Reaction to the acquittal of all seven defendants in the high-profile Malheur trial ranged from relief and glee to disappointment and outrage. But along with the emotional responses triggered by the not-guilty verdict came questions about the case itself.
For insight into the trial, the Source Weekly spoke with Tiffany Harris, court-appointed counsel for defendant Shawna Cox. The exchanges have been edited for length and clarity.
Source Weekly: The defendants were charged with conspiracy. What does that mean?
Tiffany Harris: The defendants were charged with Conspiracy to Impede Officers of the United States. Proving that charge meant the prosecution had to convince the jury that the defendants entered into an agreement to prevent U.S. Fish & Wildlife Service and BLM employees from carrying out their official work through force, intimidation or threats. The crime is the alleged agreement itself. There was no evidence presented at trial that any federal employee was ever injured or threatened. The government didn't have to prove that those acts ever occurred, only that the defendants conspired to commit those acts.
This particular law isn't charged very often in modern times, and in my opinion, it was an odd choice for this case. It was not a good fit. The prosecution could have charged criminal trespass, a misdemeanor, and the evidence was readily available to make that case to a jury. But instead the government chose a more esoteric and severe charge.
SW: It sounds like there's a difference between the common and legal definition of conspiracy.
TH: It's a question of intent. The lynchpin of the case was our clients' state of mind and what they agreed to do. If you believed they went to the refuge with the intent to prevent federal employees from doing their jobs through threat, force or intimidation, then you'd find them guilty.
But the people who testified made a good case that they went to the refuge to protest the imprisonment of the Hammonds (Steven and Dwight Hammond, Harney county ranchers who returned to prison in January to serve extended prison terms) and the larger issue of government overreach in the ways federal lands are managed. They weren't thinking about the employees. In their press conferences and other media conversations, they were talking about the plight of the Hammonds and finding more equitable ways to deal with federal land mandates.
What I believe, and the jury seems to have agreed with, is that the defendants' actions had nothing to do with preventing fish biologists or BLM managers from reporting to work. The defendants in this case were trying to make a larger statement.
SW: But the effect of their actions...
TH: The effect of their protest may have been to prevent federal employees from reporting to work. I think the prosecution conflated effect versus intent, but the jury rigorously followed the jury instructions in defining conspiracy and applying the facts presented at trial to legal standards.
SW: So the case hinged on intent, regardless of the effects of their actions?
TH: Right, what happened was that U.S. Fish & Wildlife instructed their employees to stay home instead of returning to the refuge after their New Year's vacations. The effect of that was that nobody showed up at work.
SW: But presumably they didn't show up out of fear because the refuge was controlled by armed occupiers.
TH: True, but the law requires more than identifying the effect. At trial, Ammon Bundy's attorney used the analogy of buying the last can of chili at a grocery store. You don't intend to inconvenience the next customer who enters the store who may be starving and can't eat anything but chili. Your intent and the outcome are two separate issues.
SW: If employees had shown up, which would have been frightening given the circumstances, there might have been a different outcome?
TH: At least two witnesses testified that a contractor or employee did show up—one of them said that person performed regular maintenance at the refuge and then left without incident. If the defendants had a vendetta against workaday employees at the refuge, the evidence of a conspiracy would have been more compelling. And yes—if an employee had shown up and been threatened or harmed, that may have led to better evidence of the charged conspiracy or a different or even more serious charge. But that's not what happened here.
SW: Could the prosecution have charged the defendants with conspiracy as well as lesser charges, or was it all-or-nothing?
TH: They can indeed charge little crimes along with big crimes in the same indictment. But then they have to be prepared for a jury to find the defendants guilty of the little stuff instead of the big stuff—you could call that a compromise verdict. In this case, they left the jury with an all-or-nothing decision and the jury—after applying the facts to the law—decided on nothing. That was a conscious roll of the dice by the government.
SW: Why was the charge of having firearms at a federal facility dropped, as well as the charge that one defendant stole federal property when he drove a truck off the refuge?
TH: If the jury found the defendants not guilty of conspiracy then they had to find them not guilty of the weapons charges because the indictment accused them of using guns to further the conspiracy. Because the jury found the evidence insufficient to support the conspiracy charge, they had to make the same finding with respect to the gun charge.
The stolen truck was a separate charge, and all I can assume is that the jury considered Mr. Medenbach's intent. His entire interaction with the state trooper was recorded, and he was completely transparent and compliant and honest. I can only assume that the jury expected some evidence that he planned to convert the truck to his own use, but that wasn't presented.
SW: Can you talk about the role guns played this case, from how the agencies involved reacted to public discourse and media coverage?
TH: I think the government assumed that it could prove the case largely on the presence of the guns alone. Every single spent casing, every single round of ammo, every single gun recovered was displayed at trial, as if the mere existence of guns would prove intent of threat, intimidation or force.
A few things made that more complicated than the government anticipated. One was that we had a jury drawn from not just Portland but all across Oregon, including many people who grew up around guns and in rural areas. They understood that guns in and of themselves don't prove intent to menace or threaten.
To a typical Portlander, including me, someone displaying firearms downtown would be odd and scary. But in other parts of the state, that's not the case. Many witnesses from Burns and Harney County testified to that.
SW: But the occupiers weren't just carrying guns. They had armed guards, right?
TH: The coverage in the media depicted the occupation as a militarized, weaponized takeover. That was not the reality. Members of the public, media and local elected officials streamed in and out of the refuge. None of the so-called armed guards were on trial. The people on trial included a 68-year old unarmed man, a 60-year-old unarmed woman and others who made a strong case that they came to the refuge for nonviolent reasons related to a well-publicized protest.
SW: I've read that the prosecution struggled to prove conspiracy in part because they had undercover informants planted at the refuge.
TH: In my opinion, the prosecution should have told the jury upfront that they relied on numerous informants, and explained why they did that, and identified the specific role that each informant played. Admit it from the start. Instead, they didn't mention it when they were making their case.
Then we found out from our own witnesses that there was a weird guy, who seemed very bellicose and militarized, who came to the refuge in the waning days of the occupation and was a self-styled weapons expert. We thought he might have been an informant, so we subpoenaed him in the Las Vegas area, and found out we were right. He had given target shooting and weapons instruction to others at the refuge, and the prosecution had made the recovery of lots of ammo from the target shooting area a cornerstone of their factual presentation.
SW: That had to be a damning blow for the prosecution.
TH: In our closing arguments, we pointed out that evidence created by an informant was not evidence of a conspiracy.
SW: What else do you think most swayed the jury?
TH: People testified for the defense to say it wasn't a threatening environment at the refuge; it was a welcoming environment. Nobody was talking about how to keep fish biologists from coming to work. They were talking about how can we make things better in your community.
This is a region of Oregon where approximately 75 percent of the land is managed by federal agencies, and that's where the money and power reside. What they were talking about was taking a look at the power imbalance in the community. These were compelling witnesses who wore their hearts on their sleeves—people from Burns, silversmiths, clerks, ranchers and farmers. They didn't think this was a criminal conspiracy to use force, intimidation and threats against federal employees.
SW: Do you agree with some who have suggested a connection between the verdict and a "simmering anger" in the electorate?
TH: I don't think the jury's application of the law to the facts in this case is part of any simmering anger against the federal government. I think they were surprised by the evidence presented at trial because it differed so much from the information the public got from the media. The jury members are the only ones who sat through the trial for eight hours a day for 27 or so days. They saw that some of the key evidence in the case was closely tied to informants, and they had a chance to hear from our clients and regular people in Burns who saw the occupation in a different way than others may have in Portland and other areas.
SW: One common reaction to the verdict is that it opens the door to more armed takeovers of federal property and potential violence. How do you respond to a statement like this from Kieran Suckling, the executive director of the Center for Biological Diversity, who told the LA Times, "People are going to get killed because of this verdict because this jury has just given militias the green light to go after federal facilities with rifles"?
TH: The job of the jury is not to craft policy or make a statement of any kind. The jury received pages and pages of instruction about how to apply the law to the facts presented in this trial, and they did that.
They were also instructed not to decide the case on passion, fear or evidence not presented at the trial. To suggest that they were supposed to have reached their verdict based on prognostications about future conduct by other parties, or their own views about environmental policy, is a violation of our basic separation of powers and democratic principles. Their job was to decide the case based on the facts presented at trial. Period.
The jury in this case took weeks and weeks out of their jobs and family lives. Many had to stay in hotels in Portland during the week, and it was an enormous sacrifice they made. To criticize them for failing to assume the role of policymakers is disrespectful and ignorant of their role.
It also makes the case bigger than it was and that's harmful to all sides. And it suggests that an escalation of violence and lawlessness is inevitable, which I don't think is true. I also think it oversimplifies the very complicated factors that contributed to the problems that gave rise to the occupation.
SW: You're a self-described "lefty liberal" from Portland, but it sounds like you agree with the defendants on some issues.
TH: I doubt we vote the same way or conceive of public lands in the same way, but one point I do agree with is that over the past few decades there has been a change in the way that the BLM and other agencies carry out their work, and it has exacted a heavy price in community relations, in resources and in goodwill. So to say, well, gee, the jury in the Bundy case is the sole reason why future threats or problems might arise is superficial.
SW: Can you say more about the changes at the BLM and other agencies?
TH: For example, the BLM, the Forest Service and the USDA are not law-enforcement agencies. But more and more, they employ what they call "special agents" who look and act a lot more like police and armed SWAT team members than land use and resource managers. It's a different thing for people in rural communities to interface with those agencies now.
I would hope that the verdict might actually encourage some contemplation about what this militarization of our federal land agencies has wrought and the changing nature of relationships with local partners and populations. It makes a difference whether people are treated like criminals or like neighbors.
SW: Some are comparing the Malheur verdict to the arrests of protesters at the Standing Rock Indian Reservation, as well as police treatment of African-Americans. Do you think race played a role in this case?
TH: I completely understand the questions being asked, and all I can say as a lawyer is that the judicial process requires all of us to be our best selves.
In the justice system, everybody has a role to be sure the system is fair and justice is served. That includes the prosecutors making sure they're not criminalizing activities protected by the First Amendment and bringing charges proportional to any misconduct, rather than using more severe charges as a hammer. It includes a judge who will make evidentiary rulings that are fair and impartial. And then it will be up to jurors to apply the law and hold the government to its burden of proof.
SW: In sum, do you see this as a statement case?
TH: I'm not a spokesperson for any group, but of course I don't see the jury's verdict as any sort of statement, other than the obvious one: that the government failed to satisfy its burden of proof. I certainly do not see the jury's verdict as a green light for future violence by anyone, including federal agencies or police. To the extent the defendants represented a grassroots movement coalescing around a message, the message is that we should all be included in the discussion of how we allocate resources and manage federal lands, and we should create more opportunities for people living in rural areas.