Juror 4 has so far provided the only public explanation of the behind-the-scenes discussions that led to the acquittal of Ammon Bundy, his brother and five others on federal conspiracy charges stemming from the Malheur National Wildlife Refuge occupation.
Readers have asked to hear more from him about the jury's reasoning in reaching the surprising decision.
Juror 4 - a 44-year-old business administration student at Marylhurst University who served in the Navy during the Iraq War - went into detail in a series of email exchanges with The Oregonian/OregonLive that were used in news stories.
Here's a transcript of the emails, with some minor editing for brevity or clarity. He's asked not to be identified for fear of retribution. The judge sealed the names of all nine women and three men on the jury, citing public safety.
Juror 4 makes references to U.S. District Judge Anna J. Brown; prosecutor Ethan Knight; Juror 11 who the judge removed from the jury after Juror 4 questioned his objectivity; Juror 18, who replaced Juror 11; and Ryan Payne, one of the leaders of the occupation with Ammon Bundy.
He also references a Jan. 2 rally for Harney County ranchers and then the takeover of the refuge later that day.
All seven defendants faced a charge of conspiring to impede employees of the U.S. Fish & Wildlife Service or U.S. Bureau of Land Management from doing their work through intimidation, threat or force during the 41-day occupation.
His initial email:
It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove "conspiracy" in the count itself - and not any form of affirmation of the defense's various beliefs, actions, or aspirations. Proving the elements of conspiracy, especially given the body of evidence we were forced to restrict ourselves to consider when judging, was far too great a standard to meet (without using our imaginations, prejudices, etc.).
The judge floored us when she said that there was no statute against impeding federal officers (by force, threat, or intimidation), nor was there a significant penalty applied to criminal trespass. We all queried about alternative charges that could stick and were amazed that this 'conspiracy' charge seemed the best possible option. It was not lost on us that our verdict(s) might inspire future actions that are regrettable, but that sort of thinking was not permitted when considering the charges before us.
The prosecution asked us to neglect Judge Brown's final (binding) instructions when they asserted in closing that adverse possession = conspiracy to impede (as per Mr. Knight's closing argument), as if defining actions was all that was needed to convict. All 12 agreed that impeding existed, even if as an effect of the occupation, and that something was very wrong. But we were not asked to judge on bullets and hurt feelings, rather to decide if an agreement was made with an illegal object in mind. It seemed this basic, high standard of proof was lost upon the prosecution throughout. Inference, while possibly compelling, proved to be insulting or inadequate to 12 diversely situated people as a means to convict. The air of triumphalism that the prosecution brought was not lost on any of us, nor was it warranted given their burden of proof.
Regarding my role in crafting the letter that led to the dismissal of juror 11, I can say that it was not only necessary but also borne out of much patience in dealing with a fellow who had zero business being on this jury in the first place. He effectively wasted a great deal of our time as he (irrationally) promoted his theory of conspiracy despite the absence of evidence. Also, he violated Judge Brown's explicit orders by hearkening to 'evidence' that was never admitted in this case, refused to consider the defendant's state of mind, and used imaginative theories to explain key actions. How this juror slipped through the cracks is mind boggling and very disconcerting.
You should know that the sentiments expressed in that letter were the exact thoughts I had when juror 11 first made his opening remarks on day one of deliberations, but I resisted the impulse to send the question at that time and give this fellow the chance to convince/explain. It seemed wise to suspend my shock/disbelief in him until a thorough examination of his mindset was complete (and the other jurors could weigh in themselves on his various theories). The vast majority of time was spent trying to deal with his bizarre theories, compared against what was admitted and/or expected of us as standards of judgment. While I wish now that I had sent the letter on day one, since it would have alleviated much stress for all of us, I would wish to have the time/opportunity to expand or alter my perspective that we afforded him.
As I peruse the responses of many interested parties in this case, many of which express 'profound regret' over the verdicts, I am baffled by the flippant sentiments that seem to dominate the landscape. Several questions immediately percolate in my mind: do these folks even know what it took to arrive at a verdict on any one of these counts? How could 12 diverse people find such agreement unless there was a colossal failure on the part of the prosecution? Don't they know that 'not guilty' does not mean 'innocent'? I have many such thoughts swirling around in my head that I'd like to vent, but I need to break it off for now.
***
We asked a series of follow-up questions: How did the jury feel about starting all over again? Did other jurors know about your note regarding Juror 11 -- and how did they react to it? How did the jury start anew? Why the substantially shorter time period for the final verdicts?
Juror 4's response:
The feeling, at the time of the reset, was universal relief that we even had a chance to hear from a more objective juror. It was not a relief to think we could be there today (Friday) or Monday, frankly, but all said they were more than willing to start over in order to erase the ill feelings created while deliberating with juror 11. We had no knowledge about juror 18's leanings in any regard prior to her coming in (we maintained a strict standard to not discuss the case with each other before deliberating).
Only juror #1 knew about my note (since he had to pass it on to the judge), or so I thought. Juror 11, when we later were arguing about his bias, said he knew what I must have been doing when I folded a note and quietly handed it to Juror 1. My note was a last resort, frankly, because I made the entire jury uneasy by directly challenging juror 11 (on Tuesday morning; more than 16 hours of deliberations had passed) about his stated bias. Many jurors were upset at my direct approach and seemingly personal challenge to him. What I had said to him was far more upsetting than the contents of my note, and so I don't think the jurors should have been surprised. Of course, I didn't openly state to the jury that I had an open question before the court until the next morning (Wednesday) when juror 11 played the victim. I again reiterated that this whole issue was of his own making, and although he calmly explained what his bias was or meant to him in this case, I was anxious to hear from the court.
It is a fact that we were so exhausted by this time that we nearly submitted final ballots on Wednesday, with juror 11's input (equaling a mistrial on most counts). It is also true that I told the jury that if I did not get an answer to my question from the court, I would be forced to take my grievance to the media immediately afterwards. We had no idea of what had transpired in court as a result of my question, but you begin to feel neglected after almost 24 hours of silence.
All of the other 10 jurors were relieved that juror 11 was excused, and most of them personally thanked me for doing what I did (even though I upset them in the process).
Starting anew was filled with trepidation by the remaining 11 jurors, because we didn't want to allow any whiff of prior deliberations to influence our new juror. This was all about her, frankly. We let her purge her feelings, as we all had the opportunity to do, and we let her direct the review of evidence. To her credit, she was fairly focused on getting her thoughts communicated quickly and purposefully so that time was not lost. The rapidity of her pace caused us to caution her, slow her a bit, but she was very business-like. It was clear that by 11:00 a.m., our new juror had resolved any questions regarding counts 1 and 2. She was relieved, and perhaps a bit surprised, that there was unanimity on these points.
While we had a robust process for counts 4 and 5, we had reached a point of impasse by 2:00. There were no throw away words expressed on this day. The extremes we felt pressed into really crystallized our purpose, even if we had to go through the essential elements again, and it made for a swift process.
Before we sent our final word to the court, I asked our new juror if she could explain why this process was so fast, to which she replied confidently and affirmatively. She's a sharp lady and can handle herself, I think.
Q. Wondered if there were turning points or particular moments in the trial that stuck out for jurors in helping the jury reach the not guilty pleas.
A. Turning points? Let me begin by speaking for myself before I attempt to recall those of others. I expected there to be a witness to the January 2nd meeting at Ye Olde Castle before the protest/rally that would confirm the prosecution's assertion of intent to impede, and the absence of such evidence became a seed of doubt that grew. I expected that there must be proof of conspiracy between Ammon and Ryan Payne (most logical link, owing to their initial visit to the Hammond's place in early November) but he wasn't even called for either side, nor were there any phone calls, emails, etc. that would demonstrate agreement here. These two major holes in the evidence record proved to cause insurmountable doubt for me.
Others said that, while the evidence record was not adequate, certain moments turned them. One said they did a full 180 degree turn when they realized there were six informants that went unnamed on the refuge during the occupation, and the choice of the prosecution to allow that much room for mysterious influence there (remember Fabio?) was decisive. One said that the doctrine of adverse possession seemed to govern every thought, word, and deed of the 'leadership' such that it could not be deemed intent to impede federal workers. Another said that the repeated objections to the reading of the constitution became a wedge issue for them. Those turning points are the most distinct ones I can remember, and so I'll leave it there.
Q. What about counts 4 and 5? What was the thinking with those? (Count 4 was a property theft charge against defendant Kennth Medenbach for driving a refuge truck to the Safeway in Burns and Count 5 was a property theft charge against Ryan Bundy for helping to remove FBI surveillance cameras from two utility poles near the refuge.)
A. With count four, we were split for a good while and it didn't look like we could agree. Because this law requires us to consider intent, one of the jurors pressed hard on the issue of what Medenbach was thinking (adverse possession: he believed it was no longer a refuge truck). The video/audio evidence of his arrest was instructive, confirming a mindset. Some jurors were impressed by the surprise Medenbach expressed to the state police officer when told that the rig was reported as stolen. Another said if he had been caught with it while not doing 'resource center' business, so to speak, then it would have demonstrated his intent was not consistent with the claim. Eventually, none of us could imagine he was not going to return the vehicle to the refuge.
Count five plagued us most of the day. We had to table the discussion a couple times because the contentions over the wording of the law as it relates to 'knowingly stole' proved to be a major hang up for one juror. There were many different definitions of 'stole' at play in the minds of several jurors. In the morning, 11 out of 12 were prepared to vote guilty, but after simmering and revisiting the debate a few times, the number of votes for not guilty grew to three. A couple of jurors came to believe that having the media present, offering back the cameras to the F.B.I., and taking steps to safeguard them after removal was proof of something other than theft. The majority could not deny that the intent to deprive was clearly present in Ryan. Since we were moving the opposite way of consensus and three jurors were resolved to vote not guilty, we agreed to end deliberations.
Q. What did you and others think of Ammon Bundy's testimony?
A. It was clear that there was no juror who received Ammon's testimony as fully honest, and several who felt manipulated. Even those who felt he was sincere in his beliefs found examples of inconsistency in his testimony.
The continual objections to Ammon's answers (usually owing to his own misleading phrasing that was disallowed) became tedious to myself, especially since altering one word would make the answer acceptable (and often did). The emotional appeals riddled throughout, while understandable as a tactic, also became tiresome to me since our feelings as jurors are irrelevant after all. And I don't think it was endearing to us jurors for him to characterize the entire federal court system, of which we were a key part of, as rigged against himself.
A few outstanding things Ammon testified to stood out to me. There apparently were multiple attempts to meet personally with the F.B.I. by Ammon and yet no face-to-face meet up ever occurred, presumably because the bureau did not wish to have that sort of negotiation. And the lack of law enforcement/engagement throughout the occupation, coupled with the visits to the refuge by many politicians, caused me to see how occupiers could view their presence as something other than illegal. Also, after watching an edited version of KATU's Steve Dunn interview with Ammon at the refuge (this was played for the jury by Ammon Bundy's lawyer), there seemed to be consistency of message/belief that I did not expect -- especially if you have 9 months to ponder your defense, even I might alter my emphasis or eliminate something unfavorable. Because of the law's wording, Ammon's state of mind weighed heavily.
Q. Why do you wish to remain anonymous?
A: Because I'd rather not encounter any of the angry commenters on your articles, I prefer to remain simply as Juror 4. I read on twitter that Matt Schindler (one of the defense attorneys) is receiving threats, which is very troubling to me.
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian
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