‘Colossal failure’ in Bundy trial, Oregon juror says

By Derek Hawkins

The Washington Post

When jury deliberations began last month in trial for Ammon Bundy and six others charged in the armed takeover of Oregon’s Malheur National Wildlife Refuge, a guilty verdict seemed all but certain. Even defense attorneys admitted they were pessimistic.

“You don’t walk into a federal court and win a case like this,” Matthew Schindler, an attorney for one defendant, told The Seattle Times. “It just doesn’t happen.”

But jurors came back with a stunning decision: after deliberating for five days, they had found all the defendants not guilty of conspiracy to impede federal officers, the core charge in the case.

As Bundy and his compatriots walked free, critics of the armed standoff were left scratching their heads.

“It’s absolutely devastating. It’s awful,” Melissa Alfstad, who lives near the refuge, told The Oregonian. “We’re just disgusted with the verdict.”

The band of gun-wielding antigovernment protesters — 27 of them in total — had stormed the federal bird sanctuary in Southeast Oregon, holding it for 41 days in January and February before the last of them surrendered to authorities. The group’s spokesman, LaVoy Finicum, was shot and killed by police during the occupation as he tried to drive past a roadblock and allegedly reached for a firearm. After being arrested, many of the occupiers struck plea deals, but Bundy and others chose to take their chances in court.

Now, amid shock and backlash over the verdict, a key juror has come forward to explain why 12 people voted to acquit them.

The juror, a 44-year-old business student at Marylhurst University, defended the across-the-board acquittals in an email exchange with The Oregonian published this week, saying prosecutors fell far short of proving the conspiracy charges. Referred to only as “Juror 4,” he asked to remain anonymous out of fear that his remarks might draw threats.

“It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove ‘conspiracy’ in the count itself — and not any form of affirmation of the defense’s various beliefs, actions, or aspirations,” he said.

According to the juror, everyone on the jury agreed that the protesters used intimidation, threats and force during the occupation to prevent workers from the U.S. Fish and Wildlife Service and Bureau of Land Management from performing their duties. But prosecutors failed to show that Bundy and the others had conspired to do so, he said.

“We were not asked to judge on bullets and hurt feelings, rather to decide if an agreement was made with an illegal object in mind,” Juror 4 said. “It seemed this basic, high standard of proof was lost upon the prosecution throughout.”

At times, the juror continued, prosecutors came off as arrogant, asking them to infer the existence of a conspiracy. That apparently irritated some on the jury.

“Inference, while possibly compelling, proved to be insulting or inadequate to 12 diversely situated people as a means to convict,” he said. “The air of triumphalism that the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.”

Deficiencies in the prosecution cropped up throughout the proceedings, the juror told The Oregonian. Prosecutors did not present witnesses who showed that the group intended to impede federal workers, the juror said, planting “a seed of doubt that grew.” Nor did prosecutors present evidence that showed a conspiracy between Bundy and another occupation leader who pleaded guilty, he said.

“These two major holes in the evidence record proved to cause insurmountable doubt for me,” he said.

Prosecutors said they were disappointed in the verdict, but have stood by the theories they offered at trial. U.S. Attorney Billy J. Williams said employees at the refuge were put in harm’s way when the occupiers took it over and rejected suggestions that the response from law enforcement was excessive.

“We still think it’s illegal to take over a public structure on public land at the end of a gun,” Williams told The Oregonian last month.”There’s a distinction between lawful protest and committing criminal acts to prove your point.”

The occupation started with a peaceful protest against the imprisonment of two Oregon ranchers who were convicted of arson after setting fires that burned federal lands. Bundy and the others said their takeover of the wildlife refuge was a broader demonstration against the federal government’s ownership of lands in the American West, which the group calls a violation of the Constitution.

When Bundy took the witness stand, giving 10 hours of fiery testimony, the jury was skeptical, Juror 4 said.

“It was clear that there was no juror who received Ammon’s testimony as fully honest, and several who felt manipulated,” he said. “Even those who felt he was sincere in his beliefs found examples of inconsistency in his testimony.”

He added: “And I don’t think it was endearing to us jurors for him to characterize the entire federal court system, of which we were a key part of, as rigged against himself.”

Still, parts of Bundy’s testimony seemed to undermine the notion of a conspiracy, the juror said. He said he took note when Bundy talked about asking to meet in person with the FBI and being denied. On top of that, visits from politicians to the occupation site, coupled with a lack of engagement from law enforcement, “caused me to see how occupiers could view their presence as something other than illegal,” the juror said.

The emails with The Oregonian also discussed Juror 4’s role in dismissing a juror who reportedly said on the first day of deliberations, “I’m very biased.” That juror had previously worked for the Bureau of Land Management as a ranch tech and firefighter, but he had told the judge overseeing the case that he would be able to examine the evidence impartially.

During deliberations, the juror brought up evidence that was never admitted in the case, refused to consider the defendants’ state of mind, and used “imaginative theories,” according to Juror 4. As a “last resort,” Juror 4 sent a note to the judge asking that he be dismissed, saying the jury was wasting time dealing with his “bizarre” interpretation of the case. The judge replaced him.

The verdict, when it came down, drew a torrent of criticism. Some people argued that the all-white jury’s acquittal of a nearly-all-white group of armed protesters was a damning example of “white privilege” in action. The fact that it came down the same day as Native American protesters in North Dakota were pepper sprayed and arrested by officers in riot gear only added to the outrage.

Others worried that the verdict would embolden other militants to target federal agencies, as The Washington Post reported.

“It is entirely possible there will be threats or intimidations from militants that believe such actions are justified by this verdict,” John Horning, executive director of WildEarth Guardians, in a statement.

Juror 4 said he was “baffled” by the “flippant sentiments” in some responses.

“It was not lost on us that our verdict(s) might inspire future actions that are regrettable,” he said, “but that sort of thinking was not permitted when considering the charges before us.”

“Do these folks even know what it took to arrive at a verdict on any one of these counts?” the juror continued. “How could 12 diverse people find such agreement unless there was a colossal failure on the part of the prosecution? Don’t they know that ‘not guilty’ does not mean ‘innocent’?”