The American system of justice may be the best in the world, but it’s not perfect. In the matter of seven defendants who—by force of arms—illegally occupied and caused damage to the Malheur National Wildlife Refuge in southeastern Oregon, justice was not served.
As an advocate for federal public lands, I’m disappointed by the verdict. I’m also surprised by the verdict, because in most cases juries do mete out justice.
Was this a case of jury nullification, where though the defendants were guilty as charged, the jury decided that the laws broken were immoral on their face or at least as applied to the defendants? Juries sometimes do that.
Was the all-white jury buffaloed by the all-white cowboy wannabes? We’ll likely never know.
Was this a case of manipulation by Juror 4, who raised the question to the judge about “bias” of Juror 11, which caused the judge to—at the request of the defendants and, astoundingly, with the acquiescence of the prosecutors—replace Juror 11, who later protested his innocence?
Was this a case of prosecutor incompetence and/or overreach? The U.S. attorney for Oregon charged the defendants with the crime of conspiracy to prevent government officials from doing their jobs. They were not charged with the crime of preventing government officials from doing their jobs. They were not charged with destruction of government property, theft of government property (save for the one bozo who freely admitted to taking a Fish and Wildlife Service vehicle into Burns, but even then the jury acquitted), desecration of archeological resources, et al. A slew of crimes they could have been charged with were mere misdemeanors—only conspiracy is a felony. And only those convicted of felonies (or misdemeanor domestic violence offences) are barred by federal law from owning guns.
Prosecutors often don’t also indict for the actual crimes that defendants allegedly conspired to commit because they don’t want to give the jury the opportunity to choose to convict on the lesser charges. In this case the U.S. attorney appears to have gambled and lost, and Lady Justice took a punch in the gut.
Perhaps the prosecutor simply failed to convince the jury of an actual conspiracy. That’s what Juror 4 contends. The U.S. attorney stands by his decision to indict as he did.
Beyond an incompetent prosecution is the double annoyance of a timid law enforcement response that allowed the armed occupation to continue for 41 days.
Rather than occupying, in the dead of winter, the cow-bombed grazing allotment on Bureau of Land Management federal public land that once belonged to the convicted arsonists Dwight Hammond and his son Steven—the cause célèbre for which the Malheur Maniacs ostensibly first descended upon Harney County—these lawbreakers chose to squat in a heated federal compound that had cell phone coverage.
Had federal law enforcement shut off the electricity and interrupted cell phone service, the armed occupiers would have eventually been frozen into surrender. The closest power line disconnect was within rifle range of the refuge HQ, though, so power would have had to be cut farther away, which would also have cut the power to a few nearby ranches, something the feds were unwilling to do. There are these things called generators that one can rent and move in to provide temporary power.
Were the feds buffaloed by the all-white cowboy wannabes? We’ll never know, but one cannot help comparing and contrasting cases where blacks who were not wearing cowboy hats—and mostly not toting guns—were not allowed 41 seconds of deference by law enforcement, let alone 41 days.
Perhaps the jury was swayed by the defense argument that it couldn't have been an armed protest because the feds let it go on for so long. We’ll never know.
We do know that the armed occupiers and their ilk have been emboldened by this miscarriage of justice. Nonetheless, I fully defend their constitutional right to be dumb-asses.
In our justice system, prosecutors don’t get do-overs due to the constitutional protection (and a good one at that) against double jeopardy. Although the State of Oregon could bring criminal charges for violations of state law, even though it is a national wildlife refuge, I’m not holding my breath.
Nor am I counting on the next federal trial in Nevada that includes some of the Oregon defendants and arises out of another botched attempt by the feds to do their job and round up Cliven Bundy’s trespass cattle. Maybe the prosecutors and/or the jury won’t blow it, but maybe they will.
Despite the acting out of a few cowboy wannabes, most Americans—be they Democrat or Republican, liberal or conservative, urban or rural, coastal or heartland, old or young— support federal public lands staying federal and public for the benefit of this and future generations.
It’s a matter of settled constitutional law that federal public lands are constitutional. The states never owned the federal public lands, have no right to them, and when accepting the offer of statehood within the United States of America forever disclaimed any right or interest in federal public lands within their borders.
The Bundys and their ilk are but a small carbuncle on the butt of our great nation—annoying but treatable. If treated properly, this puny band of boils will go away.
After the Malheur miscarriage of justice, I continued to do what I was doing before the verdict, which was and is—and always will be—to elevate the conservation status of federal public lands. I continue to advocate for more wilderness areas, wild and scenic rivers, national monuments (both terrestrial and marine), national wildlife refuges, national recreation areas, national parks, a national desert and grassland system, a U.S. Desert and Grassland Service, keeping fossil fuels in the ground, and more.
While sometimes life is not fair, one must nonetheless move on and stay the course.