Burns Chronicles No 46 – Words from the Poor Losers #2

Burns Chronicles No 46
Words from the Poor Losers #2

Gary Hunt
Outpost of Freedom
December 13, 2016

Shortly after the verdict in the first Oregon Conspiracy trial, I wrote Words from the Poor Losers.  It was based upon statements made by government ‘officials’ who were upset over the verdicts of not guilty on all but one count one of the defendants.

That article laid out the government’s response to the verdict from the United States Attorney’s Office, Oregon Governor Kate Brown, Harney County Sheriff Dave Ward, and the U.S. Fish & Wildlife Service.

On December 6, 2016, Defendant Jason Patrick filed “DEFENDANT’S MOTION TO DISMISS SUPERSEDING INDICTMENT: PROSECUTORIAL MISCONDUCT – PREJUDICIAL EXTRAJUDICIAL STATEMENTS” and his “MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS SUPERSEDING INDICTMENT“.  On the same day, Jason also filed another motion and memorandum, though the government has yet to respond.  That second motion, then, will be addressed when the government decides to answer it.

Rather surprisingly, as far as the first motion, the government filed their “GOVERNMENT’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISS SUPERSEDING INDICTMENT” just six days later, on December 12.

So, first, let’s look at what Jason said in his motion.  He “moves the Court for an Order dismissing the Superseding Indictment herein by and for the grounds that the United States Government by and through The United States Attorney, and other Executive Agencies have made public statements disparaging the jury’s acquittal of the first seven defendants tried herein while a second trial of the remaining defendants was pending.”

In his Memorandum, he cites:

United States Attorney for the District of Oregon, Billy J. Williams, October 27, 2016:
“While we had hoped for a different outcome, we respect the verdict of the jury and thank them for their dedicated service during this long and difficult trial.”

The suggestion of “hope” seems to go beyond the pursuit of justice.  If there was to be “hope”, it should be that the outcome of the trial would serve justice, not their hopes or desires.  Then, they condescend with their “respect” and thanks.

Greg Bretzing, Special Agent in Charge of the FBI in Oregon, October 27, 2016.
“We believe now – as we did then – that protecting and defending this nation through rigorous obedience to the U.S. Constitution is our most important responsibility.  Although we are extremely disappointed in the verdict, we respect the court and the role of the jury in the American judicial system.”

If “rigorous obedience” to the Constitution is what Bretzing means, then should he respect the verdict of the jury as being a “rigorous obedience” to that Constitution?  If so, why should he be “disappointed in the verdict”?  Shouldn’t he be pleased that justice has been served?

Tweet from U.S. Secretary of the Interior Sally Jewell, October 28, 2016.
Respect the court, but deeply disappointed in Malheur verdicts.  Safety of employees remains the top priority.  S J.

Now, Sally Jewell doesn’t seem to respect the jury, only the “court”.  And we have seen just how that Court, under the rule of Judge Anna Brown, has done all within her power to obstruct the defense while favoring the prosecution.  It seems that there is no respect for the jury, because it would be difficult to respect someone who had “disappointed” you.

So, we see that the federal officials who have voiced their displeasure seem to view the entire judicial process as a personal vendetta against those they choose to prosecute.  It is no longer a matter of justice, because the vindictiveness of those officials shows through like a sore thumb, or, rather, a poor loser.


Jason goes on to cite the fact that those statements were prejudicial; that any new jury for the tentatively scheduled February 14, 2017, trial will perceive that the government knows best, since they had been rather negative (to be kind) about the role the jury played in the September trial.  Will that affect their deliberations – nor wanting to suffer such disappointment, should they, too, find for the Defendants?

He continues by explaining that the statements referred to are a violation of:

28 C.F.R. § 50.2 (5).  Furthermore the regulations recognize that some forms of public information serve little legitimate purpose and are inherently prejudicial, providing the release of certain types of information generally tends to create dangers of prejudice without serving a significant law enforcement function.  Therefore, personnel of the Department should refrain from making available the following:

(v) Statements concerning evidence or argument in the case, whether or not it is anticipated that such evidence or argument will be used at trial.

(vi) Any opinion as to the accused’s guilt, or the possibility of a plea of guilty to the offense charged, or the possibility of a plea to a lesser offense.


ABA Model Rule of Professional Conduct 3.6(a), applicable to defense and prosecution lawyers provides: A lawyer who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.

In addition, we have,

ABA Model Rule of Professional Conduct 3.8(f), applicable only to the prosecution states: except for statements that are necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

Jason also cites some other authorities that can be found in the Memorandum.

Now, let’s look at the Government’s Response.  After revisiting the action at the Malheur National Wildlife Refuge that led to the charge brought in the Indictment (revisiting for effect), they claim innocence with:

“Following the verdicts, the United States Attorney for the District of Oregon, the Special Agent in Charge of the FBI Portland Division, and the United States Secretary of the Department of the Interior released statements.  All three expressed respect for the process and disappointment in the verdicts.  Based on these statements, the remaining defendants now seek an order from this Court dismissing the Indictment in this case on the assumption that these comments were, in fact, somehow inappropriate.  They were not following the verdicts in the first round, it was entirely appropriate for these officials to address issues of public concern.”

Wow!  They manage to get “respect” and “disappointment” in a single sentence.  However, if that is not a contradiction, then it must be a failure to grasp the English language.  Shouldn’t that be a pre-requisite for their respective jobs?

Then, they address “issues of public concern”.  Are they suggesting that their disappointment in the verdicts were of “public concern”?  You would think that the fact that the system implemented by the Constitution having succeeded would be an issue of “public concern”.  However, they suggest that the system failed by their statements.  Now, that, definitely, is an “issue of public concern” – that the poor losers are seeking public sympathy for, well, perhaps their failure to do their job.  However, it is more likely that they are so impressed by their positions and prowess that they are really telling the jury that their high expectations of their abilities have come under question, and they want to divert attention from that “horrible” truth.

Then, they argue that 28 C.F.R. § 50.2 (see above) is not mandatory.  Well, neither is a conviction mandatory, though they act as if it should be.  Then, they cite from another provision from § 50.2 that says:

“If a representative of the Department believes that in the interest of the fair administration of justice and the law enforcement process information beyond these guidelines should be released, in a particular case, he shall request the permission of the Attorney General or the Deputy Attorney General to do so.”

However, the Response makes no claim that such procedure was even contemplated, let alone adhered to.

When they get to discussing the ABA Model Rules, they sidestep the issue by saying that:

“No reasonable lawyer would construe disappointment with one verdict as a comment on a co-defendant’s upcoming trial.  Moreover, the comments at issue are not substantially likely to have a prejudicial impact on the impending trial.”

Now, one thing about this case is that, unlike most criminal trials, the principal charge is of “conspiracy”.  However, because of the number of defendants, the Court separated the defendants into two trial groups.  The first trial group was the alleged ringleaders of an alleged conspiracy.  The second trial group is of the alleged followers of the alleged ringleaders of an alleged conspiracy.  So, if the government wants to presume that the ringleaders are innocent of the charges, as per the verdict, and they can be separated from the followers, they must adopt any possible means of getting a conviction of the followers. To do so, the government MUST set out to suggest that the verdict in the ringleader trial was in error, so that any potential juror in the second trial can find beyond a reasonable doubt, that the followers could be guilty where the ringleaders were not.

How else could there be any reason for the following trial, if the ringleader trial led to such a verdict?  Unless, of course, the prosecution can distance themselves from the ringleader verdict by raising doubt as to the legitimacy of that verdict.

Next, the prosecution points out that the defendant and counsel have made statements (implying prejudicial) to the press.  Then they provide link addresses to both an Oregon Public Broadcasting (OPB) article (pdf) dated November 8, 2016, and an OregonLive article (pdf) article dated October 31, 2016.

So, here are some excerpts from the OPB article:

The U.S. Attorney’s office in Oregon has taken a beating since a jury acquitted seven defendants of conspiracy and weapons charges in an armed takeover at a federal wildlife refuge — and government prosecutors still have a long road ahead.

Seven more defendants are set for trial in February in a second high-stakes airing of the same evidence and the same witnesses. Under intense scrutiny after the acquittals, the government now must decide whether it wants to press forward with an almost identical case, make changes or give up entirely.

The U.S. Attorney’s office in Portland declined to comment on the acquittals and the upcoming trial.

Well, Golly, Gee!  The burden appears to be on the prosecution.  It is no wonder that they will use any means to gain an upper-hand in the media to offset the disastrous effort to persecute those additional Defendants.

However, we are looking for something comparable to the deplorable statements made by government officials, so let’s see how the Defendants dealt with the press.  Here is Jason Patrick, as quoted in the article:

“If they came to me with jaywalking and time served, I’d tell them to go to hell. I want to fight. If you fight the government outside of court, they will kill you. But if they invite you into court to fight –  and your fight is right – then fight.

Now, Jason didn’t disagree with the verdict  However, he did say that when you take on Goliath, you take him on either outside of (the risk was abundantly clear, especially when LaVoy Finicum was murdered on the side of Highway 395), or in, court — even though that court is an agency of the same government that is persecuting you.

The only other comment by the Defendant side of the court case was a statement by one of the attorneys:

“Watching the trial, it was clear: This is what they [the Defendants] wanted to do and, to some extent, has the government played into their hands? Are they playing into their hands in trial No. 2?” said Andrew Kohlmetz, an attorney for Jason Patrick.

So, the government’s Response seemed to think that this would demonstrate the justification for their statements of disappointment at the verdict.  Or, maybe, since they simply posted a link to the article, they will assume that the reader, and the Court, will assume that it says what it does not say.

Now, let’s look at the OregonLive article that is also referred to in the government’s Response.  First, we have Lisa Hay, Ryan Payne’s attorney:

“There are serious questions concerning the fairness of continuing to prosecute a conspiracy charge when a jury of 12 citizens unanimously agreed the leaders of the alleged conspiracy are not guilty of it.”

“The jury’s verdict is a clear statement that harsh criminal laws should not be used to suppress free speech and expression of opinion, even if the message may be disagreeable to others.”

Then, we have Andrew Kohlmetz, Jason Patrick’s attorney, in a very profound observation, says,

“Obviously we all feel strongly that if the government really respects the jury’s verdict, they’d dismiss the charges on the remaining defendants. That would be the most practical, economical and fair course of action. It’s clear in my mind the jury considered the government’s claims and rejected them”.

Finally, we have Per C. Olson, David Fry’s attorney coming to a rather obvious conclusion, at least as would appear to a rational person:

“Right now, the ball is with the prosecutors. If I were the prosecution, I would just drop the whole thing. It seems silly to go after the little guys when the leaders have been acquitted.”

This leaves us to consider just why the prosecution wants to proceed, rather than dismiss.  Could it be that the “powers that be”, in Washington, D.C., cannot tolerate free people challenging the edicts of government?  Have the United States Attorneys been told that their future is at stake, if they can’t get at least a few convictions, over this multi-million-dollar prosecution?



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