PORTLAND, Ore. (CN) – Prosecutors in the second Oregon refuge standoff trial can’t force a reporter to testify because cross-examination by defense attorneys could expose him to questions about his bias designed to impeach his testimony, a federal judge ruled Friday.
Prosecutors sought to introduce as evidence an interview between Ryan Bundy and John Sepulvado, a former reporter for Oregon Public Broadcasting, that aired one week into the 41-day occupation of the Malheur National Wildlife Refuge. U.S. District Judge Anna J. Brown ruled during the first trial that the recording could only be considered as evidence alongside authenticating testimony from Sepulvado, which the reporter and the news organization successfully fought.
The first trial ended in acquittals for Ammon and Ryan Bundy and their five co-defendants. Fourteen of the original 26 defendants have pleaded guilty, and the government dropped charges against one.
U.S. attorneys renewed the fight over Sepulvado’s interview in the current trial against the four remaining defendants.
At a hearing on Friday, Assistant U.S. Attorney Geoffrey Barrow argued the recording revealed the occupiers’ intent to the prevent refuge employees from working – the heart of the conspiracy charge that the government was unable to prove in the first trial.
Jesse Merrithew, attorney for defendant Jake Ryan, countered that the recording was incomplete because it is only part of the full interview. He said Sepulvado could have edited it to reflect a bias against the occupiers.
Merrithew outlined one way his cross-examination might go.
“I expect Mr. Sepulvado will testify that he did this fairly and accurately,” Merrithew said. “At which point I’m going to cross-examine him about his bias. If he doesn’t admit bias, I will introduce into evidence Mr. Sepulvado’s public tweets on the issue of the Malheur occupation.”
In his tweets, Merrithew said Sepulvado called the Bundys and the other defendants “thugs” and “expressed extreme disappointment at the outcome of the first trial.”
Sepulvado, who was listening to the hearing on a conference call and live-tweeting the entire time, immediately tweeted that he had also called Ammon Bundy a “dipshit – a position I stand behind.”
Duane Bosworth, attorney for Sepulvado and OPB, told Judge Brown that there was no way for the prosecution to ask its questions without violating Sepulvado’s ability to gather the news.
“I cannot understand how the government’s questions won’t set the stage for a cross-examination that won’t be a massive invasion frankly of the news-gathering abilities of OPB,” Bosworth told Brown.
The American Civil Liberties Union of Oregon and the Reporters Committee for Freedom of the Press filed amicus briefs on behalf of Sepulvado and OPB.
Barrow countered that the law should treat reporters no differently than any other citizen when it comes to testifying to a crime.
“The fact that a reporter is an eyewitness to a crime – the search for truth in a criminal trial should outweigh any other concerns about privilege,” Barrow said. “I certainly don’t see why asking a reporter if their published work was accurate – which is of course the cornerstone of what reporters say all the time, that the information they are reporting is the truth – violates any privilege.”
Brown didn’t find that persuasive. She granted OPB’s motion to quash the subpoena, saying there was no way for Sepulvado to answer the government’s questions without violating his constitutional privilege as a reporter.
“I don’t know how Mr. Sepulvado could be compelled to answer without getting into his mental process as a reporter and the editorial decisions at OPB,” Brown said. “And if under cross-examination we got into the notion of his bias, then I don’t know how those questions could be asked of him without interrupting his privilege.”
Brown said she would still consider introducing the edited interview, perhaps alongside authenticating testimony from Ryan Bundy, who is currently on trial in Nevada on charges stemming from the 2014 standoff with the Bureau of Land Management at his father’s ranch.