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Militia’s Lawyers Cry Foul|Over Sealed Indictment

PORTLAND, Ore. (CN) - A preliminary hearing for Oregon militia leader Ammon Bundy and his henchmen was waylaid Wednesday when the government told a judge the sealed criminal indictment nixed their rights to the hearing.

The government was scheduled to lay out its evidence against the instigators of the armed occupation at the Malheur National Wildlife Refuge.

But U.S. Attorney Geoffrey Barrow said during the hearing that the government had filed a criminal indictment against the 10 current defendants "and others" under seal.

Currently charged are Ammon Bundy, his brother Ryan Bundy, militia man "Captain" Joe O'Shaughnessy, Bundy's bodyguard Brian "Booda" Cavilier, right wing radio host Pete Santilli, Ryan Payne, Shawna Cox, Jason Patrick, Dylan Anderson and Duane Ehmer.

The defendants themselves were conspicuously absent from the hearing.

Ammon Bundy's attorney Mike Arnold told U.S. Magistrate Judge Janice M. Stewart that Bundy has a right to be present at all court proceedings involving him.

"And there should be an investigation of whether the government kept my client from attending this hearing," Arnold said.

Lisa Hay, attorney for Ryan Payne, said Barrow and fellow U.S. Attorney Ethan Knight told the U.S. Marshals not to bring Bundy and the other defendants to the court. But Knight and Barrow didn't mention that to the defense attorneys, Hay said.

"I thought I was coming here to see my client," Hay told Courthouse News.

She told Stewart, "This certainly makes a mockery of the grand jury process if the U.S. attorneys told the Marshals not to bring our clients to this hearing."

"You might have grounds for a hearing if there was a preliminary hearing to be held today," Stewart told Hay. "There is none."

"The government canceled our clients' presence, from what I understand," Hay told Courthouse News after the hearing. It was a little exercise in government authority to do that. Normally at any proceeding in court, the defendant has the right to be present."

Each of the 10 attorneys present registered their objections to the government's step of preventing their clients from being present at the hearing.

At the hearing, Hay challenged the government's right to file the indictment under seal.

"The government can't seal an indictment if the defendants are under custody," Hay told Stewart. "I don't think the government has any authority to not present the document under which they are being held."

Stewart said, "My understanding is your client is being held under the authority of the criminal complaint."

And Hay replied, "But you're not asking them to give us a copy of the indictment now to show us what they are being held on."

Stewart put the government on notice to release the indictment to the attorneys within 24 hours.

Hay said the unnamed "others" indicted were one potential reason why the government filed under seal.

"There were likely other people included in the indictment that they don't want to reveal yet," Hay said.

Until now, Bundy and his co-defendants have been held under a criminal complaint, which is the sworn statement of a federal officer. A preliminary hearing allows the defense to question that officer under oath.

By filing an indictment, the government avoids the requirement of a preliminary hearing and reduces the amount of information it has to reveal.

"That's where the public gets to hear whether there is truth to those statements or not," Hay said, adding that the government's secret machinations were particularly detrimental in this case.

"Unfortunately, in a case like this, where many people mistrust the government to begin with, that you would begin with our clients not being in court, statements being made against them without them there and for the conspiracy theorists involved, that the government is preventing them from having a public hearing when they were supposed to be able to challenge the assertions. So it's an unfortunate beginning."

Co-defendant Shawna Cox, who was released to home detention in Kanab, Utah, last week just hours after U.S. Magistrate Judge Stacie F. Beckerman said she would remain in jail until the last four militants ended the standoff at the refuge.

Tiffany Harris, attorney for Cox, shed light on Cox's surprise release by telling Stewart that Cox's son-in-law died on Friday.

"She hurried back home to comfort her daughter," Harris said.

On Wednesday, Harris requested that the home of Cox's daughter be added to the list of approved places where Cox can go. Stewart approved that request.

But she denied Harris' request that Cox be allowed to attend the funeral of fellow militant LaVoy Finicum on Friday. Finicum was killed in a shootout with Oregon State Police in a traffic stop that netted the arrest of the Bundy brothers and three co-defendants.

Before the occupation, Cox and Finicum both lived in tiny Kanab, Utah, population 4,468.

"This is a place where everybody knows everybody," Harris said. "My client is asking to essentially step into the church, make condolences to the family and then go home."

The government said that was a no-go.

"Ms. Cox has no right to go where she wants to go," Barrow said. "She is awaiting trial for a serious crime, one where Finicum was a co-defendant. Gathering with the kind of people that will be there would be problematic and create a dangerous situation for the public."

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