Held to answer

Ladies and gentlemen of the Bundy jury, thank you for a lesson in what progressive justice looks like.

The not-guilty verdict for the six armed men and one woman, who took over the Malheur National Wildlife Refuge headquarters for 41 days, left those who normally preach forgiveness and restorative justice looking for a suitable villain. They turned to a couple of old favorites: race and prosecutorial error.

According to this thinking, the Bundy gang got off because they were white, and the jurors were white. Or, the Bundy gang got off because the prosecutors filed the wrong charges.

Would having at least one black man or woman on the jury have helped? Not if that black man or woman held a bias against police or prosecutors.

Had the Bundy gang been black, would a white jury have been more likely to convict? Possibly, but had a black Bundy gang been convicted, the streets would be filled with protesters screaming discrimination and demanding the right of black men with guns to take over a government facility.

Had the prosecutors filed lesser charges – criminal trespass instead of conspiracy – would the jurors have delivered a guilty verdict? Possibly, and then the same people who are now raising race as an issue would question whether the prosecutors would have filed more serious charges – leading to longer sentences – had the defendants been black.

People see what they want to see in this verdict.

What I see is a criminal justice system continuing to be weakened by the public’s hypocritical demands.

A decisive factor in the Bundy acquittal was when Juror No. 4, a college student at Marylhurst University, complained about Juror No. 11, a corrections officer, who spent his college summers working as a firefighter for the U.S. Bureau of Land Management (BLM) – the same agency who oversees the Malheur wildlife refuge.

During jury negotiations, Juror No. 4 sent a note to the judge complaining that Juror No. 11 was biased because he had worked for BLM. Judge Anna Brown replaced Juror No. 11 with a woman who worked as a legal assistant for the state public defender’s office.

Within five hours of replacing the corrections officer with the public defender’s employee, the jury reached a verdict of not guilty.

“Prosecutors reportedly shit their pants in unison.”

That comment in Willamette Week, an alternative weekly in Portland, has so far received more thumbs-up than any other on its story of the Bundy gang’s acquittal.

Public comments on a news website are a poor man’s poll, but they can reveal what people think in a way that raw numbers do not.

There is glee in that comment.

It reminds me of the cheers I heard Sept. 28th at Cerimon House in northeast Portland, which hosted a performance called “Within These Walls: An Evening About Solitary Confinement.” The performance was an hour of dance, poetry, music and video on the cruelty of solitary confinement. It was followed by a discussion on what criminal defense attorney David Menschel called the “moral awakening” in America.

Among those joining in the conversation were Oregon state Rep. Jennifer Williamson (D-Portland), a couple of prison chaplains, a Department of Corrections captain and Bobbin Singh of the Oregon Justice Resource Center, who moderated the discussion (and whose organization isn’t as neutral as it sounds; it’s pro-defense and anti-prosecution).

At the urging of Singh, Menschel talked about how District Attorneys across the U.S. are being forced out of office. He mentioned Anita Alvarez, the D.A. in Chicago.

“She sent hundreds of black and (Latino) kids to life. … they trounced her.”

The audience roared with approval when Menschel shouted: “The DAs in Oregon are appallingly bad!”

This took place the same week that a group of women in Portland were screaming for the arrest and prosecution of Joel Magid, a musician who described on Facebook how he sexually assaulted a woman.

Whom do these women think will prosecute the Joel Magids of this world? Certainly not criminal defense attorneys.

Some of the women accused police and prosecutors of not taking their accusations seriously, of reducing rape to “he said/she said.” These women could learn something from the Bundy trial. Prosecutors need evidence beyond accusations.

Even with all the video of the Bundy gang’s criminal acts, they were acquitted. Even some of the defense attorneys appeared shocked. One of the defendants, Ken Medenbach, was charged with theft of a government vehicle. His attorney, Matthew Schindler, seemed astonished that his client wasn’t convicted.

“My client was arrested in a government truck, and he was acquitted of taking that truck,” said Schindler.

Maybe this is part of the “moral awakening” that defense attorneys Menschel and Singh were celebrating at Portland’s Cerimon House. State Rep. Williamson agreed with them that America is turning a corner in criminal justice reform. She has made it clear that she intends to continue fighting against Measure 11, which sets minimum-mandatory sentences for violent crimes.

They have reason to be confident.

America’s vaunted free press has been unrelenting in its coverage of “exonerated” felons, some of them as guilty as the Bundy gang. The media provide a platform for nonprofit social justice organizations such as the Vera Institute, the Marshall Project, the Soros Foundation, the Pew Charitable Trusts on Public Safety Performance, and the Partnership for Safety and Justice. Representatives from these groups are sought by the media as experts on criminal justice, and they have turned criminal justice upside down. Felons and prison inmates are cast as victims.

In the case against Ammon and Ryan Bundy and the others, prosecutors relied on testimony from law enforcement officers – local and federal.

“At the end of the day, there is an element of common sense that demonstrates the guilt of these defendants,” Assistant U.S. Attorney Ethan Knight said in his closing arguments.

Here again, the world is changing. Common sense isn’t what it used to be.

The day before the verdicts were announced, the Citizen Review Committee, one of Portland’s police-oversight groups, met at the request of police administrators to revisit a previous decision made by the committee, which found that two officers had engaged in “unprofessional conduct” when they questioned the competence of a defense attorney.

The case concerned an encounter last year between the two unnamed officers and Sara Foroshani, a criminal defense attorney for the Public Defender’s Office of Marion County.

Portland Police were called to a Goodwill store on report of a woman passed out in a vehicle in the parking lot. Officers found the woman with a needle stuck in her arm and saw drug paraphernalia. The woman came to, and officers started questioning her. Foroshani, who had stopped on her way into the store, was watching, approached the woman and told her she didn’t have to cooperate with police. Foroshani added that she was an attorney.

One of the officers told her to stand back, that she was interfering with a police investigation and could be arrested. When she refused, the officer physically escorted her away. She talked briefly with a man who was a friend of the woman in the car and then entered the store.

Foroshani later returned, and once again told police she was an attorney. During the exchange, one of the officers told her “she must not be a very good attorney,” or she would know search-and-seizure concepts.

According to the second officer, Foroshani started screaming legal advice to the woman who had overdosed. The second officer also told Foroshani she did not understand the motor vehicle exception to search-and-seizure law.

In their revisiting of the case, committee members continued to support Foroshani, zeroing in on the officers’ saying she was not a good attorney. To the committee, this was unprofessional conduct on the part of the cops. To Police Chief Mike Marshman, the committee was sending a message to officers that they shouldn’t engage in conversation.

Lost in the nitpicking was the simple fact it was police who were dispatched to check on the woman passed out in the car – not Foroshani. She was at the Goodwill Store to buy a table. She did interfere with police, and she may in fact not be a very good attorney. The officers could have arrested her but didn’t. She returned the favor by filing a complaint against them.

With the Bundy verdict, law enforcement and federal prosecutors now are being second-guessed. Why didn’t they immediately go in on Day One with arrest warrants and take back the Malheur National Wildlife Refuge? Instead, they let a gang of anti-government thugs seize refuge headquarters for 41 days.

But remember what happened when the takeover finally ended, and law enforcement officers killed LaVoy Finicum, one of the leaders. There were immediate recriminations and second-guesses: Did the cops really have to shoot him?

Now the government must consider what to do next time.

“While we must remain respectful of the jury’s decision, we must also be clear-eyed about the potential impacts of yesterday’s verdict,” BLM Director Neil Kornze said in a prepared statement.

The jury’s verdict in the Bundy case found there was no illegal conspiracy when the defendants took over refuge headquarters and demanded that the federal government surrender control of the land. The jury believed defense attorneys, who argued that the militants did not prevent employees of the Fish and Wildlife Service and the Bureau of Land Management from doing their jobs. Federal workers apparently didn’t have to flee.

What would a professional cop watcher in one of America’s most progressive cities advise in handling a mob of militants?

The same night the Citizen Review Committee was revisiting charges against the two officers, they also discussed the police bureau’s use of “kettling” at a Black Lives Matter die-in protest. This is when officers encircle or corral a large number of protesters and confine them.

Committee member Roberto Rivera thought that was too much of a show of power. He had another idea.

“Seems it would have been a lot better, maybe an officer can do an outreach, shake hands – ‘OK, you can have your die-in. We can wait two hours … then everybody go home.’ … (That’s) a better approach rather than boxing people in.”

Maybe next time the Bundy gang strikes, one of the BLM employees can offer to fetch Ammon Bundy a cup of coffee.

And shake hands.

– Pamela Fitzsimmons