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how the gov blew its case… Oregon Malheur Refuge occupiers acquitted on all charges.


Oregon Malheur Refuge occupiers acquitted on all charges. (week.com) submitted 20 hours ago by lawmedy

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[–]DickWhiskey 211 points 19 hours ago*

Okay, we don’t know why the jury acquitted them, let’s all recognize that up front. Guessing at why the jury did what they did would be rank speculation. It could be that the government screwed up the case or evidence, or that they jury didn’t understand the charges, or that a juror or two was biased, or probably a hundred other reasons…

That being said, let me engage in some rank speculation. I remember reading a week ago that the government had at least 15 “confidential sources” feeding them information from the refuge. The government refused to identify most of them. The defense made the informants a significant part of their strategy:

Ammon Bundy’s lawyer Marcus Mumford is urging the court to compel prosecutors to identify their informants before the defense rests its case in the federal conspiracy trial against his client and six co-defendants.

“We’re being prosecuted based on the collective actions of others,” Mumford argued.

The court refused to compel the government to identify them; it only said that the prosecutors would have to come forward if any informant testified in a way that they knew to be false. I thought it was a very inequitable ruling by the court. The idea that the government can withhold a number of material witnesses from the defense, while the defense was asserting that they were involved in the very crimes charged against defendants, is very distasteful.

The defense ended up identifying three of the informants and getting one on the stand, even after prosecutors refused to confirm that they were actually informants. The one who got on the stand testified that he had spent 20 years in the Swiss military and was trained in “psyops”:

Killman, defense lawyer Tiffany Harris pointed out in a written legal brief, was a participant in the firearms and military-style maneuvers training during the occupation and helped train one of the defendants, Jeff Banta, in hand-to-hand combat techniques.

He spoke with a French or South African accent to people at the refuge and his Facebook profile included a majority of friends who occupied the refuge, according to defense lawyers. Defense investigators learned Minoggio was born in Switzerland and had served in the Swiss army for 20 years. He was trained in “psy-ops,” weaponry and martial arts, according to Harris’ legal brief.

“We are dealing here with a situation of a confidential informant who is participating in the commission of the alleged offense,” defense lawyer Marcus Mumford said in court.

Earlier Monday, prosecutors had refused to confirm if the man who went by “Mr. Killman” was working for the government.

Defense lawyers, he said, don’t know what these confidential sources “did or how they contributed” to the alleged conspiracy during the 41-day armed takeover of the federal bird sanctuary in eastern Oregon.

He further testified that he had conducted firearms training and essentially encouraged the occupiers throughout the ordeal. At the same time, the defense charged that it was one of these informants who actually brought the weapons to the refuge:

Defense lawyer Matthew Schindler, who represents defendant Kenneth Medenbach, argued that the defense team had the right to know who the “mystery people” were who brought the 22 long guns and 12 handguns to the refuge that prosecutors had FBI agents parade before jurors. Schindler pointed out that prosecutors and the FBI didn’t identify who brought most the guns.

Remember, the occupiers were charged with possessing a firearm in a government facility and conspiring to impede F&WS and BLM officials with intimidation. The defense had a reasonable case that the government agents were involved with the crimes, if not instigating the crimes themselves. And it refused to either tell the jury the whole truth or rebut those claims.

I can’t think of a reason why the jury would reject the factual allegations of the government. After all, they literally broadcasted most of the crimes contemporaneously. The only explanation I can come up with (admittedly, with about half an hour of thought) is that the jury nullified because it didn’t find the government actions fair or credible. (EDIT: I say “nullified” here not out of any secret knowledge of juries, but because I don’t think a reasonable person could conclude that the predicate facts were not met. However, it’s also possible that the government’s involvement caused the jury to believe that the predicate facts were invalidated — for example, that the government “consented” to the occupiers possessing firearms by providing them, or that the informants encouraging the scheme deprived the defendants of conspiratorial intent. That may or may not be nullification, depending on how you define it. I don’t want to give the impression that the only conclusion is that the refused to apply the law.)

That may not be fair — I certainly don’t think it would happen if the defendants were minorities (EDIT: considering the number of minorities that have been convicted for inchoate conspiracies arising out of government-concocted terrorism schemes, without any actual weapons) — but that’s a risk that the government takes when it asks the jury to trust it out of one side of its face, then refuses to give the jury important information with the other.