A federal appellate panel on Thursday affirmed the convictions and sentences of Malheur National Wildlife Refuge occupiers Jason Patrick, Duane Ehmer, Darryl Thorn and Jake Ryan.
At the same time, the three-judge panel found U.S. District Judge Anna Brown improperly excused some of the prospective jurors for cause without input from the defendants and their lawyers -- though the appeals judges said the issue wasn’t enough to reverse the verdicts.
The 9th U.S. Circuit Court of Appeals panel also found that Brown erred in blocking the defendants’ lawyers from access to some sealed material and ordered at least one document to be unsealed and that the district court reconsider unsealing other material.
The four men were convicted during a second trial stemming from the January 2016 armed takeover of the national wildlife refuge outside Burns in southeastern Oregon.
A jury found Patrick, described by prosecutors as one of the organizers of the occupation, and Thorn, who worked on security details, guilty of conspiring to prevent federal workers from doing their jobs at the refuge through intimidation, threat or force. The other two men on trial, Ehmer and Ryan, were found not guilty of that charge.
The jury, though, found both Ehmer and Ryan guilty of willfully damaging the refuge by using a refuge excavator to dig two deep trenches.
Brown separately convicted Patrick of trespass, tampering with vehicles and equipment and destruction or removal of property, all misdemeanors.
In the 160-page opinion, the 9th Circuit panel wrote that Brown “went well beyond” allowable administrative screening in determining a juror’s potential bias based only on their written comments to lengthy questionnaires about the specific case, and without input from the defendants and their lawyers.
Even so, the panel’s review of the juror questionnaires in the case showed that a handful of prospective jurors identified by the defendants met criteria for exclusion, and there was no “prejudicial impingement on the right to counsel or due process.”
Nonetheless, the panel made it clear it didn’t endorse what Brown did.
Brown had told the parties in the case that she intended to act on her own and excuse potential jurors based on “hardship,” for a school conflict, medical or caretaker reason, for example, or grant deferrals to those who sought postponements of their jury duty, according to the panel’s ruling.
Brown then said she also would give the parties a chance to consider “for cause” challenges of a particular juror, typically done for potential bias, but then went ahead and excused some jurors for cause on her own based solely on the questionnaires, the panel found.
In a January 2017 email to the defendants’ lawyers and prosecutors, Brown wrote that she had excused, deferred or disqualified 430 of the 1,000 people in the juror pool.
“The reasons range from hardships arising from the expected length of trial or winter driving conditions, familiarity with the case producing strong opinions in favor [of] or against one party or another, financial hardship … inability to be absent from work for an extended period, medical/age/caregiver hardships, preplanned and purchased travel, and language issues,” Brown wrote in the email.
While prescreening potential jurors and excusing people “for hardship” is an administrative task that can be done by the court without the parties’ participation, Brown’s excusing of some jurors went beyond that, according to the ruling.
“The district court’s case-specific excusal of particular jurors for cause constituted a ‘critical stage’ of the proceedings with respect to which, at the very least, Appellants had the right to counsel and the right to be heard,” 9th Circuit Judge Daniel P. Collins wrote in the opinion.
The panel rejected the government’s contention that the Jury Selection and Service Act and the District of Oregon’s Juror Management Plan specifically authorized Brown’s actions.
“That is wrong, because nothing in the Act or in the Plan authorized the district court’s actions here,” the opinion said.
The appellate panel was asked to review Brown’s exclusion of nine prospective jurors, based on their completed questionnaire forms and notes jotted down on them by Brown.
“Our review of those questionnaires here leads us to conclude that none of the challenged excusals were improper,” Collins wrote. One of the jurors excluded, for example, said her husband was a member of a SWAT team that responded to the refuge occupation. Four others expressed strong opinions about the case on their questionnaires and declared that they could not be impartial. Another acknowledged he had researched the case on the Internet for 90 minutes before completing the questionnaire.
“It follows … that the district court’s failure to consult with counsel or the parties in advance did not make any difference,” the opinion said.
But that wasn’t the panel’s last word on the matter.
“It should nonetheless be clear from our discussion that we cannot and do not endorse what the district court did here,” Collins wrote. “To make case-specific excusals of prospective jurors for cause without having first obtained the input of the parties and counsel is improper and unnecessarily risks injecting reversible error into the proceedings. We do not expect to be confronted with such a practice ever again.’’
Ninth Circuit Judge Marsha S. Berzon came to the same conclusion but from a different analysis and issued her own partial opinion. “Defendants do not identify any pattern to the challenged for-cause excusals that skewed the empaneled jury (or the jury venire) along racial, ethnic, gender lines or any other proscribed criterion,” Berzon wrote. “Under our case law, the erroneous excusals were therefore harmless.”
The panel also rejected the defendants’ argument that they were entitled to a jury trial even if prosecuted on misdemeanor charges that were classified as “petty offenses.”
The appellate court affirmed Ryan’s misdemeanor conviction for knowingly trespassing on the refuge, Ryan’s and Ehmer’s misdemeanor convictions for knowingly using, without authorization, an excavator that was the property of the federal government and Patrick’s misdemeanor conviction for knowingly entering and starting, without authorization, an all-terrain vehicle that was government property.
The panel also upheld the jury’s guilty verdicts on the felony counts: Patrick’s and Thorn’s convictions for conspiring to impede a federal employee and Ryan’s and Ehmer’s convictions for depredation of government property.
Patrick was sentenced to a year and nine months in prison, and Thorn to a year and six months in prison.
Ehmer and Ryan were both sentenced to one year and one day, and neither contested their sentences on appeal.
-- Maxine Bernstein
Email mbernstein@oregonian.com; 503-221-8212
Follow on Twitter @maxoregonian
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