A hired consultant will sit with federal prosecutors when jury selection starts Tuesday in the second trial of Malheur National Wildlife Refuge occupiers.
The highly unusual presence of the consultant is a vestige of what happened in the first trial: the dismissal of a juror after questions about his impartiality arose and then across-the-board acquittals of the armed takeover's key figures just several hours later.
Current and former federal prosecutors and defense lawyers who have worked in federal court in Oregon for nearly 30 years can't recall a single criminal case when a consultant has helped prosecutors pick jurors.
"Obviously they had that one experience that was very bad for them, and they've wised up and said they could use some help,'' said Jeffrey T. Frederick, director of jury research services for the National Legal Research Group.
Assistant U.S. Attorney Ethan Knight alerted the judge last week of the government's decision to seek out the advice of a consultant, but didn't say who it will be.
It's one of several notable differences in what is expected to be a more low-key trial compared to the long and contentious trial of occupation leader Ammon Bundy and some of his top followers.
Four men face trial this time - Jason Patrick, 43, of Bonaire, Georgia, identified by prosecutors as an organizer of the 41-day seizure over land rights - and three more minor players - Duane Ehmer, 46, of Irrigon, Darryl Thorn, 32, of Marysville, Washington, and Jake Ryan, 28, of Plains, Montana.
None of the defendants are in custody, so that means fewer U.S. marshals in the courtroom.
The defense attorneys also are all from Oregon this time and may be less likely to risk offending the judge like Ammon Bundy's lawyer, Marcus Mumford of Utah, did in the first trial by constantly challenging her rulings and drawing a threat of contempt of court.
Only one of the four men, Patrick, is representing himself. That's a significant change from the first trial when three of the seven defendants represented themselves and often questioned witnesses themselves.
Even U.S. District Judge Anna J. Brown expects less fireworks. She denied a prosecution request to keep the defendants in line by ordering them not to make improper arguments, pose irrelevant questions or present improper evidence to the jury.
"There is not any indication that such tactics will recur," she said.
But the proof will come as the trial begins with selection of 12 jurors and four alternates.
The process is expected to take at least two days from a pool of about 100 prospective jurors from across the state who will answer questions submitted by attorneys on both sides, though the judge will do the actual questioning.
The jury will decide felony charges against the four men - all face a conspiracy count of impeding federal employees from carrying out their work at the refuge through intimidation, threats or force. A combination of other defendants face other felony counts, including depredation of government property.
The judge, not the jury, will decide misdemeanor charges, including trespassing and tampering with government vehicles and equipment.
Defense lawyers also hired an out-of-state jury consultant to help them draft questions for the jury selection, but the defense consultant isn't expected to be in court.
The government's consultant likely will already have helped research the backgrounds of the prospective jurors, examining their online posts and likes on Facebook, for example. The consultant will take notes on their answers and carefully watch the body language, demeanor and tone of each potential juror.
It's rare to see a jury consultant on the prosecution side, legal experts say, pointing to a criminal conviction rate of 97 percent for the 3 percent of cases that go to trial in federal court. Jury consultants can be expensive - in the tens of thousands of dollars depending on their involvement - and are more commonly used in civil cases or by defense lawyers in capital murder cases.
But then, the occupation is an unusual case, Frederick and others said.
The protesters seized the refuge headquarters on Jan. 2, 2016, after a rally in nearby Burns to support father-and-son ranchers who were ordered to return to prison to serve out five-year arson sentences for setting fire to public land. It quickly became a stand against federal authority over public land.
"Your conservative kind of juror with a military background has been the kind of juror who has been more conviction prone," Frederick said. "But when you have a case where the issues may involve state's rights, or protests of the Bureau of Land Management, and where the defendants tend to be fairly conservative, the analysis must change. There really is a strong anti-government sentiment now existing in the conservative community.''
The government's decision was no doubt spurred by the surprising circumstances that developed in the first trial when one juror questioned another juror's impartiality in a note to the judge during deliberations, citing the other juror's past work for the federal Bureau of Land Management.
Brown ended up dismissing the juror who was the target of the note and replaced him with an alternate juror. Soon after, the reconstructed jury returned the acquittals. The dismissed juror later said publicly that he favored convicting Bundy and some of the others.
Margaret L. "Margie" Paris, a University of Oregon law professor and former dean of the university's law school, said it makes sense for the prosecutors to seek help.
"Not just because of what happened with the first trial, but because attitudes about the government in the Pacific Northwest are kind of complicated, and given the times we're in, I'm not surprised," Paris said.
But bringing in a consultant is by no means a slam-dunk, as it's portrayed on television, said Cornell University Law Professor Valerie Hans.
"In contrast to the new TV drama 'Bull,' in real trials it's often quite challenging to anticipate how specific prospective jurors will respond to the witnesses and evidence as the case develops during trial,'' Hans said. "So, 'the jury's out' on whether they will be able to help in selecting a favorable group of jurors that will see it the prosecution's way this time around.''
Opening statements by prosecutors and defense attorneys are set to begin next week after the Presidents Day holiday, if all goes as planned.
Prosecutors intend to present similar evidence as in the first trial, but have streamlined testimony significantly and plan to take just five trial days for their case in chief.
They may alter their arguments in relation to the federal conspiracy charge against the defendants, since jurors in the first trial felt the government failed to prove that the occupiers' intent was to block federal employees from coming to work.
They likely will stress that a large conspiracy can include several "subgroups of conspirators,'' with no formal agreement to conspire required, according to their trial memo.
They will argue that the defendants were, in varying degrees, participants in the larger conspiracy by turning the refuge headquarters into their "flophouse,'' replacing refuge signs with their own signs and stationing armed guards at the refuge tower and entry gates.
Evidence also will be directed more at the specific roles of the four defendants in the takeover, including testimony about allegations that some of them dug trenches and used refuge trucks and other equipment.
Defense lawyers will counter that the occupation didn't result from a formal agreement and that none of the four specifically thought about keeping federal employees from returning to work at the refuge.
They'll argue that the takeover was an "organic, evolving'' event, with people from disparate backgrounds who showed up for their own reasons.
Ehmer arrived, for example, to check out for himself what was going on at the refuge, then left to retrieve some tools at home before returning to do repair work at the refuge headquarters, he and his lawyer contend. Ryan told the FBI that he went to the refuge to find out what Bundy and others were teaching about the U.S. Constitution and responded to Bundy's call for support.
They'll also argue that they weren't violent.
The judge has made it clear to the new defendants and their lawyers that she won't tolerate certain things that went on during the first trial.
Ammon Bundy, for instance, can't testify for three days this time. The defense team has indicated that he'll be on the stand at most two days.
"If an objection is sustained, it's sustained,'' Brown also told the lawyers involved. "If you don't understand my ruling, ask. I can't have here what happened there. ... If I overrule you, please just accept the ruling so we can move on.''
The judge noted that defendants in the first trial "repeatedly made improper arguments to the jury or asked questions to which the Court had previously sustained objections,'' forcing the government to object "over one thousand times.''
She said she doesn't anticipate that happening in this trial.
-- Maxine Bernstein
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