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Refuge Occupation Trial May Seem Simple, But Complications Abound

A quick Internet search easily turns up evidence of the Malheur National Wildlife Refuge occupiers doing things that could pose a problem for them in federal court.

In one video clip, for example, David Fry filmed himself getting into a refuge pickup truck.

“It’s a U.S. government vehicle, and I think I’m going to take it on a little joy ride," he says in the clip. "Now you got another charge on me, FBI: I am driving your vehicle!”

This week, Fry, Ammon Bundy and other defendants arrested in connection with the 41-day refuge occupation are scheduled to again appear in a federal courtroom in Portland. Judge Anna Brown has said she will set a trial date.

The defendants are facing a mountain of evidence, much of it available on social media. But the case is anything but an easy or simple win for prosecutors, experts say.

“The legal challenges aren’t very great in this case because I think it is very clear that the defendants broke the law," said Jenny Durkan, who served as the U.S. attorney for the Western District of Washington from 2009 until 2014.

While it may not be difficult to point to laws that may have been broken, Durkan said prosecutors are still tasked with proving their case for each defendant beyond a reasonable doubt.

“The greater challenge is to avoid this becoming a circus atmosphere and yet another soapbox for the defendants to espouse their political beliefs," she said.

It's a complex case for a variety of reasons, including the sheer number of defendants, Durkan said. At last count there were 26.

“The whole thing is a storytelling," she said. " want the jury to understand that this is not a case about lawful political speech. This is a case about people who violated the law.”

While it’s on the judge to keep the case on track and manageable for a jury, Durkan said prosecutors will almost certainly need to break the myriad counts into multiple trials with fewer defendants.

“The prosecutors are going to want to keep this as focused as possible on the legal proof," Durkan said. "And the defendants are going to want to keep it as focused as possible on their political values."

In other words, defense attorneys could argue that Ammon Bundy and his co-defendants were engaged in legally protected free speech.

“Our purpose, as we have shown, is to restore and defend the Constitution that each person in this country could be protected by it and that prosperity can continue," Bundy said at a press conference on January 4th, near the start of the occupation.

“If I’m a defense attorney, I’m going to be trying to figure out how to say as much of that or all of that as possible is protected by the First Amendment," said Steve Wax, who served as Oregon’s federal public defender for 30 years and now is the legal director at the Oregon Innocence Project.

Wax said less prominent figures in the occupation may not need to make a free speech defense. Rather, they could argue they weren’t part of the conspiracy, as the government claims.

“Other defendants may have a defense that ‘I was merely there. I wasn’t the leader. I wasn’t an organizer," he said. "Other defendants may consider cooperating with the government.”

Defendants are still innocent until proven guilty. Wax said that even in a case like this, where it appears clear that crimes were committed in full public view, prosecutors still carry the burden to prove each specific charge. And defense attorneys can negotiate with prosecutors.

In most state and federal cases, Wax said, "The primary focus of the defense attorney’s work ends up as mitigation — attempting to reduce the sentence that your client is facing."

Wax also notes that roughly 98 percent of federal cases end in guilty pleas. That means that, when everything is said and done, only a few of the Bundys’ co-defendants are likely to go to trial.

<p>Ammon Bundy, one of the leaders of the armed occupation in Harney County, Oregon, talks tactics with occupiers at Malheur National Wildlife Refuge.</p>

Kristian Foden-Vencil

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Ammon Bundy, one of the leaders of the armed occupation in Harney County, Oregon, talks tactics with occupiers at Malheur National Wildlife Refuge.

<p>More than 300 people gathered in Burns to march through town, across the packed snow, in protest of the Hammond&rsquo;s five-year sentence.</p>

Amelia Templeton

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More than 300 people gathered in Burns to march through town, across the packed snow, in protest of the Hammond’s five-year sentence on Jan. 2.

<p>Robert "LaVoy" Finicum was the occupation's de facto spokesperson. After he was killed Jan. 26, Finicum became an even more critical figure in the splintered movement.</p>

Amelia Templeton

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Robert "LaVoy" Finicum was the occupation's de facto spokesperson. After he was killed Jan. 26, Finicum became an even more critical figure in the splintered movement.

<p>Ryan Bundy told OPB that he and the other armed men occupying the Malheur National Wildlife Refuge headquarters will leave if Harney County residents want them to. The self-proclaimed militiamen have been occupying the buildings since Saturday, Jan. 2.</p>

Amanda Peacher

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Ryan Bundy told OPB that he and the other armed men occupying the Malheur National Wildlife Refuge headquarters will leave if Harney County residents want them to. The self-proclaimed militiamen took over the buildings since Saturday, Jan. 2.

<p>One of the protesters, who gave the name "Captain Moroni," guards the entrance to the refuge Sunday. "Moroni" said he was disappointed that more protesters did not&nbsp;arrive after a widespread call on social media.</p>

Amanda Peacher

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One of the protesters, Dylan Anderson, who gave the name "Captain Moroni," guards the entrance to the refuge. "Moroni" said he was disappointed that more protesters did not arrive after a widespread call on social media.

<p>A new militant from Arkansas guards the entrance to the occupied refuge on Jan. 14.</p>

Amanda Peacher

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A new militant from Arkansas guards the entrance to the occupied refuge on Jan. 14.

<p>Kristi Jernigan, Christian missionary from Tennessee, stirs a pot of chili. She stayed at the occupied refuge for about a week before returning home. &ldquo;I am here strictly to bring people to salvation if that is God&rsquo;s will,&rdquo; she said.</p>

Amanda Peacher

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Kristi Jernigan, Christian missionary from Tennessee, stirs a pot of chili. She stayed at the occupied refuge for about a week before returning home. “I am here strictly to bring people to salvation if that is God’s will,” she said.

<p>Those who want the armed militants to leave Eastern Oregon's Malheur National Wildlife Refuge near Burns, Oregon, keep ripping down a sign the occupiers keeps putting back up.</p>

Kris Millgate

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Those who want the armed militants to leave Eastern Oregon's Malheur National Wildlife Refuge near Burns, Oregon, keep ripping down a sign the occupiers keeps putting back up.

<p>An armed man with a group called the Pacific Patriots Network. The network arrived in Harney County Saturday, Jan. 9, claiming to secure the scene of the occupation at the Malheur National Wildlife Refuge.</p>

Dave Blanchard

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An armed man with a group called the Pacific Patriots Network. The network arrived in Harney County Saturday, Jan. 9, claiming to secure the scene of the occupation at the Malheur National Wildlife Refuge.

<p>Brandon Curtiss, president of 3% of Idaho, at the Harney County Committee of Safety meeting Friday in Burns.</p>

Dave Blanchard

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Brandon Curtiss, president of 3% of Idaho, at the Harney County Committee of Safety meeting Friday, Jan. 8, in Burns.

<p>Ammon Bundy removes a fence separating the Malheur National Wildlife Refuge from ranching land.</p>

Jes Burns

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Ammon Bundy removes a fence separating the Malheur National Wildlife Refuge from ranching land.

<p>The U.S. Fish and Wildlife Service confirmed that this road within the refuge complex is new construction.</p>

Amanda Peacher

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The U.S. Fish and Wildlife Service confirmed that this road within the refuge complex is new construction.

<p>Outdoor enthusiasts gather at The Narrows on the Malheur National Wildlife Refuge to protest its occupation by armed militants.</p>

Kristian Foden-Vencil

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Outdoor enthusiasts gather at The Narrows on the Malheur National Wildlife Refuge to protest its occupation by armed militants in January.

<p>A meeting in Burns grew tense on Tuesday, Jan. 19, as community members discussed the occupation of the Malheur National Wildlife Refuge.</p>

Amanda Peacher

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A meeting in Burns grew tense on Tuesday, Jan. 19, as community members discussed the occupation of the Malheur National Wildlife Refuge.

<p>Harney County Judge Steve Grasty at a community meeting in Burns on Tuesday, Jan. 19.</p>

Amanda Peacher

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Harney County Judge Steve Grasty at a community meeting in Burns on Tuesday, Jan. 19.

<p>An FBI guard guides a truck out of the compound near the Burns Airport.</p>

John Sepulvado

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An FBI guard guides a truck out of the compound near the Burns Airport.

<p>FBI officials say any vehicles approaching the checkpoints outside the refuge will be stopped and searched, and all occupants of the vehicles must present identification.</p>

Bradley W. Parks

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FBI officials said any vehicles approaching the checkpoints outside the refuge would be stopped and searched, and all occupants of the vehicles were to present identification.

20160128_state police_burns_BP_IMG_0634

Bradley W. Parks

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State police at a roadblock near the Malheur National Wildlife Refuge.

<p>State troopers monitoring the situation.</p>

Bradley W. Parks

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State troopers monitoring a roadblock near the Malheur National Wildlife Refuge.

<p>Burns Paiute Tribal Chair Charlotte Roderique watches as the FBI releases video of the traffic stop, which led to the arrest of militant leaders and death of LaVoy Finicum.</p>

Bradley W. Parks

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Burns Paiute Tribal Chair Charlotte Roderique watches as the FBI releases video of the traffic stop, which led to the arrest of militant leaders and death of LaVoy Finicum.

<p>FBI footage showing the joint FBI and Oregon State Police traffic stop and OSP officer-involved shooting of Robert &ldquo;LaVoy&rdquo; Finicum.</p>
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FBI footage showing the joint FBI and Oregon State Police traffic stop and OSP officer-involved shooting of Robert “LaVoy” Finicum.

<p>Mourners wore ribbons, and some pinned squares cut from a blue tarp to their coats, a reference to a nickname some gave Finicum during the occupation of the Malheur National Wildlife Refuge.</p>

Amelia Templeton

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Mourners wore ribbons, and some pinned squares cut from a blue tarp to their coats, a reference to a nickname some gave Finicum during the occupation of the Malheur National Wildlife Refuge.

<p>David Fry, a 27-year-old from Ohio, is one of the last remaining occupiers at the Malheur National Wildlife Refuge.</p>

Amanda Peacher

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David Fry, a 27-year-old from Ohio, was one of the last remaining occupiers at the Malheur National Wildlife Refuge. He surrendered Feb. 11.

<p>A Washington County Sheriff's vehicle blocks the road leading to the Malheur National Wildlife Refuge. The 41-day armed occupation of the refuge ended Thursday, Feb. 11.</p>

Dave Blanchard

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A Washington County Sheriff's vehicle blocks the road leading to the Malheur National Wildlife Refuge. The 41-day armed occupation of the refuge ended Thursday, Feb. 11.

<p>Law enforcement vehicles leave the Burns airport. The armed occupation of the Malheur National Wildlife Refuge ended Thursday, Feb. 11.</p>

Dave Blanchard

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Law enforcement vehicles leave the Burns airport. The armed occupation of the Malheur National Wildlife Refuge ended Thursday, Feb. 11.

<p>A law enforcement helicopter takes off from the Burns airport. The armed occupation of the Malheur National Wildlife Refuge ended Thursday, Feb. 11.</p>

Dave Blanchard

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A law enforcement helicopter takes off from the Burns airport. The armed occupation of the Malheur National Wildlife Refuge ended Thursday, Feb. 11.

<p>Harney County Sheriff David Ward expressed his thankfulness for the patience and persistence of law enforcement and the community of Burns. The occupation of the Malheur National Wildlife Refuge ended Thursday, Feb. 11.</p>

Dave Blanchard

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Harney County Sheriff David Ward expressed his thankfulness for the patience and persistence of law enforcement and the community of Burns. The occupation of the Malheur National Wildlife Refuge ended Thursday, Feb. 11.

Copyright 2016 Oregon Public Broadcasting

Conrad Wilson is a reporter and producer covering criminal justice and legal affairs for OPB.