The scene outside the federal courthouse in downtown Portland in late October was jubilant as supporters of occupation leaders Ammon Bundy and six others celebrated their surprising acquittals.
“Ammon Bundy, not guilty!” the crowd cheered in unison. “Ryan Bundy, not guilty!”
The defendants had been found not guilty of a felony: conspiring to prevent federal employees who work at the Malheur National Wildlife Refuge from doing their jobs, among other charges.
Now a new trial is set to begin. Jury selection in the second case stemming from last year’s armed occupation starts Tuesday, with a whole new group of defendants.
Last fall’s verdict followed the 41-day long standoff in Eastern Oregon’s high desert. Supporters saw the acquittals as a victory for those in rural America who believe the government has overreached when it comes to managing millions of acres of public lands across the American West.
“Except there are a good number of folks in rural America who are of the mind that you don’t take arms and take over a federal facility to prove your point,” said Billy Williams, the U.S. attorney for Oregon, who spoke about the government’s case just after the first trial.
“It was disappointing, bitterly so,” Williams said of the verdict. “We obviously believe in our case, worked really hard to present the evidence.”
That belief in their case may be part of the reason the government decided to move forward with a second trial for the remaining defendants linked to the occupation.
The four defendants in this next trial are largely unknown compared to the leaders. They are Duane Ehmer, Jason Patrick, Jake Ryan and Darryl Thorn. But like Ammon Bundy, Ryan Bundy and other more renowned occupiers, they’ve been charged with felonies, the same charges jurors decided the government didn’t prove in the first trial.
“The legal strategy is simple, and we’ve said it from the start: We simply want to get a jury that’s willing to follow the law,” said Jesse Merrithew, an attorney for defendant Jake Ryan.
“This trial is going to be about whether the government should be allowed to suppress dissent in the heavy-handed manner which it’s chosen to do with these individuals,” he said. “It’s a troubling precedent if we allow it to stand.”
Unlike the first trial, the government has added misdemeanor charges, including trespassing and destruction of property, for the second group of defendants. Those will be heard and decided by a judge, not a jury.
The defense has the benefit of having watched the first trial; defense lawyers already know what many of the government’s witnesses will say.
Martin Estrada, a former federal prosecutor turned defense attorney, said he believes the government has the upper hand despite the defense’s possible advantage of knowing what’s coming from prosecutors.
“In the first trial, the defense really hit a grand slam,” Estrada said. “It’s hard to hit a grand slam twice.”
He said one of the biggest challenges both sides face is trying to seat an unbiased jury. They will be looking for jurors who have open minds, but also ones willing to be honest about their prejudices, he said.
That could be especially challenging given the level of anger generated among some in rural Oregon toward the federal government. Others are equally angry about acquittals during the last trial.
“There’s some cases where those jurors want to be at trial, want to be deciding and want to have an influence in the outcome, and that’s certainly something both sides want to be sure the ferret out in voi dire,” Estrada said.
Jury selection is expected to wrap up by Thursday. The second trial could last about four weeks.