A quick Internet search easily turns up evidence of the Malheur National Wildlife Refuge occupiers doing things that could pose a problem for them in federal court.
In one video clip, for example, David Fry filmed himself getting into a refuge pickup truck.
“It’s a U.S. government vehicle, and I think I’m going to take it on a little joy ride,” he says in the clip. “Now you got another charge on me, FBI: I am driving your vehicle!”
This week, Fry, Ammon Bundy and other defendants arrested in connection with the 41-day refuge occupation are scheduled to again appear in a federal courtroom in Portland. Judge Anna Brown has said she will set a trial date.
The defendants are facing a mountain of evidence, much of it available on social media. But the case is anything but an easy or simple win for prosecutors, experts say.
“The legal challenges aren’t very great in this case because I think it is very clear that the defendants broke the law,” said Jenny Durkan, who served as the U.S. attorney for the Western District of Washington from 2009 until 2014.
While it may not be difficult to point to laws that may have been broken, Durkan said prosecutors are still tasked with proving their case for each defendant beyond a reasonable doubt.
“The greater challenge is to avoid this becoming a circus atmosphere and yet another soapbox for the defendants to espouse their political beliefs,” she said.
It’s a complex case for a variety of reasons, including the sheer number of defendants, Durkan said. At last count there were 26.
“The whole thing is a storytelling,” she said. “[Prosecutors] want the jury to understand that this is not a case about lawful political speech. This is a case about people who violated the law.”
While it’s on the judge to keep the case on track and manageable for a jury, Durkan said prosecutors will almost certainly need to break the myriad counts into multiple trials with fewer defendants.
“The prosecutors are going to want to keep this as focused as possible on the legal proof,” Durkan said. “And the defendants are going to want to keep it as focused as possible on their political values.”
In other words, defense attorneys could argue that Ammon Bundy and his co-defendants were engaged in legally protected free speech.
“Our purpose, as we have shown, is to restore and defend the Constitution that each person in this country could be protected by it and that prosperity can continue,” Bundy said at a press conference on January 4th, near the start of the occupation.
“If I’m a defense attorney, I’m going to be trying to figure out how to say as much of that or all of that as possible is protected by the First Amendment,” said Steve Wax, who served as Oregon’s federal public defender for 30 years and now is the legal director at the Oregon Innocence Project.
Wax said less prominent figures in the occupation may not need to make a free speech defense. Rather, they could argue they weren’t part of the conspiracy, as the government claims.
“Other defendants may have a defense that ‘I was merely there. I wasn’t the leader. I wasn’t an organizer,” he said. “Other defendants may consider cooperating with the government.”
Defendants are still innocent until proven guilty. Wax said that even in a case like this, where it appears clear that crimes were committed in full public view, prosecutors still carry the burden to prove each specific charge. And defense attorneys can negotiate with prosecutors.
In most state and federal cases, Wax said, “The primary focus of the defense attorney’s work ends up as mitigation — attempting to reduce the sentence that your client is facing.”
Wax also notes that roughly 98 percent of federal cases end in guilty pleas. That means that, when everything is said and done, only a few of the Bundys’ co-defendants are likely to go to trial.