Malheur Frustration

REUTERS/Jim Urquhart/Files

Jim Huffman Dean Emeritus, Lewis & Clark Law School
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The jurors in the Malheur Wildlife Refuge occupation case have found Ammon Bundy and the other defendants not guilty.  Surprise seems to be the almost universal reaction.  After all, there is no question that the defendants occupied the refuge headquarters, that they were armed, that they damaged federal property, and that the federal workers were unable to do their work for a month and a half.  There is also little question that the defendants’ claims with respect to the legal legitimacy of federal ownership of the refuge are without serious merit.  So why did the jurors conclude that they were not guilty?

Some observers say that the federal prosecutors were overconfident and failed to make their case as well as they could have.  Others credit the defense lawyers, even though some of the defendants represented themselves, and the judge, for allowing the defendants to express what was in their minds during the occupation.  And some legal experts have suggested that the government overreached in the charges brought against the defendants.

But there is another sort of overreaching that may well help explain the not guilty verdict – the same overreaching that helps to explain Donald Trump’s appeal to a significant segment of the American electorate.  One juror told The Oregonian newspaper that “[t]he air of triumphalism that the prosecution brought was not lost on any of us . . . .”  Like the voters who support Trump, notwithstanding his many and serious flaws, the jurors in the Malheur case could have found themselves with an opportunity to stick their thumbs into the eyes of an overreaching federal government. Even the urban jurors could sympathize with the sense of disenfranchisement experienced by many rural citizens and expressed by the clumsy, if threatening, protests of the Malheur defendants.

There is nothing to suggest that any of the jurors held a brief for the public lands claims of the defendants. The jurors hailed from various parts of the state, including several from the Portland metropolitan area.  As best 12 people can, the jurors appear to have represented a random sampling of Oregon’s population – just as a jury should in a democracy.

The defendants were charged with the crime of conspiring to prevent federal employees from doing their work.  The judge, an experienced and fair-minded jurist, properly instructed the jurors that a guilty verdict required a finding that the defendants intended that result.  While obstructing the work of refuge employees was the inevitable consequence of the occupation, the jurors concluded that the defendants’ intentions were something different altogether.

During the trial, jurors heard at length about the defendants’ frustrations with the federal government.  It is not unreasonable to assume that at least some of the jurors had experienced similar frustrations in their lives.  The defendants said their intention was to object to perceived federal overreach in the rural west.  Without defending their clearly illegal methods, jurors might sympathize with those frustrations.

The jury room of a criminal court may not be the best place for the venting of populist frustrations.  But people in an ever more regulated society will take their opportunities for influence wherever they can get them.  There is fear among some public officials in western states that the Malheur verdict will encourage others to resort to similar sorts of protests.  Perhaps.  But whatever the Malheur jurors may have had in mind, what should concern all Americans and both political parties far more is that millions of Americans harbor similar frustrations that will not disappear with the likely defeat of Donald Trump in the upcoming election.