The U.S. District Court in Portland was packed Monday for what appeared be the final day of defense witnesses in the second trial stemming from last year’s occupation of the Malheur National Wildlife Refuge.
The defense continued to argue the refuge was a peaceful place where people were learning about the Constitution and land rights.
Attorneys also called witnesses who spoke about what drove them to the refuge in eastern Oregon’s high desert. Some witnesses for the defense said they were never prevented by law enforcement from entering the refuge. One of the FBI’s informants testified her handler never told her being at the refuge was breaking the law.
Federal prosecutors, meanwhile, sharply focused their cross-examinations on the fact federal employees were not able to go to work during the 41-day armed occupation.
The government has charged Jason Patrick, Jake Ryan, Darryl Thorn and Duane Ehmer with conspiracy to impede federal employees at the refuge from doing their jobs through force, threats and intimidation. Some of those on trial have also been charged with additional felonies, like damaging federal property and weapons charges.
Defense witnesses described the night of Jan. 26 as one full of fear for those who remained at the refuge, after law enforcement shot and killed occupation spokesman Robert “LaVoy” Finicum and arrested the leaders of the occupation on their way to a meeting in John Day.
Nicholas Fisher, who said he was performing guard duty at the refuge, testified Monday that he first heard of Finicum’s death while standing around a campfire at the refuge.
“David Fry said LaVoy was shot,” Fisher said.
Later in the evening, Fisher said he heard a helicopter flying near the refuge headquarters and took cover under an excavator.
In a tearful testimony, at times almost speaking in a whisper, Fisher said the helicopter “was trying to get a shot on us — is what we thought.”
“Was that as scared as you’ve ever been in your life?” asked Andrew Kohlmetz, Patrick’s standby attorney.
“Yeah,” Fisher said softly.
Fisher testified he left the refuge on Jan. 27 and headed to an FBI checkpoint a few miles from the headquarters.
Michelle Kohler, Ehmer’s attorney, asked Fisher if he did anything with his cellphone.
Fisher testified he called someone, putting the phone on speaker, as he approached the checkpoint.
“I thought I was going to die,” Fisher said.
Fisher took the stand wearing a red T-shirt that read “Let’s give em’ Hellboy,” and showed a screen print of what appeared to be Ehmer riding his horse, named Hellboy. It was an iconic image throughout the occupation.
During cross-examination, Assistant U.S. Attorney Ethan Knight asked Fisher, “is that Mr. Ehmer’s horse on your shirt?”
“Yeah,” Fisher said.
Knight later asked Fisher to acknowledge he had no idea who flew that helicopter. Fisher agreed.
“It could’ve in fact been a FOX (television) helicopter from the Seattle area,” Knight said.
Earlier in the trial, jurors had seen a photo of a helicopter taken by an unmanned FBI drone. Initially, the defense said it was evidence the government was using helicopters to monitor activities at the refuge, but an agent later testified it was, in fact, a television station’s helicopter that entered the airspace over the refuge the evening of Jan. 26.
Daniel Ryan, defendant Jake Ryan’s father, testified about his son’s childhood and the family’s trip to the refuge.
He said he taught Jake Ryan to use firearms for hunting and sport.
“Like most of my sons, [he] learned at a very early age,” the elder Ryan said.
He also testified Jake Ryan learned about his right to bear arms while being homeschooled with his siblings.
“They learned it is a constitutionally protected, God-given right to own firearms,” Ryan said.
Sandy Anderson, one of the final four occupiers, testified Monday as one of the last witnesses for the defense. Anderson pleaded guilty to trespassing, a misdemeanor, for her role in the occupation.
She spoke about the fear that consumed those at the refuge after learning Finicum had been shot and killed.
“Something had gone wrong with the meeting in John Day,” Anderson said, recalling what she and others were hearing at the refuge Jan. 26.
She testified about moving to the west encampment area of the refuge with her husband, Sean Anderson.
“Why didn’t you just leave the refuge,” asked Jesse Merrithew, the attorney for Ryan.
“How could we leave safely?” Anderson replied. “We didn’t know what was going on.”
Merrithew asked if she was scared to leave the refuge.
“Terrified,” Anderson said.
Anderson spoke about being armed while at the west encampment, which the occupiers later named "Camp Finicum."
“Yes, we always have our Second Amendment with us,” she said, to laughter from the public.
Anderson testified she saw vehicles coming and going along the road. She said it was hard to tell whether cars were leaving or whether people were trying to leave and getting turned back.
Anderson said the final people at the refuge were trying to protect themselves from the FBI.
“What were you going to do against FBI armed vehicles?” Merrithew asked.
“Anything we could to stay alive,” she said. Anderson testified Ryan dug the trench to slow down the FBI and provide protection. She said the trench was for no other reason.
During cross-examination, Knight asked Anderson if she knew the federal employees at the refuge were unable to come to work because of the occupation.
“In fact, they showed up there,” Anderson said.
“They showed up there?” Knight asked.
“Yes, they did,” she replied.
Knight then played a recorded call from the time of the occupation with an FBI crisis negotiator and Sean Anderson. In the call, the FBI agent tells him he’s going to be charged with keeping employees from showing up to work.
On the call, Sandy Anderson said, “Wait a minute, we all have done this.”
Anderson testified the remaining occupiers were exhausted, noting that fatigue contributed to some of their actions at the refuge.
“You weren’t too tired to shoot at an FBI aircraft,” Knight said.
He then played a video in which Anderson can be seen standing at the west encampment in front of an excavator. On the video, she can be heard saying “eyes in the skies boys,” followed by Sean Anderson apparently shooting at the manned FBI aircraft.
Sandy Anderson testified the sound was not of gunfire.
“I think it’s the excavator making that noise,” she said.
The defense is expected to rest its case Tuesday. The government plans to call two of the refuge employees as part of its rebuttal case before both sides make closing arguments.
The case could head to the jury late Tuesday or early Wednesday.