PORTLAND, Ore. (CN) — There will be room after all for spectators to observe the inevitable antics in the months-long trial over the occupation of the Malheur National Wildlife Refuge, a federal judge assured the militants on Wednesday.
Judge Anna J. Brown had initially said it would be impossible to fit all 26 indicted defendants in a courtroom with their lawyers, the U.S. attorneys, legal assistants for both sides and boxes of evidence containing the four terabytes of discovery the government estimates it has so far collected.
But that was before occupation leader Ammon Bundy argued that he had a constitutional right to be tried in public, and Brown signaled her sympathy with that claim.
"I'm working very hard to see if we can have a smaller footprint," Brown said, assuring the defendants that there would be room at trial for at least the back row of benches, since they are bolted to the wall.
Wednesday's hearing at the Mark O. Hatfield Courthouse included the dramatic moments that have become the norm in this case. The proceedings began with a recitation of the Lord's Prayer, after which defendant Duane Ehmer said he hoped the prayer "didn't offend anybody."
Defendant Jason Patrick greeted supporters in the gallery by wildly waving both hands while wearing a comic grin. And defendant Kenneth Medenbach again questioned Brown on whether she had ever taken an oath of office.
"Mr. Medenbach," Brown said, "we're not going to play these games."
Ryan Bundy, who is representing himself, made a last minute plea to attend Thursday's Ninth Circuit hearing in San Francisco.
Five defendants — Ryan and Ammon Bundy, Ryan Payne, Bryan Cavalier and Blaine Cooper — are challenging the fairness of facing simultaneous charges in Oregon over the occupation of the Malheur National Wildlife Refuge and in Nevada over the 2014 standoff between the government and self-styled "patriots" who sought to prevent the seizure of cows from Cliven Bundy's Bunkerville ranch.
Ryan Bundy insisted that he needed to be at the Ninth Circuit hearing on Thursday morning.
"They requested my presence there, and I haven't waived my right to attend," Bundy told Brown.
Brown denied Bundy's request, saying it wasn't possible to transfer him out of state with less than 24 hours' notice, even if she had the authority to do so.
"I'm not a magician," Brown said.
Bundy and the other 22 defendants left in the case have pleaded not guilty to charges of conspiracy to use threats, intimidation or force to keep a federal employee from doing their job, and possessing firearms in a federal facility during the 41-day occupation.
Three defendants have so far agreed to plea bargains, pleading guilty only to the conspiracy charge.
Brown on Friday dismissed the most serious charge against seven of the occupiers: use of a gun in the commission of a crime of violence. That charge carried a possible life sentence.
Wednesday was Ammon Bundy's first court appearance with his new lawyers. Eugene, Ore.-based attorneys Mike Arnold and Lissa Casey were a ubiquitous presence since they first visited Bundy at the refuge — a visit that made the pair a target of fellow attorneys who questioned their ethics and accused them of soliciting the business of a high-profile client.
Bundy's new lawyers, Marcus Mumford and J. Morgan Philpot, both live in Utah. Philpot, a former Utah state representative, said little at Wednesday's hearing. Mumford drew the ire of Brown, who repeatedly admonished him to do his own homework and quit wasting the court's time with questions that she said should be directed to the U.S. Attorneys' office.
The defendants presented a dozen demands for discovery they said the government had unfairly denied.
U.S. Attorney Ethan Knight has said he has no evidence that the government used national security surveillance methods to intercept the militants' phone calls, emails or other communications.
But at the hearing, defense attorney Amy Baggio said she wanted to know whether the government had used warrantless wiretaps to get an initial heads up that the Jan. 2 protest in Burns, Ore., over the incarceration of ranchers Dwight and Steven Hammond could result in the Malheur occupation.
"The government seemed to know the occupation was a possibility," Baggio said.
Defense attorneys also challenged the admissibility of information from the defendants' Facebook accounts and the FBI databases Guardian and eGuardian, which they said the government used to collect information about activities protected under the First Amendment.
U.S. Attorney Geoffrey Barrow said at Wednesday's hearing that the government had gathered information about the defendants that was readily available on the Internet. But he underlined Knight's claim that there was no warrantless wiretapping.
"The notion that there was some more exotic method of collecting information just isn't accurate," Barrow said.
The defendants also requested information collected during the government investigation of the shooting of fellow militant LaVoy Finicum.
Brown worked her way through each discovery dispute, mostly assigning each one to a specific defense lawyer and government attorney for conferral.
But she took issue with the idea that every bit of the estimated four terabytes of government information must be read in detail by each defendant.
"Whatever the defendants saw or observed is what they saw," Brown said. "The defendants know what they know. In the end, it's not as if the parties don't remember what happened. The question is, what does it mean legally? Was it a legal conspiracy? Or was it, as you've repeatedly assured me, a lawful political protest?"
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