked.

“Yes, your honor,” Barrow said.

In its rebuttal case, the government went charge-by-charge.


On the trespassing count, Barrow said the evidence heard at trial was “overwhelming.”

Barrow pointed to a number of photos showing “employee only” signs on office doors, two others at the refuge entrance that said the refuge was open from sunrise to sunset and others.

But Brown said the government needed to make evidence specific to each defendant.

“You haven’t been,” she said. “It’s not the court’s duty to search for the evidence."

Barrow pointed to a photo that showed defendants Ehmer, Ryan and Thorn in the firehouse during the time of the occupation.

The defense seized upon the questions raised by the judge.

Andrew Kolhmetz, Patrick’s standby counsel, said no testimony in the trial indicated his client saw any signage.

“The evidence is simply insufficient to show that he trespassed,” Kolhmetz argued.

Attorney Jesse Merrithew pointed out that the truck occupiers used to block the refuge entrance actually covered one of the signs when it backed up to allow people in. Merrithew also said there was more than one entrance to the refuge.

“There no evidence Mr. Ryan saw the signs,” Merrithew said.

Ryan appears in the refuge bunkhouse and firehouse in photos and videos from the occupation presented by the government. Merrithew said no evidence showed the occupiers' presence in those facilities was unlawful.

Michele Kohler, Ehmer’s attorney, said there was no evidence of calls from the FBI to her client telling Ehmer to leave the refuge.

“The government has failed to show the evidence beyond any reasonable doubt that Mr. Ehmer knew he was trespassing during his time at the refuge,” she argued.

The sentiment was echoed by Marc Friedman, Thorn’s attorney.

“There was no notice of trespassing served,” Friedman said.

Barrow said the defense's arguments were not credible.