Legal Reality Check with Todd Macfarlane

Jurisdiction, Discovery, Labels, Discrimination & Choosing a Jury – Welcome to Federal Court

Oregon Standoff “Discovery” Full of Interesting Revelations

The time of surprises in criminal trials is now supposed to be a thing of the past.  Unlike legal drama movies and TV series from Matlock and Perry Mason to Drop Dead Diva, in modern criminal cases, based on applicable rules of criminal procedure, there aren’t supposed to be any surprises from the prosecution.  The prosecution is required to disclose all of its evidence and all witnesses to the defendants well in advance so they can prepare for trial. This process is known as “discovery.”

As the Oregon Standoff case approaches trial, discovery has provided some interesting revelations. One of those interesting revelations is how the government has apparently labeled and refers to many witnesses in the case as “Unindicted Co-conspirators.”  Apparently this label includes virtually anyone who visited the Malheur Wildlife Refuge during the occupation.  There is a definite guilt-by-association insinuation. The insinuation is that if anyone went to the refuge, for any reason, they are considered by the government and the prosecutors to be co-conspirators.  What does this mean?  How does that reasoning apply to the media, for example?  Or to mediators?  Among other things, on one hand it may mean that the government simply did not seek a grand jury indictment regarding some of these people, or the grand jury declined to indict any other alleged co-conspirators. On the other hand, the more likely explanation is that the government is simply attempting to use this label and terminology as part of a threatening, fear-based tactic of harassment and intimidation, to send a message that benevolent big brother is always watching, and there may be more to come.

Discovery has also revealed some very interesting information relevant to the question of why USFWS employees were not even planning to return to work at the Refuge after the Christmas holidays.  According to information disclosed in the case, and seemingly corroborated months ago by an article in the Washington Post, days in advance of the Malheur Occupation, federal employees in Harney County had been instructed by their government supervisors not to return to work after the holidays.  Why?  One explanation is that, based on the electronic surveillance and domestic spying that was already going on, and had been going on for weeks, the federal government was taking preliminary precautions.  Another explanation might be that the federal government was actually trying to set-up the conspiracy/impeding claim in advance.  This raises some very interesting questions about who was doing the impeding, and even about who was conspiring to impede. So if you’ve got federal supervisors speculating about what is going to happen, and colluding and conspiring in advance not to go to work based on such speculations, is it a conflict between two alleged conspiracies?

From the outset I have been talking about judicial transparency issues in the context of the Bundy cases, and how U.S. Courts could improve transparency by allowing live video feed of court proceedings.  I am not the only one raising transparency issues in these cases.  Other media lawyers are arguing that the federal courts are trampling first amendment freedom of speech and press rights in these cases.   But apparently someone has been listening in some form or fashion to the transparency/livestream arguments, because now the Oregon Court has reportedly approved at least a live audio feed of the Oregon Standoff trial to the BLM office in Burns.  That’s a start.  But my question is: why the BLM office, and why only in Burns?  In authorizing the live feed to the BLM office in Burns, the court reasoned that this will allow federal employees who were alleged “victims” of the occupation, and who were allegedly impeded from going to work during the occupation, to be able to “follow the trial,” without having to go to Portland to do it.  In other words, after essentially having a paid vacation in January, federal employees in Harney County are now going to get paid to watch the trial at the BLM office for the next several months.  If the Government’s arguments hold any water at all, this was supposed to have been a crime against the country and all of its citizens, who actually foot the bill for everything that happened in Harney County last winter.  Under that theory, are we not all “victims,” who should be entitled to equal treatment, including equal opportunity to follow the trial?  The court’s other reported reasoning was to free-up more seating in the court room during the trial. All the more reason to have a live feed. What is being proposed is certainly a possible step in the right direction, but judicial transparency would benefit immeasurably from making virtual access to the proceedings available on a much broader basis.  If they are already going to the effort of recording the trial for purposes of a limited live feed, whether audio or video, why not just post it to a website, like a podcast, where anyone could go to watch or listen in?  Does that just make too much sense?

Shifting gears to jury selection.  Although I recently read a confidence-instilling story about juries, seating an unbiased jury in the Oregon Standoff case will be no easy task. Just to help clarify, however, even though the case and trial are in the Portland division of the Oregon federal district court, the case is supposed to be drawing from a state-wide jury pool. I say “supposed to be,” because there are lingering questions about the grand juries that handed down the indictments in these cases.  Clearly, based on population demographics, more potential jurors will come from the more populous areas of the state.  To assist in the jury selection process (and substantially reduce in-court time, with large numbers of potential jurors) the court sent out a questionnaire to 1500 potential jurors on the jury pool list.  Apparently, a relatively small percentage of the questionnaires were returned.  Based on answers to questions posed, both the government and the defense have already had an opportunity to object to, and eliminate some of the potential jurors based on obvious bias, and other reasons.  The jury will ultimately consist of 12 jurors who will deliberate and decide the case.  Because the case is projected to potentially last for several months, however, in addition to the 12 jurors seated, there will also be eight “alternates,” who will sit through the entire trial, and be prepared to participate in jury deliberations if, for some reason, any of the other jurors are not able to complete the process.  Judge Brown has said once the trial starts she anticipates that jury selection will take approximately three days, with more “voir dire” questioning from the judge.  Once the tentative jury panel is selected, each side will have the opportunity to strike three jurors per side, without any reason, after any and all potential jurors have been removed for good cause, to come up with a total of 20, with 12 jurors and eight alternates.  It will certainly be interesting to see who ends up on the jury.

But before the trial even starts, Judge Brown must rule on a major new substantive motion filed by Ammon Bundy’s attorneys, challenging the court’s subject matter jurisdiction and seeking dismissal of the case.  She has already signaled that she intends to reject the motion out of hand, without any serious consideration, but such an approach might have serious long-term ramifications.

Something to bear in mind is the fact that federal courts are courts of limited jurisdiction, whereas state courts have general jurisdiction.  Jurisdiction is a big, recurring issue in federal courts.  Ammon Bundy’s new motion re-asserts the Adverse Possession claim in a new way, and uses that theory to challenge the court’s criminal subject matter jurisdiction in the case.  The motion cites a number of cases, including United States v. Otley, 127 F.2d 988 (9th Cir. 1942), in which the Ninth Circuit Court of Appeals addressed competing claims to the Malheur National Wildlife Refuge, and discussed relevant issues.  This elevates the Adverse Possession claim to a whole new level that may have some people squirming.

In the motion, Bundy’s attorneys argue:

“While Congress long ago criminalized unlawful conspiracies designed to employ “force, intimidation, or threat” for the purpose of impeding “any officer of the United States” under 18 U.S.C. § 372, in a more specific and modern statute, Congress has expressly protected and condoned “[a]ny individual, group or corporation authorized to hold title to land in the State and who believes he has a valid claim under color of title” and who has employed the ubiquitous “force” and “ouster” requirements of adverse possession. . . It would be an extreme contravention of legal principles to allow, on the one hand, the United States to construe a controversy involving “use of force” under adverse possession as a criminal act, or, on the other hand, to permit the United States to pursue such a claim where these principles have divested the court of jurisdiction – as sanctioned by Congressional actions.”

In a nutshell, based on applicable law, the Oregon Standoff case may not be quite as clear-cut, black and white, open and shut as some people have wanted to believe.  As I mentioned in a previous column, the Adverse Possession theory involves highly appealable legal issues, which will be reviewed for legal correctness, without any deference to the trial court’s previous ruling(s).  At this point it does appear highly likely that the legal issues at stake in the case will only be fully addressed and resolved on appeal.

In the meantime the federal government is reportedly prepared to spend at least one hundred million dollars on the trials, while the defendants continue to sit in jail, not as punishment for anything they have done -- because supposedly they are entitled to a constitutional presumption of innocence -- but based instead on the theory that if they are released, they may not come back to court to argue the merits of their case. At least that is what the Government has argued.

Whether any of these arguments prevail or not, they will inevitably have some people squirming – which is probably a good thing.  According to one purported expert, there is a crisis of over-confidence in the legal profession. And squirming is a healthy antidote to over-confidence.

# # # # #

Todd Macfarlane, Newsbud Legal Analyst,  is an attorney, rancher, writer, political activist, conservationist and commentator.  Although he is comfortable wearing several different hats, beyond faith, family and grass-fed livestock ranching, his primary interests include natural law, property rights, western land-use, political policy, and what he often refers to as the “so-called justice system.”

LEGAL REALITY CHECK- Anatomy of a Conspiracy

The only thing that makes conspiracy illegal is an unlawful purpose or objective

Bearing the whole judicial transparency issue in mind, in this piece I’m going to follow-up on some previous thoughts.  It had not been my intention, originally, to make the Oregon Standoff cases the sole focus of this column, but as things are developing, at least for the time being, I’m going to acquiesce and go ahead and do that.  Those cases simply provide too much relevant material to ignore while it is still fresh.  As the first Oregon Standoff trial is now right around the corner, in the next few weeks I hope to also address issues associated with the jury selection process.

In one of my previous columns, I had mentioned that with the degree of electronic surveillance that is going on in these cases, the federal government had supposedly employed a “taint team” or a “filter team” as it has also been referred to, to ensure that prosecutors did not have access to privileged or otherwise improper information, like attorney/client communications, resulting from the extraordinary degree of electronic monitoring which is occurring in these cases.  But this week, unsurprisingly, it became clear that the filter team apparently hasn’t been doing its job, which resulted in objections to evidence the Government had improperly disclosed and sought to include at trial.  Judge Brown requested the Government to explain how and why this had happened, but after an assistant U.S. Attorney, an FBI agent, and several paralegals all testified about the filtering process and what they had done, and attempted to satisfactorily explain what happened, Judge Brown found that information they were seeking to introduce as evidence exceeded the scope of the Government’s  “Facebook Search Warrant.”  In the end Judge Brown requested further explanations, and it is still unclear what the net effect of all this will be.  But it is an interesting development, particularly in light of the fact that so much of the Government’s case is built on social media evidence.

The next issue I want to discuss is the Adverse Possession defense that has been asserted by Ammon Bundy’s attorneys.  In a nutshell, according to Cornell University’s Legal Information Institute:

“Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain common law requirements (open, notorious, hostile possession) are met, and the adverse possessor is in possession for a sufficient period of time.”

As I mentioned in a previous piece, Judge Robert Jones summarily rejected that argument, and quickly stated that an adverse possession claim cannot be asserted against the Federal Government.  Therefore, according to his ruling, Bundys would not even be allowed to present evidence regarding the Adverse Possession theory at trial. Without taking time to thoroughly research Judge Jones’ assertion at the time, it struck me that he was a little too hasty in his rejection of that theory.

Since then, however, Ammon Bundy’s attorneys have requested reconsideration of that decision, and Bundy’s former attorney, Mike Arnold, has written an interesting and thought-provoking article about the adverse possession theory, and Judge Jones’ treatment of it, despite specific federal statutes acknowledging application of the theory under certain circumstances.

While many have said that they do not believe that Ammon Bundy could mount a legitimate and successful affirmative Adverse Possession claim at the Refuge, to a large extent, they are missing the point. The point is, in a criminal case like this one, Adverse Possession is not being asserted as some kind of affirmative claim theory, but is being asserted as a defense – a defense seeking to provide evidence of an alternative purpose, intent and state of mind.

Let me explain how this works.  The Malheur Refuge Defendants have been charged with conspiracy to impede a federal officer.  Conspiracy charges are all about intent.  The reality is, a conspiracy is nothing more than an agreement.  Almost all surprise birthday parties, for example, result from a conspiracy to have a surprise party.  People are conspiring continually, to do all kinds of perfectly legal things.  Have you ever conspired to pull a prank or to play a practical joke? Men and women often conspire to conceive children – or to simply engage in acts that can lead to conception of children.   It is entirely possible to conspire to do good, perfectly legal things.  It happens all the time.  Lawmakers are continually conspiring to pass legislation.  Each and every plea deal entered into by any of the defendants in the Oregon Standoff cases was the result of a conspiracy by the prosecutors and defense attorneys – for the defendant(s) in question to enter into a plea agreement, rather than go to trial.

While the word “conspiracy” seems to have negative connotations, such connotations are generally unfounded and misguided.  The only thing that makes a conspiracy illegal, immoral, or unethical, is the purpose or intent of the agreement.  Illegal conspiracy is all about illegal purpose, intent and state of mind.  The only thing that makes conspiracy illegal is an unlawful purpose or objective.

In the Malheur Refuge cases, the primary charge is Conspiracy to Impede a Federal Officer. This means that in order to prove its case, the Government must show that the Defendants specifically intended to impede federal officers, and that at least some of them must have entered into an express agreement to do so.  Arguments have been made that the conspiracy statute is unconstitutionally void for vagueness.  That is a legal issue that will probably have to be resolved on appeal.  In the meantime, let’s assume, at least for purposes of this discussion, that the statute is valid.

And this is where the Adverse Possession defense enters into the picture.  As with many agreements and so-called conspiracies, there can be more than one purpose.  Ammon Bundy’s attorneys are seeking to present evidence and arguments that the primary purpose or objective of the Malheur Occupation, and any associated “conspiratorial agreement(s)”, were actually to stake an Adverse Possession claim at the Refuge.  They assert that there is plenty of evidence to support this position.  Whether such an attempt was well-founded and/or would have ultimately been successful is not even the question when the theory is raised as a defense.  The question is what was their purpose and intent?  Was it to impede federal officers, or was it to stake an Adverse Possession claim? Or was it both?

The Government has the burden of proof.  In order to prove its case, the Government must satisfy its burden of showing  that there was a conspiratorial agreement between the parties, and that at least one of the express or primary purposes of that agreement was to impede federal officers.  If there was another primary purpose (such as Adverse Possession), it will not be enough to simply claim or even show that impeding federal officers was a corollary, unintended consequence of their otherwise arguably lawful conspiracies and actions.

Now we’re getting down to the real nub of this issue.  From what I understand, Judge Jones ruled that the Defendants can’t even assert an Adverse Possession defense or present any evidence to support it.  For some time, I have been threatening to write a piece about the fox guarding the henhouse in the federal court system.  And this particular issue is a good example of what I’m talking about.  If the trial court will not even allow the Defendants to assert this legal theory as a defense, this could be viewed as a very legitimate example of arguable fox guarding the henhouse in this case.

Experience demonstrates that this is an issue worth exploring.  Several years ago in a high profile Utah federal case with some similarities, San Juan County Commissioner Phil Lyman was likewise charged with conspiracy -- to operate a motor vehicle in a closed area on BLM land.  He was charged with both conspiracy to engage in such trespass, and actually doing so.  Hypothetically, even if he hadn’t actually engaged in such alleged trespass, he could have still been charged with, and convicted of, conspiracy -- if it could be proven that is what he intended to do, and that he entered into a conspiratorial agreement to do so – whether carried out or not.

According to a variety of sources, the resulting Lyman prosecution itself was likewise the result of conspiracy and collusion between the Federal Government and a variety of Environmental Advocacy Groups.  Unfortunately, the full extent of that collusion did not fully come to light until after the trial was already over, after which Utah District Court Judge Robert Shelby was recused from further involvement in the case, prior to sentencing, based on his close personal relationship with some of the head figures in the Southern Utah Wilderness Alliance, who were actively involved in the whole collusion to prosecute Lyman.

But that’s not the end of the story.  After Judge Shelby was recused, the case bounced around half the Utah Federal District Court bench, with one judge after another recused, based on close connections to either environmental interests or the BLM.  In the end four judges ended up being recused.  Finally, the case came to rest with Chief Judge David Nuffer.  Although Judge Nuffer apparently didn’t feel compelled to recuse himself (and it is unclear if the issue was even raised with respect to him), Nuffer’s previous law firm, Snow, Nuffer, Engstrom & Drake, likewise had very close ties to environmental advocacy groups, particularly including the Grand Canyon Trust.  Nuffer’s fellow founding attorney/partner, Steven Snow, had served on the board of trustees of the Grand Canyon Trust, including at least one stint as chairman of the board, before stepping down when he was asked to serve as a “general authority” for the LDS Church.

Bringing the fox/henhouse issue full circle, at the very least it appears that Oregon federal judges are predisposed to reject the Adverse Possession theory without even allowing it to be presented at trial. That is a question of law that is highly appealable for legal correctness, with no deference to the trial court’s decision.

On that basis, if that happens, I’m going to make a prediction right now:  If the trial court refuses to even allow evidence and arguments regarding the Adverse Possession defense to be presented at trial, my prediction is the case is already headed for an appeal.  And my further prediction is that decision would be reversed on appeal, with the case remanded back to the trial court for a new trial, allowing admission of the Adverse Possession defense and supporting evidence.

Rumor has it that the Department of Justice has allocated a full hundred million dollars to try these cases.  Who knows how much the appeal(s) will cost? And what about a retrial?  Those are the kinds of questions people begin to ask when they start trying to read the tea leaves, and the writing on the wall.

Once again, if all this leaves you scratching your head, you’re not the only one.

# # # # #

Todd Macfarlane, Newsbud-BFP Legal Analyst & Author,  is an attorney, rancher, writer, political activist, conservationist and commentator.  Although he is comfortable wearing several different hats, beyond faith, family and grass-fed livestock ranching, his primary interests include natural law, property rights, western land-use, political policy, and what he often refers to as the “so-called justice system.”  

Assault on Judicial Transparency: From 4th Amendment to Lengthy Pre-Trial Detention & One-Sided Plea Deals

Continuing Case(s) in Point about Judicial Transparency & Other Things

This is another follow-up to my previous BFP pieces about the lack of transparency in the so-called justice system.

When I started on this subject I had not planned on focusing so much on the Bundy case(s), but, at least for the time being, they keep providing such good examples of both the judicial transparency issue I’ve been talking about, and some other basic legal reality check principles, that I can’t resist continuing to use relevant examples from those cases.

Last week the Internet, including Twitter, was abuzz with a story about Ryan Bundy.  What really happened is anybody’s guess.  According to the Bundy family and their supporters, as reported by Fox News, at a time when no court hearings were scheduled, Ryan was forcibly transported from the Multnomah County Jail, and taken somewhere.  The concern was that he was being taken to a hospital to be subjected to forced surgery, against his will, to remove something from his arm or shoulder.  That something was a bullet, bullet fragment, or shrapnel, depending on who you ask.  Ryan received it as part of an injury he sustained at the stop when LaVoy Finicum was killed.

Other journalists less sympathetic to the Bundy case reported that the whole incident was exaggerated, dramatized, and they questioned both whether there was in fact any bullet or bullet fragment, as well as why Ryan wouldn’t want to have it removed to serve as evidence of some sort.  One of the alleged points of contention surrounded the question of what would happen to such alleged evidence, and who it would belong to.  According to Ryan’s reported reasoning, as long as the object remained in his body, he would maintain in physical possession and control of it, whereas if it was removed, who knows what might happen to it.

Multiple media sources have reported that regardless of the reason(s) for Ryan’s apparent temporary removal from the jail that day, when jail guards came to get him, some sort of scuffle ensued between Ryan and the guards, and as a result of that purported scuffle, upon his return, Ryan has subsequently been moved to “disciplinary” quarters, including solitary confinement.

Now, for purposes of this discussion, here’s the most important point:  According to Aimee Green at the Oregonian, there were no court records explaining where or why Bundy was being taken.  According to her, there was nothing on the court calendar, including some kind of hearing or court proceeding, that would explain what had happened.  So regardless of the conflicting stories about what had happened, apparently there was no way to actually confirm or verify anything.

This is a subject Cheri Roberts and I discussed on her Challenging the Rhetoric radio program last week. Cheri wanted to know what would be required, legally, to do what the Bundys were suggesting had happened, and why Ryan might be opposed to it – because, arguably, extraction of whatever was in his arm might provide definitive evidence regarding the ongoing investigation into the actions of FBI HRT members during the fatal stop that resulted in LaVoy Finicum’s death, which is a good point.

As I explained to Cheri, however, regardless of the fact that Ryan is being held in pre-trial custody, the Fourth Amendment still provides protection against unreasonable searches and seizures.  And any such purported surgery would be considered and treated as a search, and recovery of any object(s) would be considered and treated as a seizure of evidence.  Under the constitution, in order to undertake anything of that nature, even with someone in custody, who has been deprived of their liberty, in the absence of valid, voluntary consent, there must be constitutionally adequate due process, including reasonable notice and a meaningful opportunity to be heard.

Any such procedure without consent, and against a person’s will would require a warrant or court order, signed by a judge, following procedures constituting due process.  In other words, it’s not just something that jail guards, jail administrators, law enforcement, including the FBI, or the Justice Department can lawfully do without a court order.  It has to be ordered by a judge.  And any time such due process occurs in the court system, there is supposed to be a record of the proceeding.  And that brings us back to the whole transparency issue that I have been talking about.

Ever since last week, no one really seems to know what actually happened.  Upon Ryan’s return to the jail, apparently he was placed in “disciplinary quarters” and solitary confinement, so he hasn’t had much of a chance to communicate or talk to anyone, and court records don’t seem to shed light on any of this.  And it’s not just Bundy-bashers who are interested in this sort of thing.  Ryan has a family.  He has a wife and children.  They all want, and deserve, to know what is going on with him.  But, for a variety of reasons, there appears to be a woeful lack of transparency.

On this point, one of the phrases we often hear – especially when it comes to judicial processes -- is: “the record speaks for itself.”  And that is supposed to mean something.  There is supposed to be a record, and when there is, there is no need to speculate about it, because the record speaks for itself.  In a truly transparent system, that would be the case.  We could look at the record and know exactly what was going on.  But, as this situation illustrates, apparently that is not always the case.

And speaking of the T-word, for the sake of transparency, Cheri Roberts wanted to know why Ryan might not want to have the object removed from his arm, to possibly help answer and resolve some lingering, unanswered questions.  I told her I couldn’t speculate as to Ryan’s motives in that regard, but as I explained to her, transparency is something we expect and require of our governments.  Individuals, on the other hand, have a right of privacy, and are not required to be transparent.  As a general rule, in the absence of probable cause, due process, and other requirements, individuals are not required to waive their privacy; they are not required to have their persons, places and papers invaded, and cannot be forced to testify and provide evidence against themselves.  The constitution protects individual privacy.

And here’s a big point that many people seem to forget – especially in this case, that I later had the opportunity to discuss in more detail with Trent Loos on Rural Route Radio.  Prior to trial, after a person has been accused and charged with a crime – even while that person is being held in pre-trial custody, they are entitled to a constitutional presumption of innocence.  What this means, among other things, is that they are entitled to substantive and procedural due process; they are entitled to their full Fourth Amendment protections against unreasonable search and seizure, and; nothing that happens during the pre-trial phase or custody is supposed to be any form of “punishment.”  Punishment is only supposed to be imposed once a person has been convicted – either by admission, or after being found guilty beyond a reasonable doubt.  The only reasons a person is supposed to be held in custody pending trial, is based on legitimate concerns that they might attempt to abscond, and fail to appear for future court proceedings, including trial, or that they pose a genuine threat to themselves or public safety.  In most cases, bail is sufficient to insure court appearances, and that is the method most often used as a substitute for pre-trial detention.

And that certainly raises some interesting questions in this case, where so many of the defendants have now entered into plea deals after being held so long in pre-trial detention.  The reality is, the conditions in pre-trial detention – especially for federal inmates – are usually much worse than post-trial incarceration.  In my view, one of the government’s big strategies in this case has been the use of lengthy pre-trial detention – whether it is warranted and justifiable or not – as leverage to get some of the defendants to make plea deals.

I have been scratching my head about this particular issue for months.  How can the government possibly justify such extensive pre-trial detention for so many of these defendants?    That the government might charge some of them is one thing (I have said on multiple occasions, that I don’t think some of the defendants, including Wes Kjar, for example, should have ever been charged in the first place, and if the government wanted to get rid of those cases, the charges should have been dismissed outright), but to insist on holding so many of them in pre-trial detention for so long is another matter entirely.  And I can’t see the legitimate justification.

In my view, Dave Bundy, who is currently being held in Nevada, is a prime example of this.  That Dave might be charged with something is one thing (it will be interesting to see what evidence is ultimately presented), but the only reason I can see that the government would insist on holding him in custody for months pending trial (it will be close to a year by the time the case finally goes to trial in early 2017) is purely for harassment, and presumed guilt by association, because his last name is Bundy.

As part of the government’s one-size-fits-all approach in these cases, unreasonable pre-trial detention appears to be a big part of the government’s strategy in pressuring a whole bunch of the Defendants to enter plea deals, purportedly “admitting” that they engaged in a conspiracy to impede federal officers.  On that score, to the extent many of these defendants were part of any alleged conspiratorial agreement, I seriously doubt that the affect such actions might have on federal employees even occurred to them, let alone served as any kind of motivating force. Under this theory, one might argue that the federal government shutdown in October 2013 was a conspiracy to impede federal officers, and that all congressmen who did not vote for the Continuing Appropriations Resolution, 2014, were part of the conspiracy.  One of the big issues becomes the question of who, if anyone, might have actually intended to impede federal officers.

For many of these defendants, however, having been left with the impression that once the government had locked them in custody, it fully intended to throw away the key, the thought of better treatment in prison –  in the post-trial, punitive phase of the process -- rather than prolonged pre-trial detention was probably an incentive to do a plea deal – even if it meant admitting to things they never did, including, in Wes Kjar’s case, things they never even had an opportunity to do – just to reach a resolution and move on.

When it comes to plea deals in this case, there is anything but a level playing field.  The government has all the leverage, and seems to be using it to full advantage.

Finally, and in all fairness to the bashers, there is no question, the actions of some of these defendants (including a wide variety of bizarre court filings) are not helping their cause in this regard.  Many of them have now insisted on representing themselves, and have made a variety of statements and court filings that raise all kinds of questions, including challenges to the court’s authority, oath of office, etc.  While I seriously question the wisdom of much of what they have done in this regard, objectively, the bottom line is the vast majority of it amounts to nothing more than “political speech.”  Among other things, they are exercising their right to freedom of expression and freedom of speech – which they still have a right to do, because they have not yet been convicted.  But they are saying things the federal government does not want to hear, and it certainly appears that they are being punished for expressing such views, even at this stage of the proceedings.  In fact, one could argue that most of the pre-trial detentions in these cases are nothing more than pre-trial punishment for political speech.  To a large extent, what they are doing seems to be the functional equivalent of what other political dissidents have done, around the world, and ended up being jailed indefinitely in places like China or the USSR for criticizing their own governments.  In this case, it appears that the biggest so-called crime, and the one for which they are being subjected to lengthy pre-trial detention, is political speech against the government.  In that sense, their situation does bear similarities to political prisoners around the world.  There are parallels between how they are being treated, and how so-called enemy combatants are treated by the U.S. Government, at places like Guantanamo Bay.  And there seems to be little question that the government has chosen to use these defendants as examples, to show the rest of the country what can happen when you become too vocal, too critical of our government.

Once again, if all this leaves you scratching your head, you’re not the only one.

# # # # #

Todd Macfarlane, Newsbud-BFP Legal Analyst, is an attorney, rancher, writer, political activist, conservationist and commentator.  Although he is comfortable wearing several different hats, beyond faith, family and grass-fed livestock ranching, his primary interests include natural law, property rights, western land-use, political policy, and what he often refers to as the “so-called justice system.”  

LEGAL REALITY CHECK – A Case in Point Regarding Judicial Transparency (among other things)

This is a follow-up to my previous BFP piece about the lack of transparency in the so-called justice system.

OPB recently broke a story about unique developments in the Bundy/Malheur Refuge case that provide several perfect examples of the kind of lack of transparency that I’ve been talking about, not to mention common distortions by the mainstream media.

I’ll start out by discussing the media distortion issue first.   In the article, the OPB headline asserted that the Bundy defendants had received “special privileges” to have unmonitored meetings with their attorneys to help prepare for their upcoming trial.  From my perspective, this characterization is a total distortion of what is really going on.

The reality is, Judge Jones was making reasonable accommodations to help ensure compliance with constitutional requirements.  A more appropriate description would have been “Judge grants special accommodations under circumstances to ensure constitutional right to legal counsel.”  Another way to phrase it might have been: “Court takes action to help ensure that, under the unique circumstances of the case, Defendants’ civil rights are not violated,” (and hopefully avoid appealable errors).  Or, here’s yet another possibility:  “Based on Multnomah County Jail’s questionable attorney/client communications practices, judge takes action to help ensure effective right to legal counsel.”

One of the biggest challenges is with the characterization “privileges.”  The distorted notion that these defendants received some special privilege in this regard doesn’t hold water.  And it is not consistent with what Judge Jones said.  He said they received “special accommodations.”  To characterize what happened as special privileges is the functional equivalent of making special accommodations, under applicable circumstances, for someone with a hearing impairment or other physical handicap, etc., and call such accommodations “special privileges.”  As in this case, such a description is a distorted and misguided characterization.

Granted, the Bundy/Malheur case is unique.  It involves multiple defendants, and multiple attorneys.  It will require special accommodations to ensure compliance with constitutional requirements.  Special accommodations are not the same as special privileges. This isn’t doesn’t even involve “privileges.”  It involves fundamental constitutional rights. Everyone is entitled to such accommodations as are reasonably necessary to ensure constitutional compliance and protection of these rights.  Moreover, because it appears that these particular defendants are being treated essentially as political prisoners and enemies of the state, they are apparently  concerned about obvious government eavesdropping (which everyone knows is already happening at level, let alone a high-interest situation like this one), and their ability to have unmonitored, confidential communications with their attorneys.

And just to explore this issue a little deeper, it is my understanding that any and all attorneys or other parties (including me) who have had anything to do with this particular case (the Bundy/Malheur case) or related parties are subject to very invasive electronic surveillance.  Speaking of transparency, because of this unprecedented level of electronic spying – even on attorneys’ communications with their clients – from what I understand, the government has purportedly undertaken the unusual step of implementing what is referred to as a “taint team” that is supposed to be scrubbing all information made available to the prosecutors to supposedly prevent the disclosure of confidential communications between the defendants and their attorneys.  So in short, one team of federal domestic spies are monitoring all the parties’ communications, including the communications of court-appointed attorneys, while another team of federal good Samaritans are trying to make sure the information the other team has access to isn’t being misused for criminal prosecution purposes.  Doesn’t that make you feel better?

I’ll have to confess that the thought that regardless of what I might want to think, I have zero privacy, and it’s not just God watching my every move gives me a lot to think about.  But I try to take comfort in the fact that to the extent any of my communications with any of the subject parties or their attorneys are covered by attorney/client privilege, there is someone out there who will dependably and good-naturedly ensure that those communications won’t be shared with the prosecutors.  It gives me warm and fuzzies just thinking about it.

Despite all the legitimate justifications for the communications arrangements, in attempting to finally disclose and explain the special attorney/client communication arrangements made available to the Bundy defendants, Judge Jones has now said some things that ought to be a concern for a number of reasons, and in this part of his explanation he does use the words “privileges,” and “special treatment,” which I find to be both troublesome and problematic. He said:

“Initially, I chose to keep these special accommodations off the record to avoid publicity based on advice from the Multnomah County Sheriffs office and the USMS suggesting that the special treatment might pose a danger to these defendants and influence other inmates at the jail to request similar privileges.

So, in a nutshell, what we have here is a federal judge making off-the-record legal decisions, based on secret meetings, and ex parte advice from a county sheriff’s office, and the US Marshall Service, and keeping the whole thing under wraps “for weeks.”   It looks more like months actually.  And a big question revolves around why on August 4th, over two months later, Judge Jones would finally provide a carefully worded “declaration” disclosing the whole thing.  There is no question that how he has handled the whole situation has a tendency to raise suspicion, prompt speculation, and make the whole situation appear to be much more “special” than it actually is, and raises all kinds of questions.  It is genuinely unclear why he didn’t just take an open, transparent, straight-forward approach.  But of course that would have deprived quite a few people of something “special” to fuss about.

Regardless of all those issues, this is a perfect example of lack of transparency in the judicial system, and why it is so problematic.  In my view, the explanation Judge Jones provided raises more questions than answers, and the approach he chose to take has caused more problems and issues than he was purportedly seeking to avoid.  While we’re talking about Judge Jones, however, I also want to say something about one of his other rulings.

During a recent hearing addressing pre-trial detention, Ammon Bundy’s attorney, Marcus Mumford, outlined some of the defenses and legal theories he intended to assert, including adverse possession.  He said that the Malheur occupiers, including Bundys, were seeking to stake an adverse possession claim at the refuge.  My understanding of the argument was that he was seeking to assert the fundamental principles involved in an adverse possession claim, and then seeking to attempt to apply those principles and concepts to the situation at the refuge, in the form of a defense explaining why Bundys were doing what they were doing at the refuge.  Judge Jones quickly, and seemingly off-the-cuff, rejected the argument, however, and ruled that it is not possible to make an adverse possession/use claim against the government.

The point I want to make in that regard is that Judge Jones’ blanket observation is not entirely true, and he seemed to be very hasty in rejecting the conceptual principles.  It is worth noting that these principles were not being asserted affirmatively, seeking to have the court issue a ruling that the occupiers were legally entitled to some sort of decree of adverse possession.  Instead, the principles were being asserted as a defense, to help explain their motives and what they were thinking – which seems to be relevant, especially in light of latent assertions that they were not only seeking to impede federal officers, but that they were also conspiring to overthrow the federal government.   If, however, they can show that what they were really trying to do was assert an adverse possession claim -- even if they were wrong in their reasoning -- it could change the equation, particularly with respect to intent.

In terms of exploring and applying the principles involved in an adverse possession claim, it is useful to note that the whole concept of RS 2477 rights-of-way across federal land is based on grandfathered adverse use and prescriptive rights principles. So there is some precedent for application of the principles.

But if all this leaves you scratching your head, you’re not the only one.

# # # # #

Todd Macfarlane, Newsbud- BFP Legal Analyst & Commentator, is an attorney, rancher, writer, political activist, conservationist and commentator.  Although he is comfortable wearing several different hats, beyond faith, family and grass-fed livestock ranching, his primary interests include natural law, property rights, western land-use, political policy, and what he often refers to as the “so-called justice system.”  

LEGAL REALITY CHECK – It’s High Time the Court System Takes a Serious Look at Transparency — by Todd Macfarlane

This is one of those issues that should quickly become self-evident.

Our legal system goes by a number of different names.  Some call it the “Justice System.”  Others call it the “Court System” or the “Judicial System.”  Still others refer to it as the “Legal System.” Based on my experience and observations, I often refer to it as the “so-called justice system,” for a variety of reasons.  But whatever label is used, there is no question, to the casual, outside observer, our legal system is completely shrouded in secrecy and mystery.  It is the functional equivalent of the Holy Bible, printed in Greek and Latin, prior to William Tindale’s English translation, so that normal people could read and understand it.

For some time I have been talking about another piece I’m working on about how the federal court system is the epitome of the fox guarding the hen house – especially when it comes to handling cases involving the federal government.  One of the basic tenets of natural law is that a party cannot be an impartial arbiter of a dispute in which that party (in this case the federal government) is involved.

While this piece addresses broader issues of judicial transparency beyond the federal court system, it seems to coincide with a lot of other information recently reported, including articles about the Nevada Federal Court’s protective order preventing disclosure of almost all information in the “Bundy Standoff” case, and Katie Aguilera’s recent piece about the complete lack of transparency in federal plea bargaining (http://www.boilingfrogspost.com/2016/07/14/how-sentence-enhancements-increase-plea-deals-reduce-transparency-in-the-u-s-justice-system/).

Wouldn’t the public be interested to know that in many federal plea bargain arrangements, including virtually all the Oregon Stand-off Plea Deals, there is almost no negotiation.  The defendants have virtually no say in the “take–it-or-leave-it” terms that are offered.  The playing field is anything but level.  The carrot they are offered is little or no incarceration, if they will expressly admit that they participated in a conspiracy to impede federal officers. If there was some sort of conspiratorial agreement – whatever that means – between some of the parties, I seriously doubt many of these defendants had given the possibility of impeding federal employees a second thought,  let alone were aware of the purported terms of any such purported conspiratorial pacts  I have had an opportunity to observe this process up-close and personal and I don’t see how the defendants could not have felt coerced to accept and admit to language and terms that they would have never even considered, let alone agreed to, on a level playing field – all in the name of creating leverage for the government’s case.

And the same thing often applies to the flood of “friendly” federal sue-and-settle lawsuits pursued by environmental special interest groups under the Equal Access to Justice Act.  They have learned that this process often allows them to profit financially while essentially dictating federal land-use policy, in a process that is typically applies public tax dollars to advance private agendas – with a woeful lack of transparency in the negotiation and deal-making process.

Other prime examples include both secret FISA Courts, and the entire grand jury process by which indictments are obtained.  There is zero transparency.  No wonder, as an old saying goes, even ham sandwiches are so susceptible to indictment.  But in reality, the secrecy and lack of transparency goes much deeper and is a big part of the entire system.  In the federal court system protective orders limiting access to information are common place.  And in the vast majority of cases, it is the other branches of government which are seeking to keep as much as possible under wraps. This approach should leave any thinking person seriously scratching their head, and asking questions.

While there have arguably been vast improvements in overall governmental transparency over the last few years, for the most part this does not apply to the court system.  The court system is still very antiquated and mysterious – especially when it comes to transparency.   Just as an example, many courts will not even allow pictures to be taken in the courtroom, let alone audio or video recording. And they often apply double standards to these restrictions and limitations.

Consequently, most people’s perception of what happens in the court system comes from movies and television.  Movies like My Cousin Vinnie, LA Law and Drop Dead Diva inform their understanding (and have actually also been cited and referred to by supreme court justices).  Even most attorneys think the best lawyer they know is Gregory Peck, playing Atticus Finch in To Kill a Mockingbird.

In the day and age in which we now live, one of the biggest things that has allowed people who are really interested in such things to become better informed about governmental processes is live-streaming of other governmental functions, including legislative sessions and committee meetings, whether it be Congress, state legislatures, or local municipal and county governments.  This contributes substantially to transparency in government, and allows average, “normal” people better opportunities to see and better understand what is going on.

Why shouldn’t the same concepts apply to the judicial branch?  Given the fact that many courts don’t even allow the taking of pictures in the court room – no actual images of anything – while other courts do, what is the policy justification for such rules?  Back in the day, frontier court trials were major public events.  Everyone wanted to see for themselves what was happening.   For the most part today court sessions are still considered “public” and are fully accessible to the public, but how many members of the public are in a position to participate in person?

Transparency benefits everyone.  The same principles that apply to law enforcement dash-cams and body cams also apply in the courtroom – transparency enhances understanding and accountability.  What can possibly be the reason why the Judicial branch should not be subject to the same concepts and requirements of transparency and accountability?

Most court proceedings are already recorded several different ways.  One of the recordings is for security purposes.  Another entirely different set of recordings is used to help preserve the “record” of the proceeding for possible appeal.  When I was recently in a state courtroom observing a jury trial, I counted at least seven cameras – seven.  What would be wrong with having one more camera, with a live stream that would allow the public to follow the proceedings, remotely, just like they do with so many other government functions?

This sort of discussion and suggestion will almost undoubtedly be viewed as unwelcome boat rocking of the status quo.  Something that some may find interesting to know is that the very stiff, stodgy and tradition-bound legal system does not look kindly on boat rocking.  Bar associations and their rules discourage attorneys from criticizing the system and applicable status quo.

Obviously, there would be some cost associated with implementing such transparency.  And undoubtedly there will be those who say that the cost of transparency is just too high. But what I’m thinking is that if more people had an opportunity to watch and observe the system in action, they could and would suggest a myriad of ways to help stream-line and make the system more efficient and effective.

Seriously, wouldn’t more transparency be in everyone’s (except perhaps the lawyers’ and judges’) best interests?

# # # #

Todd Macfarlane, Newsbud- BFP Legal Analyst & Commentator is an attorney, farmer/rancher, writer, political activist and commentator.  Although he is comfortable wearing several different hats, beyond grass farming, his primary interests include natural law, property rights, western land-use, policy, and what he often refers to as the “so-called justice system.”  He also has a keen interest in waves – making a few, riding some, and being content to simply watch and admire others.  For Newsbud-BFP, he alternates between several columns, including Legal Reality Check, and The Tug-o-War (over public lands and resources in the West). In this particular column, he's wearing his cowboy hat (or lawyer suit)