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Legal Teams Begin Putting Together Jury For Malheur 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

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

Some people claimed to believe in “guilty until proven innocent” with an unshakeable bias toward law enforcement. Others wrote of their disdain for the Bureau of Land Management and the U.S. Fish and Wildlife Service.

Still, others said they had a two-week vacation scheduled at the end of September, didn’t speak English well enough to serve on a jury (despite having served on one in 2011) or said that their children are leaving for college.

Those are just some of the challenges defense attorneys and prosecutors grappled with Monday as they took the first step toward piecing together a jury for those accused of conspiring to occupy the Malheur National Wildlife Refuge in January.

The hearing was a view into the public’s perception of the occupation and the upcoming trial. It also underscored the challenge of seating a jury willing to keep an open mind after one of the most publicized events of early 2016.

Earlier this summer, federal court officials sent 1,500 summonses out to prospective jurors throughout Oregon. The courts followed up with a detailed questionnaire. It’s those responses that were the subject of Monday’s pretrial conference, which U.S. District Court Judge Anna Brown read aloud in court.

“I only feel contempt for such individuals who arm themselves,” wrote one potential juror.

“U.S. Fish and Wildlife has one political agenda and that is to inflict as much hardship on ranchers,” stated another potential juror.

“They are no longer land managers, but political pawns,” the same person wrote of the U.S. Bureau of Land Management.

The more than 200 potential jurors who remain in the pool will be selected at random, 30 at a time, to appear for jury selection starting Sept. 7. Twenty will be selected: 12 trial jurors and eight alternates.

"We're going to have plenty of jurors," Brown said after hours of scrutinizing the questionnaires.

Brown dismissed dozens of jurors Monday over challenges raised by defense attorneys and the government. Others, Brown said, would need to provide more information about their views before deciding whether or not to excuse them from service.

The identities of the jurors are kept secret, but defense attorneys, the court and prosecutors know the people who submitted questionnaires.

“I do not believe any individual has any right to seize public lands,” one potential juror wrote in the questionnaire.

“Although it is my civic duty, I do not like to sit in judge of another,” stated another.

Defense attorneys for the group of eight going to trial in September worked as a team. At times, Assistant U.S. attorneys Ethan Knight and Geoff Barrow and defense attorneys were in agreement over the dismissal of a potential juror.

Prosecutors were inclined to challenge potential jurors who spoke out against federal agencies or the role the federal government plays in managing public lands.

Defense teams were quick to push for the dismissal of individuals who opposed the Second Amendment or wanted to see more laws regulating guns.

But Brown made clear that potential jurors were deciding a case about a conspiracy and nothing more.

“We’re not litigating should the Second Amendment be abolished. We’re not litigating should federal land management be changed," Brown said. "We’re not solving the underlying policies in this trial.”

Also Monday, defense attorneys asked Brown to revisit whether Facebook evidence will be allowed into the trial. She has previously ruled it will be allowed.

But earlier this month, the U.S. Attorney’s Office said it shared raw Facebook data from 11 of the defendant’s accounts with all the defense teams as part of discovery.

An evidentiary hearing will take place Tuesday to determine whether the government violated its Facebook search warrant by broadly sharing the data. Prosecutors argue the FBI did not violate its warrant and a miscommunication with the U.S. Attorney’s Office led to the error in discovery.

Defense attorneys Monday also asked Brown to limit other evidence, including testimony from seven refuge employees as well as testimony from Harney County Judge Steve Grasty and county Sheriff David Ward.

Brown said prosecutors will need to show during hearings Tuesday how those people’s testimony would help the government prove that defendants conspired to impede federal employees from doing their jobs.

In the upcoming trial, defense attorneys also want to limit references to the 2014 armed standoff in Bunkerville, Nevada led by Cliven Bundy. Some of the defendants in the Oregon case have also been charged in Nevada.

Prosecutors said Monday they wanted to have a BLM employees who was at the Bunkerville standoff testify next month. They argued it's necessary to provide context for jurors because defendants Ammon Bundy, Neil Wampler and Pete Santilli reference the event in statements made during the occupation of the Malheur Refuge.

Brown agreed that context would be important for the jury, but said she wasn't sure having a BLM employee testify was the best way to go about doing that.

Copyright 2016 Oregon Public Broadcasting

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