As U.S. District Judge Anna J. Brown pushes ahead to begin selecting a jury in September for the federal conspiracy trial in the takeover of the Malheur National Wildlife Refuge, defense lawyers have raised concerns about the volume of evidence they need to decipher and their need to know more.
Assistant U.S. Attorney Ethan Knight said he anticipated it will take the government three to four weeks to present its case.
Jury summonses have gone out and several hundred people have responded that they'd be available for a Sept. 7 trial, the judge said.
Brown is convening a work group to figure out how to lay out a courtroom to allow so many defendants to be tried at once and save some room in the gallery for spectators.
"I'm pushing us all hard because I respect the right asserted by the parties to a speedy trial and a fair trial,'' Brown said during a monthly status hearing Wednesday. "Just because the record includes a lot of information, doesn't mean it can't be done.''
Defense lawyers have said the evidence received so far is staggering: 6,000 hours of video, more than 13,000 photographs, up to 250,000 pages of Facebook account information and more than 40,000 pages of FBI reports.
They're also pushing the federal government to release additional information: the investigative reports regarding the FBI Hostage Rescue Team's apparent shooting at Robert "LaVoy" Finicum and the alleged tampering of evidence; the FBI's use of vast databases to obtain information on the defendants and any evidence that suggests the FBI and government officials sought "to grab and own social media'' to manipulate information about the refuge occupation.
Twenty-six defendants were indicted on conspiracy and other charges stemming from the 41-day takeover of the wildlife sanctuary in Harney County. Three of the 26 have accepted deals and pleaded guilty to the single conspiracy charge.
Attorney Marcus Mumford, appearing before the judge for the first time on behalf of Ammon Bundy, the leader of the occupation, said he hadn't received all the evidence from the prosecutors and said he didn't know if the government planned to share more. He said he and his partner, J. Morgan Philpot, are admittedly still "getting up to speed.'' They recently replaced Bundy's Eugene-based lawyers, Mike Arnold and Lissa Casey.
The judge told Mumford that prosecutors certified on May 18 that they had substantially completed their sharing of discovery evidence in the case with defense lawyers. She admonished Mumford repeatedly to listen to her and stop cutting her off and not waste her time with questions that should be resolved outside the courtroom.
"You need to meet with the prosecution team and bring yourself up to speed,'' Brown told him. When Mumford interjected, the judge told him, "Mr. Mumford, may I please finish.''
Mumford indicated that he might seek a delay in the trial for Bundy, saying "it's unfair to force a choice between a speedy trial and a fair one.'' He also told the judge that he expects to argue for Bundy's pretrial release both in the Oregon case and the one he faces in Nevada in the 2014 standoff with federal officers outside the ranch of his father, Cliven Bundy.
As Mumford continued to ask questions and suggest the court was holding his client's "feet to the fire,'' the judge told Mumford, "Please take a seat.'' She said she was committed to holding a Sept. 7 trial and he could ask for more time if he wanted. Anyone seeking a continuance for the trial date must submit a motion by June 30.
Mumford said the matter reminded him of lyrics from a 1980's pop song, "Time makes lovers feel like they have nothing but time.'' The song is Culture Club's Time (Clock of the Heart)'' and its lyrics actually are: "And time makes lovers feel, Like they've got something real, But you and me we know, We got nothing but time.''
Well, the judge replied, the court doesn't have "nothing but time."
In the next round of pretrial motions, defense lawyers indicated they'll argue to suppress the vast Facebook account information that prosecutors had subpoenaed on defendants.
They also plan to ask the court to force the government to share with defense lawyers its use of FBI databases, such as information networks called the Guardian and eGuardian that defense lawyers say the FBI used to find information on the defendants. There are references in evidence already shared that indicates the government relied on the databases for information that served as the basis for search warrants, defense lawyers Amy Baggio and Andrew Kohlmetz said in court.
"The database is not to be used to gather information on First Amendment-protected activity; however, references in discovery raise grave concerns that the government has done just that,'' Baggio wrote in a legal filing.
"These databases are incredibly powerful. The FBI has repeatedly searched these,'' Kohlmetz said. He said he wants the government to provide the search terms used by the FBI and what information investigators obtained.
Further, Baggio pressed for information on any warrantless surveillance done of the defendants at the refuge, including whether authorities placed any listening devices in the refuge buildings.
"The notion that there was some more exotic mechanism for obtaining information just isn't accurate,'' said Assistant U.S. Attorney Geoffrey Barrow.
The judge directed lawyers from both sides to try to resolve some of the disputes and figure out which ones may require oral argument before her.
Defense lawyer Rich Federico informed the court that he'll be making arguments Thursday before the 9th U.S. Circuit Court of Appeals on behalf of the defendants facing indictments in both Oregon and Nevada. The defense lawyers contend it's unconstitutional to prosecute two complex cases against the defendants in two jurisdictions at the same time.
Defendant Ryan Bundy, who is representing himself, quickly stood and asked the judge to have him transported to San Francisco or released so he could attend the appellate court arguments.
Brown told him it wasn't within her jurisdiction and that it was close to impossible to make such a request less than 24 hours before an out-of-state hearing.
Regardless, she suggested his standby counsel consult with fellow U.S. District Judge Robert E. Jones, who is handling detention matters in the case.
As Ryan Bundy's standby lawyer, Lisa Ludwig, excused herself to go to Jones' courtroom, Ryan Bundy remained, and the judge told him, "Mr. Bundy, you're doing fine on your own,'' drawing laughs and applause from supporters in the public gallery.
The hearing began once again with the defendants reciting the Lord's Prayer before the judge took the bench. And, again, it ended with defendant Kenneth Medenbach questioning the judge about her oath of office. He presented to the court copies of an oath of office and asked her if she was going to "initial it.''
"Mr. Mendenbach'' Brown said, "we're not going to play these games."
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian