Two Thursdays ago, while I prepared to hit the road, a federal jury did an amazing thing. Herein I answer a reader request for commentary.
Ammon Bundy, Ryan Bundy, Shawna Cox, Jeff Banta, Kenneth Medenbach, David Lee Fry and Neil Wampler were charged and tried for “taking over” a remote federal facility in Oregon. On October 26th a jury found all defendant’s not guilty on all counts. Well, Ammon Bundy still faces a count of tampering for disabling a few cameras. But the long-term sentence charges were dismissed unanimously by the jury.
While the case and verdict is seen by some who seek limited government as a success, it really is just another example (although with a happy ending) of what is wrong with the justice system [SIC]. My summary of these proceedings is that they represent a fluke of judicial process and little more.
First, I find it a little funny that just about everyone on the right (to include many limited government advocates) pulled for the DOJ/FBI last week during the odd continuation of the Hillary email/corruption/pedo-pizza carnival of doom. It was the exact same outfit that prosecuted the Bundys. Now that Comey has once again closed the Clintongate files it is clear to anyone of room temperature IQ or higher that justice in America really isn’t. Unless there’s a slip and a fluke.
I have recounted before how the justice system [SIC] in general, and the federal system in particular, work. 99% of federal defendants are railroaded into court for crimes not set forth in the Constitution. Of those, around 97% enter into some kind of plea agreement. Of those remaining who demand and receive a trial, maybe 90% are convicted. So, within a margin of statistical error, nearly 100% of federal inmates and convicts are in prison for nothing.
That’s not justice. My thoughts on the jury system of today.
The Bundy bunch beat the odds here. And that is worth celebrating. From the New York Times:
PORTLAND, Ore. — Armed antigovernment protesters led by Ammon and Ryan Bundy were acquitted Thursday of federal conspiracy and weapons charges stemming from the takeover of a federally owned wildlife sanctuary in Oregon last winter.
The surprise acquittals of all seven defendants in Federal District Court were a blow to government prosecutors, who had argued that the Bundys and five of their followers used force and threats of violence to occupy the reserve. But the jury appeared swayed by the defendants’ contention that they were protesting government overreach and posed no threat to the public.
You may recall that one associate, LaVoy Finicum, was murdered by police as the others were arrested – gunned down in cold blood. Eleven others, playing the statistical game, plead guilty prior to the Bundy trial.
The government had a huge mountain of evidence. The defenses were rather maverick. And they could be as all that evidence still did not establish much. Frequently, when they don’t simply manufacture evidence and testimony from thin air, Justice [SIC] will overload a jury and hope the members become confused. Most do. Not here. In a remarkable turn of events, this jury actually paid attention and gave real thought to what they heard and saw.
Roger Roots, there in person in court, chronicled the various outrages and the unlikely outcome:
The defendants were accused of conspiring to prevent employees of the U.S. Fish & Wildlife Service and Bureau of Land Management from performing their duties at the Malheur National Wildlife Refuge in rural eastern Oregon. Yet federal prosecutors failed to produce a single piece of evidence of any specific threat aimed at a USFWS or BLM employee.
The U.S. Justice Department alleged in Count 1 that the seven defendants (and many others) had engaged in an “armed standoff” at the federal wildlife refuge with the intent of scaring away the various government employees who normally work there. Every defendant was utterly innocent of the allegation. Some were not even aware that federal employees normally worked there). Several defendants were also charged with firearm possession in federal facilities with the intent to commit a federal felony (the conspiracy alleged in Count 1). And two defendants, Ryan Bundy and Ken Medenbach, were accused of stealing federal property valued over a thousand dollars.
In fact, Ammon Bundy and the other defendants took a monumental (and quite daring) stand for the plain text of the Constitution when they occupied the Malheur Refuge in January of this year. They pointed to Article I, Section 8, Clause 17 of the U.S. Constitution which seems to plainly forbid the federal government from owning land inside the states unless the states agree to sell such real estate to the federal government.
Needless to say, the present reality in the American west is in sharp contrast to this piece of constitutional text. The feds claim to own and control millions of acres of land in western states—most of which (such as the Malheur Refuge area) was never purchased from state legislatures or anyone else.
The most frightening revelations from the Malheur 7 trial involved the lengths which the U.S. government went to in its prosecution. During the Bundy occupation, the FBI literally took over the tiny nearby town of Burns, Oregon and transformed it into an Orwellian dystopia. There were license plate scanners mounted on utility poles, drones throughout the skies, and military transport vehicles speeding across the countryside. FBI agents captured and monitored every phone number connected between every accused occupier. Federal and state police appeared in such numbers that their total numbers will probably never be fully tallied.
The occupation was met with a bonanza of government spending by agencies at every level. The U.S. Fish & Wildlife and BLM employees who were supposedly too frightened to go to work were put up in luxury hotels, along with their families. (In the aftermath of the occupation, the feds have spent further millions to “rebuild” the Refuge, supposedly because the occupiers tainted it; prosecutors were openly planning on asserting the inflated “bill for damages” at sentencing in the event the defendants were convicted.)
Most startling of all were the undercover government informants that were revealed in the trial. After weeks of wrangling and arguing with defense lawyers, the Justice Department finally stipulated that at least nine undercover informants were planted among the Refuge occupiers. Thus, informants outnumbered the defendants on trial. One informant was even a “bodyguard” for Ammon Bundy and drove him to his arrest. Another informant admitted he trained occupiers in shooting and combat skills.
After a week of deliberating over the evidence, the jury came back with its verdict yesterday afternoon, acquitting every defendant. (Jurors said they were divided regarding an accusation that Ryan Bundy aided and abetted the theft of government property when he and others climbed utility poles and took down two of the government’s surveillance cameras.)
There are reports that the U.S. Justice Department spent $100 million on the case. But twelve Americans saw through the government’s cloud of disinformation and dealt a mighty blow for liberty.
I would call this less of a mighty blow for liberty and more of a small blow for jury nullification. John Whitehead agrees:
In finding the defendants not guilty—of conspiracy to impede federal officers, of possession of firearms in a federal facility, and of stealing a government-owned truck—the jury sent its own message to the government and those following the case: justice matters.
The Malheur occupiers were found not guilty despite the fact that they had guns in a federal facility (their lawyers argued the guns were “as much a statement of their rural culture as a cowboy hat or a pair of jeans”). They were found not guilty despite the fact that they used government vehicles (although they would argue that government property is public property available to all taxpayers). They were found not guilty despite the fact that they succeeded in occupying a government facility for six weeks, thereby preventing workers from performing their duties (as the Washington Post points out, this charge has also been used to prosecute extremist left-wingers and Earth First protesters).
Many other equally sincere activists with eloquent lawyers and ardent supporters have gone to jail for lesser offenses than those committed at the Malheur Refuge, so what made the difference here?
The jury made all the difference.
These seven Oregon protesters were found not guilty because a jury of their peers recognized the sincerity of their convictions, sympathized with the complaints against an overreaching government, and balanced the scales of justice using the only tools available to them: common sense, compassion and the power of the jury box.
Jury nullification works.
It works when it is applied by an intelligent jury. The problem is in the empaneling of such jurors. Again, here we saw a fluke. And the Bundy’s troubles are not ended. Ammon still faces the remaining federal count and the whole crew faces persecution in the Oregon state system (because Double Jeopardy is an outdated concept and the prohibition has all but vanished in America).
The odds of successfully assembling such a conscious jury elsewhere are slim at best. I always drew the jury pool analogy this way: go to any Walmart around midnight; pick out the first 12 shoppers you see; that is your jury. The results are predictable. Most juries favor whatever the government presents, truthful or lawful, or not. If they have doubts, the system is rigged in the government’s favor – rigged to obscure exculpatory evidence, limit defense arguments, and limit legal knowledge and questions from the jury.
This is more like it. College Humor.
It’s fortunate I had a little time to draft this up. I found an unrelated, recent, and far more typical case for comparison.
Four defendant’s in Richmond County, Georgia were charged with various counts of felony Medicaid fraud and a count of conspiracy to commit the frauds. The indictment said they defrauded the government program (itself nothing but a fraud) of more than $3 Million.
All four were acquitted last week of the underlying fraud charges. Three were acquitted entirely. The fourth, the alleged ringleader, was found guilty by the jury of the conspiracy count. He was promptly sentenced to the maximum prison term allowed, five years.
Here’s the problem here for justice. Under Georgia law, “A person commits the offense of conspiracy to commit a crime when he together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” O.C.G.A. 16-4-8 (2010)(emphasis mine).
If all parties were on trial together and the jury acquitted all but one of them of all charges, how then could the same jury find that the lone defendant acted as part of a conspiracy? There’s that elements of the law thing that isn’t met here. The judge should have entered a directed verdict of acquittal as to the last conspiracy count, a correction of jury fallibility in the interests of justice.
Such interest is a rare as the Bundy verdict. Georgia appellate courts (and others around the nation) have ruled such inconsistencies (illegalities) are allowable. They seem to regard them as a consolation prize for the state, which isn’t suppose to lose. The overall stats for state charges and trials mirror the federal trends closely.
Of these two cases, the latter is the standard, the former a fluke. A happy fluke but just that. I don’t see any greater awakening. However, given recent developments against the establishment (Trump, BREXIT, etc.) such a movement may be launching. If so, we must do everything we can to foster and support it. If you find yourself on a jury, take the government to task.
One never knows when one will find oneself seated at the Defendant’s table. Safeguard others’ liberty today as yours might be on the line tomorrow.
Support truth, freedom, and justice.