Their start was rocky, but the defense attorneys for Ammon Bundy and six others accused of taking over the Malheur National Wildlife Refuge picked up speed Wednesday — so much so it appears they could wrap their case up next week. Toward the end of the day’s session, U.S. District Court Judge Anna Brown observed the defense was quickly moving through its witness list. The day started, however, on much shakier legs. Brown grew visibly frustrated during the initial proceedings when it became unclear who on the defense would call the first witnesses and which witnesses would be called.
“I’m not here to organize your case. I don’t want to,” Brown told the defense attorneys.
The prosecution said they had only received the witness list Wednesday morning from Ammon Bundy’s attorney, Marcus Mumford, and hadn’t had enough time to go through it.
“Get it together, folks,” a frustrated Brown added after about 30 minutes of the defense trying to figure who would call the witnesses. “It’s 9 o’clock. Someone call a witness.”
Eventually, occupier David Fry’s attorney, Per Olson, stepped up to call the first witness for the defense, FBI negotiator Marc Maxwell.
Maxwell spent several weeks in Harney County and spoke on the phone with Fry and fellow occupier Jeff Banta in the final days of the 41-day takeover. Olson’s line of questioning seemed to be driving at establishing his client’s mental state in those final days.
Olson asked Maxwell about Fry’s holding a gun to his head and having suicidal thoughts. Maxwell testified about working through suicide prevention techniques with Fry. He also described the final conversation with Fry, when the 28-year-old from Ohio demanded negotiators say “hallelujah” before he would surrender.
“I said ‘hallelujah,’” Maxwell said.
“And he came out?” Olson asked.
“And he came out,” Maxwell said.
During direct of FBI negotiator Chris Luh, Per Olson asked if on Jan. 26 he called occupiers still at the refuge to leave.
Luh said yes. He spoke to Blaine Cooper, Jason Patrick, David Fry and others.
Olson asked if Lou told Cooper to just take the essentials, and leave everything else. After reviewing transcript, Lou said yes.
The defense also called a member of the Confederated Tribes Of Siletz Indians: Shellia Warren. She visited the refuge for several hours Jan. 24, when she met with Ryan Bundy and several others involved in the occupation. Warren testified she visited the refuge to check on Native American artifacts and found that they were fine when she arrived. Though she also admitted she didn’t actually enter the basement room where the artifacts were being stored.
Warren’s testimony was supportive of the defense’s assertion the occupation was a peaceful protest. She described being greeted warmly by the occupiers, and not witnessing any weapons at the refuge during her visit.
Warren’s testimony ran counter to evidence from the prosecution in the initial weeks of the trial, which included photos depicting armed guards stationed at the entrance to the refuge. Warren testified she never felt threatened during her visit.
During cross examination from Assistant U.S. Attorney Ethan Knight, Warren acknowledged the Siletz Tribe has disavowed her visit to the refuge.
“I’m not speaking for the Siletz,” she responded.
Knight also questioned her about why she chose to meet with Ryan Bundy for 45 minutes, but declined to speak with the FBI about her visit to Burns.
“I didn’t trust the FBI,” she said.
During a line of questioning from defense attorney Mumford about her distrust of the FBI, Brown became animated and ordered Warren to stop talking when her testimony seemed to start veering toward bringing up the shooting death of Robert “LaVoy” Finicum two days after her visit. The judge has previously ruled the shooting is not up for discussion during this trial, except to mention that it happened and when it happened.
The defense also called to the stand FBI agent Ben Jones, who testified about his first interaction with defendant Ryan Bundy.”The first time we met was at church,” Jones said, in response to a question from Bundy. Shortly after the occupation began, the FBI asked Jones and another agent, both of whom are Mormon, to attend the Church of Latter-day Saints in Burns. “We knew you were Mormon, and we thought you might be attending,” the agent told Bundy during questioning.
“I was there to see if you were recruiting people or what you were doing there,” Jones also said.Jones said he told the congregation he was an FBI agent, as well as a Mormon, during his Jan. 10 visit to the church. He and Bundy shook hands but did not exchange words, he said. Through testimony given by other FBI agents in the afternoon, the jury heard the FBI had received intelligence Jan. 1 — the day before the occupation began — that a takeover at the refuge was a possibility. Jurors also heard the FBI began tracking Ammon Bundy’s general whereabouts sometime after Jan. 1 by pinging his cellphone. Testimony for the defense continues Thursday morning. Rev. Franklin Graham, one of the third-party negotiators who helped the final four occupiers leave, will testify. Ammon Bundy could also take the stand Thursday.