October 27, 2016

#OregonStandoff — Bundy verdict not necessarily wrong, legally

Brokeback Oregon went on trial starting on Sept. 7. And now, just over two and a half months later, seven of them, including leaders Ryan and Ammon Bundy, have been found not guilty. Oregon Public Broadcasting has yet more depth on the verdict, with quotes.

In reality, this isn't THAT surprising. And, per the header, it's not necessarily wrong.

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First, the feds have a long history of charging people with conspiracies without also charging the individuals with specific, individuated crimes.

For example, here in Texas, the conspiracy statute is "engaging in organized criminal activity." Two or more people each must be charged with the same "individuated" crime to also be charged with this. Not so with the feds. (And, especially in the post-9/11 world, fat chance of the federal statute ever being amended like that — even though the Texas one is abused in other ways.)

And this is another clear case of that.

They were charged with a conspiracy to hinder federal employees from doing their jobs, while none was actually charged with actually doing so. This particular conspiracy law, though, has rarely been used, and stems from the Civil War. As the link notes, in modern times, it's been used against environmental and antiwar activists. Liberals, let alone left-liberals, are you really OK with that?

In the future, it could be used against Dakota pipeline protestors. #NoDAPL liberal backers, are you OK with that? If the Bundys had been convicted, would you be OK with that as a precedent of sorts in pipeline cases?

And, with a not guilty on that, the weapons charges were guaranteed to go by the wayside. (Unless the weapon is used for another crime, the charge has a maximum prison time of one year; basically, it's an enhancer for other charges.) Yes, there was clear evidence of that, but, from what I've read of the case, prosecutors chose to focus on the conspiracy, which has a six-year max penalty.

In other words, the prosecution rolled the dice on getting at least six years, with a minimum of concurrent sentences reducing chances for early parole and perhaps hoping for consecutive sentences. And lost, big time.

The gummint's case wasn't helped by the revelation a week ago that there was an FBI informant inside the Ammonites, I'm sure, even if his role was overblown.

I mean, destruction of property (criminal mischief the state statute here in Texas) and other charges (if the Feds have an equivalent of theft of services, which would be kind of like preventing employees from working .. but the actual charge, not a conspiracy to do so) were clearly available in the case. Ryan Bundy was charged with theft, of FBI security cameras, but got a hung jury on that. And that was it, other than the weapons charges.

One has to wonder — and some degree of conspiracy thinking is sometimes valid with federal prosecutors in particular and prosecutors in general — if the particulars of charges were structured to sandbag the case. And, yes, prosecutors do occasionally do stuff like that. They may think a case isn't winnable, and to make sure it isn't, do something like this.

Morally? Totally different issue. But lawyers, and others who also know better, know the law has nothing to do with morals.

But, speaking of ...

High Country News reviews the bad history of the Ammonites. And, it notes that even other defenders of the New Sagebrush Rebellion or whatever we call it are perplexed at the legal strategery of Ryan and Ammon Bundy, above all others in the case. (Maybe they're less perplexed now, but probably not; a lot of the strategery was idiotic.)

(Note: For #BrokebackOregon or #BundyEroticFanFic, go to this blog post with some quite purplish, and turgid, prose.)

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