By Roger I. Roots, J.D., Ph.D.
October 24, 2016
For the past six weeks Oregonians have been treated to a political trial of the “Malheur 7” (Ammon Bundy, Ryan Bundy, Shawna Cox, Jeff Banta, David Fry, Neal Wampler and Ken Medenbach,). I was privileged to have a ringside seat at the trial as a volunteer researcher and paralegal for Ryan Bundy (who represents himself) at the trial.
As I write these words, the jury is out, considering whether the defendants conspired to prevent U.S. Fish & Wildlife Service or Bureau of Land Management officers from performing their duties at the Malheur National Wildlife Refuge in rural eastern Oregon. The Bundy brothers and other defendants are alleged to have participated in an “armed standoff” occupation of the Refuge during January 2016 (while protesting the unconstitutional occupation by the federal government itself over the Refuge and other public lands).
The trial has revealed an astounding brave new world of modern surveillance and surreptitious “law enforcement” techniques. Drones flew over and recorded much of what went on. FBI agents captured and monitored every phone number connected between every participant. A search warrant after the fact gave the government permission to surf through 36 Laptops, smartphones, flash drives and other devices to build the government’s case. The FBI turned the analysis of Facebook likes, dislikes, messages, and posts into a science, with multiple agents assigned to that social media alone.
Outside the Refuge, FBI, Oregon State Police, and other law enforcement agencies swarmed over the countryside.
Government snipers appeared on local rooftops.
Barricades and barbed wire were erected to protect the school and courthouse from the alleged militia danger.
Undercover FBI agents dressed as redneck militia members roamed through local stores and menaced the streets.
Money was spent at such an extravagant pace that one professional auditor told me that the dollar amounts should have themselves triggered a separate criminal investigation.
The Feds have publicly claimed that the 41-day occupation caused at least “$6.9 million” in damages.
At trial, prosecutors objected, however, to every request to examine such claims. “Irrelevant!” said the prosecution. (In the event that any defendants are convicted, the Justice Department will surely assert such dollar claims in a demand for ‘restitution.’)
And there were undercover government informants. Everywhere.
Suspicions that the government’s narrative was largely erected with undercover agents were borne out during the first week of trial.
It was revealed by an Oregon State trooper that one of Ammon Bundy’s “bodyguards”—a man who drove him to his arrest—was an undercover informant.
Another informant (“Mama Bear”) was revealed when a defense lawyer subpoenaed her for the defense. The woman admitted that her entire trip to the Malheur Refuge was funded by the San Diego FBI office and that she was paid thousands of dollars to inform on the occupiers while helping out in the kitchen.
Each of these informants were revealed by accident.
Federal prosecutors vociferously refused to provide the names of other informants—citing case law that holds such revelations may put informants in danger.
Prosecutors even used secret information—not provided to the defense—to cross-examine “Mama Bear,” to the prejudice of the defendants.
For days, Marcus Mumford (attorney for Ammon Bundy) demanded more information about the extent of undercover informants.
Mumford pointed to the fact that the defendants were charged with conspiracy, and no one can be convicted of conspiring with undercover government agents.
(The trial was filled with unanswered questions about who brought and left ammunition and guns, who damaged property, and why some people but not others were charged.)
Finally the Justice Department stipulated (without naming any names) that at least nine occupiers were undercover informants; a number greater than the number of defendants on trial.
(Heavily redacted documents in the hands of the defense suggest the number of informants was actually at least 15.)
Significantly, the prosecution’s most damning evidence collapsed at the end of the trial when it was revealed that the man who ran a militia shooting range at the Malheur Refuge was himself an undercover agent.
Through the hard work of defense lawyers, “John Killman” was identified as a paid (“reimbursed,” he said) informant who traveled to the occupation at the behest of the government in a beat-up pickup truck to lead the occupiers in combat “safety” training. “Killman” had even trained defendant Jeff Banta to stop cars and pull out their drivers at gunpoint.
The Best of Roger I. Roots, J.D., Ph.D.
Roger Roots, J.D., Ph.D. [send him mail] is attorney, sociologist, and a member of the advisory board of the Fully Informed Jury Association. He is author of The Conviction Factory: The Collapse of America's Criminal Courts.
H/t Carol Bundy