Full pardons for Dwight and Steven Hammond

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President Trump has granted full pardons for Dwight and Steven Hammond, Oregon ranchers imprisoned for arson on federal land.

The Hammonds pleaded guilty in 2012 to two counts of arson on federal land which, according to mandatory minimum sentencing guidelines, should have resulted in five year prison sentences.  The judge in the case however, decided that a five year sentence would “result in a sentence which is grossly disproportionate to the severity of the offenses here,” and instead sentenced Dwight Hammond to three months in prison and Steven Hammond to one year and one day.

The federal government appealed the sentences.  The Ninth Circuit of Appeals remanded the case back to the Oregon US District Court where the original sentence was overturned and the Hammonds were ordered to return to prison to serve the remainder of a five-year sentence.

The Hammonds’ story gained national attention after Ammon and Ryan Bundy and supporters occupied the Malheur National Wildlife Refuge in Harney County, Oregon  The armed occupation began after a support rally for the Hammonds took place in Burns, Oregon.

The Bundys initially claimed they came to Harney County to protest the Hammonds’ return to federal prison and in fact they had urged Dwight and Steven Hammond not to turn themselves in.  The Hammonds did not support the occupation however, and willingly returned to prison in January 2016.

Oregon Representative Greg Walden (R) recently asked President Trump to pardon the Hammonds.

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Bathroom graffiti inspires juror in J20 trial to “Google jury nullification.”

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Katie Aguilera

On Thursday, May 31, 2018, a juror sent a note to Judge Kimberley Knowles in a Washington D.C. superior court room informing Knowles that she had googled jury nullification after seeing the words “Google jury nullification” written in a bathroom stall at the courthouse.  She googled it, read about it, told the other jurors about it and then informed the judge of her actions.

This trial is the second of many planned for protesters arrested on January 20, 2017 during protests in Washington D.C. in which police officers were injured, windows were broken, and a limousine was destroyed.  Four defendants who allegedly participated in property damage that occurred during the Inauguration Day protests are currently on trial.  They are Michael Basillas, Seth Cadman, Anthony Felice, and Cathseigh Webber.

Six defendants faced felony charges in November 2017 but the jury in that trial acquitted them of all charges December 21, 2017.  In that trial, the prosecution made no effort to prove that the six defendants were guilty of any of the property damage, stating instead that “though there is no evidence the defendants caused any of the damage directly, the government considers the entire group of protesters to be responsible.”

The admission by the juror of googling jury nullification in this current trial comes after several major developments involving all the related cases, which are frequently referred to as the J20 cases.  On May 23, 2018, Chief Judge Robert Morin ruled “that the US Attorney had illegally withheld evidence from protester defendants.”  In what constitutes a Brady violation, the judge agreed with the defense that the prosecution had withheld potentially exculpatory evidence, specifically the fact that a highly questionable video created by Project Veritas and used as evidence against all the accused protesters was heavily edited.

The prosecution had previously declared that there was only very limited editing to hide the identity of the person filming the video and the identity of an undercover officer attending the meeting the video filmed.  However, it was later revealed that there was significant editing to the video, with several important parts having been removed.

According to a motion for sanctions and dismissal filed by the defense in a related trial scheduled to begin June 4, 2018, a portion of video that was edited out actually showed an undercover officer stating, “I was talking with one of the organizers from the IWW [Industrial Workers of the World] and I don’t think they know anything about any of the upper echelon stuff.”  The defense argues the following in that motion:

“This is exculpatory evidence to the defense. The government plans to argue that Mr. Petrohilos and everyone else at that meeting were intending to plan a violent protest. What better exculpatory evidence for the Defense than the words from the person sent to capture a nefarious meeting stating right after the meeting, ‘I don’t think they know anything’. This evidence is clearly exculpatory and but for the Court compelling its production, Defense would have never received it.”

Such Brady violations could arguably be considered cause for a mistrial for these cases but Judge Knowles has opted not to do so in this trial.  Numerous other cases have been dismissed and felony charges against some defendants have been dropped after Judge Morin’s ruling.

On May 31, 2018, Chief Judge Morin also ruled “that the US Attorney had misled him by not admitting the existence of 69 additional pieces of evidence provided by the far-right “entrapment” group Project Veritas” according to Unicorn Riot, an independent website that has covered these cases extensively.

And then came the admission of the bathroom graffiti inspired google search the day before the case went into jury deliberation.  Neither the defense or the prosecution protested this development and the judge proceeded with the scheduled deliberation.  Jury deliberation is expected to continue on Monday, June 4, 2018.

These trials present an interesting opportunity to exercise the right of jury nullification.  As Ryan J. Reilly, Huffington Post senior justice reporter, tweeted on May 31, 2018: “Jury nullification would be particularly powerful in this trial, as government alleges that three of the defendants engaged in some form of destruction. Unlike first case, jurors might want to convict on misdemeanors but not make them felons or expose them to lengthy sentences.”

This is a good reminder that jury nullification has been used in the past to acquit people charged for protest and dissent.  I wrote back in 2016 that “in today’s highly charged climate of political activism against war, police brutality, etcetera, combined with the prevalence of mandatory minimum sentences and increasingly over-reaching laws, the importance of knowing and understanding the right of US jurors to practice jury nullification cannot be understated.  It is critical that US citizens remember that the United States was founded on the principle of government that serves the people. A jury of peers, fully apprised of their rights and responsibilities as jurors, is one of the greatest protections of that principle.”

The importance of these cases should not be ignored.  As I wrote on December 8, 2017, regarding the first J20 trial, “this idea of collective liability is what makes this trial so important, and all Americans should be paying attention.  The mere act of charging so many, with the possibility of such severe punishment, threatens to stifle legitimate protest and first amendment activity.  If exercising one’s right to peacefully protest comes with the risk of felony charges for the criminal behavior of others, many will opt to stay home.”

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Picture courtesy of Pixabay.

Meanwhile, In Yemen…

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Katie Aguilera

It is being reported that at least 33 people have been killed in Yemen as the result of Saudi-led coalition strikes that hit a wedding on Sunday, April 22, 2018.  This comes just days after 20 civilians were killed when the vehicle they were traveling in was hit by another Saudi-led coalition airstrike.

But that’s okay, it wasn’t chemical-laden weapons that killed these civilians.  These were weapons likely sold to the Saudis by the US and the UK.  So don’t worry about it when Reuters reports:

“The head of Al Jumhouri hospital in Hajjah told Reuters by telephone that the hospital had received 40 bodies, most of them torn to pieces, and that 46 people had been injured, including 30 children, in air strikes that hit a wedding gathering.”

Or this:

“The attack hit a car transporting 20 passengers south of Taiz province, locals told Reuters. Six bodies had been identified but the rest were charred beyond recognition, they added.”

Let’s just continue to allow the US and UK to sell Saudi Arabia weapons.  Let’s continue to refuel their warplanes so they can keep dropping those bombs.  I mean, just think of the profits.  And, let’s continue to help the Saudi-led coalition select its targets because clearly that’s working.

Don’t worry that the United Nations Secretary General Antonio Guterras has stated that Yemen is the world’s worst humanitarian crisis.  “As the conflict enters its fourth year, more than 22 million people—three quarters of the population—need humanitarian aid and protection.”  Don’t worry about the starvation, the cholera and diarrhea, the six children under the age of five that die from preventable causes every hour.  Just don’t pay any attention at all to what Gutteras has to say.

“Civilians have been facing indiscriminate attacks, bombing, snipers, unexploded ordnance, cross-fire, kidnapping, rape and arbitrary detention.”

But that’s okay.  It’s our ally committing many of these atrocities after all.  So, don’t worry about it.

Image courtesy of pixabay.com

 

Defense files motion requesting the exclusion of expert reports and testimony in Astarita case

Katie Aguilera

Lawyers for FBI agent W. Joseph Astarita have filed a motion to exclude the expert reports and testimony of several witnesses for the prosecution in Astarita’s case.  Astarita is accused of firing two shots at Robert ‘LaVoy’ Finicum on January 26, 2016 and subsequently lying about it.   The two shots did not hit Finicum, but one struck the roof of Finicum’s truck.

The shooting occurred at a road block set up to stop and arrest leaders of the occupation of the Malheur National Wildlife Refuge as they traveled along Highway 395 to John Day, Oregon.  Finicum was shot and killed by Oregon State Police (OSP) officers at the road block after exiting his vehicle and appearing to reach for his pocket.  An investigation of the shooting concluded there were two shots fired during the stop that were unaccounted for.

The prosecution’s case against Astarita relies in large part on the 3D reconstructions and diagrams created by several expert witnesses that concluded only Astarita was in position to fire the two shots that are unaccounted for.

In the defense motion, filed April 4, 2018, it is argued, “because the government has no photographic, video, ballistic, or eyewitness proof that Special Agent Astarita fired his weapon, this assumption [of his firing the two shots] rests entirely on the proposed testimony of the so-called experts.”

The reason no such video exists is because the FBI Hostage Rescue Team requested the OSP officers not wear body cameras during the road block.  OSP officers normally wear body cameras when deployed.  Additionally, the shell casings from the two shots, as well as casings from some of the shots fired by OSP officers, were missing from the scene.

The defense goes on to question the accuracy of the experts’ conclusions, the expertise of the witnesses, and the methods used in their investigations.  It states, “the Court cannot allow experts to present conclusions on such important issues in a criminal trial without ample assurances of reliability.  The government and its purported experts have failed to provide such assurances here…”

Astarita has pleaded not guilty to three counts of making a false statement and two counts of obstruction of justice.  A hearing to determine what experts’ testimony will be allowed in the trial is scheduled for May 21, 2018.

Prosecutors have filed a motion requesting judge to reconsider decision to dismiss with prejudice the charges in Bundy case

Katie Aguilera

On February 7, 2018, federal prosecutors filed a motion requesting that the Court reconsider its orders to dismiss with prejudice the superseding indictment against Cliven, Ryan, and Ammon Bundy, and Ryan Payne.

According to the 29-page motion, “the Court erred when it dismissed the indictment with prejudice on the ground that the Government failed to disclose information that could be used only to support non-cognizable and unsupportable defenses, or arguably rebut three alleged overt acts.”  Additionally, it argues, “to the extent the Court’s dismissal with prejudice is predicated on the materiality of the late-disclosed evidence to defendant’s theories of ‘self-defense, provocation, and intimidation,’ it is in error.  Because these theories are not cognizable on the undisputed facts, they cannot form the basis of a Brady violation.”

The prosecution suggests that rather than dismissing all charges, dismissing the counts related to the Court’s interpretation of Brady violations would be a less drastic remedy.  They argue that the dismissal with prejudice “has major ramifications for all public lands law enforcement officers,” and would “encourage the defendants, their supporters, and the public to disrespect the law and the lawful orders of the courts.”

The case against the Bundys and Ryan Payne ended in a mistrial December 20, 2017, and Judge Gloria Navarro dismissed the case with prejudice on January 8, 2018.

In a separate filing, the prosecution asked to dismiss with prejudice all counts in the superseding indictment against the four remaining defendants facing trial for the April, 2014 Nevada standoff.  Those four are Dave and Mel Bundy, Joseph O’Shaughnessy, and Jason Woods.

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FBI requested no body cameras the night Robert ‘Lavoy’ Finicum was shot and killed

Katie Aguilera

On January 26, 2016, Oregon State Police SWAT and the FBI Hostage Rescue Team (HRT) deployed together for the planned arrest of leaders of the occupation of the Malheur National Wildlife Refuge.  The plan called for an initial traffic stop on Oregon highway 395, with a road block farther down the highway in case either of the two vehicles the leaders were traveling in did not comply at the initial stop.

The driver of the vehicle Ammon Bundy was riding in complied at the initial stop and all occupants were taken into custody.  Robert Lavoy Finicum, who was driving the other vehicle, initially stopped, then, after Ryan Payne got out of the truck, took off towards the road block.  When he reached the road block, Finicum crashed his truck into the snow bank to avoid it.  After he exited his vehicle, Finicum was shot three times by OSP officers.

There have long been rumors that police and FBI involved in the shooting death of Finicum were ordered to turn off dash and body cameras.  It has now been confirmed that these rumors have some basis in fact.

In the investigation into the shooting death of Finicum, investigators determined that there were two shots fired that were unaccounted for.  FBI HRT operator W. Joseph Astarita has since been charged with lying about firing his rifle twice at Finicum at the road block.  Astarita has requested the charges be dismissed.

According to court documents filed February 2, 2018 by the prosecution in response to W. Joseph Astarita’s motion to dismiss the charges against him, Oregon State Police (OSP) officers, at the request of the FBI, did not wear body cameras on January 26, 2016 during the attempt to arrest occupation leaders.

A footnote in the 32-page response states:

“OSP SWAT troopers are ordinarily required to wear body cameras while deployed.  However, they did not wear the cameras while deployed with HRT–at HRT’s request.”

After the two shots that were unaccounted for were discovered, and it was also discovered that shell casings from those two shots as well as some of the shots fired by OSP officers were missing, a new investigation of the FBI HRT operators involved was opened.  The FBI operators were interviewed for a second time by OSP detectives, as described by the prosecution’s response to Astarita’s dismissal motion.

According to the document, “on February 6, 2016, two OSP detectives re-interviewed defendant, [Astarita], B.M., [Astarita’s immediate supervisor] and the HRT operative who was nearly struck by Finicum’s truck at the roadblock.  By then, the detectives knew that there were unaccounted-for shots and missing shell casings.  The HRT operators knew it as well. The HRT operators set conditions for the interview.  They were only willing to be interviewed if:  1) they were interviewed as a group, not individually; 2) the interview was not recorded; and 3) their lawyer could be present by speakerphone.  In addition, they would not answer any questions previously asked without being able to reference statements from prior interviews.” (Emphasis mine).

The response also argues that though Astarita has claimed he didn’t speak at this second interview, the OSP detectives have stated that he did.  The document states, “he spoke less than others who were present, and considerably less than he did during the first interview.  He did nothing to correct statements made on his behalf…These sorts of factual disagreements can only be resolved at trial, not in a pretrial motion to dismiss.”

It is inexplicable that the FBI would request that no body cameras be used during the arrest attempt, and it is also odd that OSP agreed to the request.  This only serves to raise suspicion as to the intentions of the officers involved.  The reasons behind this decision need to be made clear.

That a member of any law enforcement agency would lie about, and actively work to cover up, shots fired during an arrest attempt harms the credibility of, and trust in, all law enforcement.  Although it comes as no surprise that the FBI would attempt to cover up the shooting as they have a track record of such activity, when something like this happens, they must be held accountable.

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Family of Robert “Lavoy” Finicum files wrongful death lawsuit

Katie Aguilera

Two years after Robert “Lavoy” Finicum was shot and killed by Oregon State Police officers on Highway 395 in Harney County on January 26, 2016, the Finicum family has filed a wrongful death lawsuit against a slew of defendants.  These include the United States, FBI, BLM, Oregon State Police, Harney County, a number of officials from those agencies, the Center for Biological Diversity, and 100 ‘John Does,’ among others.

The lawsuit was filed Friday, January 26, 2018 by lawyers Lisa Ludwig and J. Morgan Philpot in US District court in Pendleton, Oregon.

The 48-page complaint states, “the murder of LaVoy was plainly unlawful under rights guaranteed by the United States Constitution and also…unlawful under other laws of the United States and the laws of the State of Oregon.  It was the result of a brutally deliberate course of action willfully set in place and caused by a small selection of county, state, and federal officials who are named as defendants in this lawsuit.  These defendants were mentally predisposed and committed to using excessive lethal force, to solve a political dispute.”

It goes on to describe the events that led to the shooting of Finicum on January 26, 2016, beginning with the Bunkerville, Nevada standoff in April, 2014.  It claims that Finicum was intentionally targeted because of his association with Cliven Bundy and family, his membership in the Church of Latter-day Saints, and his “political views and statements regarding land rights and federal government overreach—specifically, his consistent political activism and statements that were critical of the BLM.”

The complaint claims that law enforcement and the BLM deliberately mischaracterized Finicum as being a threat to law enforcement and government employees by willfully participating in the “spreading of false and maliciously inaccurate information.”  It goes on to state the BLM and FBI kept an active file on Finicum, and that “Defendant Love [Former BLM employee, Daniel P. Love] and other John Doe defendants fabricated information, edited, omitted, or reported misleading information from this file, and added misleading information to this file, for the purpose of intentionally creating the false impression that LaVoy Finicum was associated with militia and presented a risk of violence to law enforcement…”

This misinformation, according to the lawsuit, “contributed directly to the subsequent shooting death of LaVoy Finicum.”

Also in the complaint are details about the January 2, 2016 occupation of the Malheur National Wildlife Refuge in Harney County, Oregon by Finicum and others.  It states a meeting took place on January 2, 2016, between Ammon Bundy and others, discussing Bundy’s plan to move the protest to the Refuge in an attempt at “adverse possession.”  According to the complaint, this meeting was openly attended by a Harney County deputy sheriff.

The complaint alleges that the defendants worked to control the narrative in order to keep the adverse possession claim out of public discourse.  It states, “these defendants ignored legal advice and counsel that suggested that the appropriate course of action would be legal notice and possible trespass charge—by local law enforcement and local civil court actions.  These same defendants also ignored advice from local legal authorities, that no law had been broken by the attempted adverse possession.”

“Instead, Defendants…willfully decided to fight a public political battle, and demanded that the FBI, BLM, and DOJ take the lead and bring the occupation to a close by force.”

It goes on to point out that there were never any eviction notices or complaints of trespass during the occupation of the Refuge.  Also, that as of January 26, 2016, “there was no criminal complaint, no probable cause affidavit, no federal indictments, or any other formal proceeding to inform—let alone argue—that LaVoy Finicum or any other occupier was being accused of breaking the law.”  This includes the time of the initial January 26, 2016 traffic stop and subsequent roadblock, where Finicum was shot and killed.

The lawsuit claims that Oregon State Police and FBI agents executed a “deadman’s roadblock” in violation of police procedure and the Constitution on January 26, 2016.  It states, “the roadblock had been strategically placed so as to prevent it from being visible until impact was a near certainty for any vehicle traveling at posted speeds.”

The complaint also discusses the actions of FBI agent W. Joseph Astarita during the roadblock, who is currently facing charges for his alleged attempt to cover up the fact that he allegedly fired his weapon twice after Finicum crashed into the snowbank to avoid the roadblock.  It claims that one of these shots resulted in the wounding of Ryan Bundy, who still has a piece of metal in his shoulder that may or may not be a bullet or bullet fragment.

The shooting of Lavoy Finicum was ruled as justified by Oregon officials.  The officers involved stated that Finicum was reaching into his jacket pocket which they say they later found held a loaded pistol.  Video of the shooting shows Finicum exit his truck with his arms up, however, as he moves away from the truck he drops his arms twice, and before he is shot three times, he appears to reach for his side.

Early in the occupation of the Refuge, in an interview, Finicum had said, “I’m not going to end up in prison.  I would rather die than be caged.  And I’ve lived a good life.”

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