Twelve jurors resumed deliberations this morning in the trial of Ammon Bundy, his brother Ryan, and five other militants charged with conspiracy in the armed occupation of the Malheur National Wildlife Refuge.
All seven defendants presented their own defenses, some in person and some through counsel. Because defense attorneys presented evidence that was not addressed by the prosecution case, federal prosecutors were also afforded a chance to present their rebuttal after the defenses had all rested. Then each defense made their own closing argument, leaving jurors with six weeks’ worth of testimony and argument to consider.
So it’s understandable that the jury may need some time to properly do the job. According to Conrad Wilson of Oregon Public Broadcasting, they are scheduled to meet as late as Thursday this week. If no verdict is reached by then, deliberations will resume on Monday.
But defendants also undermined their own cases at times. Taking the stand, Shawna Cox tried to rebut the government’s description of her leadership in the takeover by comparing herself instead to a neighborhood volunteer. But in video she recorded on her own cell phone and had her attorney present in court, Cox can be heard urging fellow occupier LaVoy Finicum to “gun it, gun it” and run an FBI roadblock.
Cox was apparently trying to raise the jury’s sympathies for Finicum, who was killed by Oregon State Police moments later. Right wing militia ‘patriots’ have tried to frame Finicum’s shooting death as a tragic abuse of power, but that is probably not how the jury will see things.
It was not the only defense strategy which seems likely to backfire, either. At times, some defendants even seemed to be working at cross-purposes.
Marcus Mumford, the lawyer representing Ammon Bundy, played audio for the jury in which his client told an FBI negotiator “the last thing we want to do is leave the refuge.” If the occupiers left, Bundy worried, “those people who are doing this will go right back into the refuge — the BLM, US Fish & Wildlife Service, and put the chains right back on to the people.”
As reported in Oregon Public Broadcasting’s This Land is Our Land podcast, that evidence tends to buttress the government’s case rather than the defense. Prosecutors must prove that the occupation was intended to block federal employees from doing their jobs, a burden of proof that is not as easy to meet as one might think.
“His problem wasn’t with the [federal] employees,” Mumford told the jury in his closing argument. “His problem was with their employer: the federal government. It won’t respect its limits.”
Described by one trial observer as a “sovereign citizen true believer,” Mumford has consistently arrived for court unprepared, testing everyone’s patience with meandering lines of inquiry. When Ammon Bundy took the stand, Mumford’s direct examination took three full days; by contrast, Assistant US Attorney Ethan Knight completed his cross-examination of the defendant in just fifteen minutes.
Mumford’s disorganization clearly annoyed U.S. District Court Judge Anna Brown. “You’re going to lose them,” she noted, worrying that Ammon Bundy’s testimony “took too long.”
Ammon, his brother Ryan, and co-defendants David Fry and Jeff Banta also face federal firearms charges associated with the alleged conspiracy. When federal agents testified about the guns recovered from Malheur, defense counsel tried to sow doubt in the jury by pointing out that they had not fully traced every firearm recovered from the facility or established which occupiers owned them.
But in the cell phone video that Shawna Cox played, Ryan Bundy can be heard asking “Where are the guns?” during the initial traffic stop. Federal agents recovered two long guns and pistols from the vehicle. Jurors may therefore decide they don’t need perfect evidence in order to find defendants guilty.
Furthermore, jurors must find the defendants guilty of conspiracy before they can even consider charges for guns and theft of government property, not the other way around. So even if the defense has managed to instill reasonable doubt on those secondary charges, it doesn’t undermine the conspiracy case at all.
“At the end of the day, there is an element of common sense that demonstrates the guilt of these defendants,” Knight said in his closing argument. Described by observers as an intelligent group, the jury of nine women and three men seems likely to agree with him.
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