On Thursday, four more of the 2016 occupiers of an Oregon wildlife refuge received verdicts for their participation in the refuge’s seizure; none of the defendants left the courtroom completely innocent on all counts, but only two were found guilty of the more significant conspiracy charges rendered against all four. These are only marginally disappointing results when compared with the recently passed trial of seven of the other armed militants who, astoundingly, were all acquitted of very obvious infractions of the law several months ago. Those on the Left who attribute these stunning decisions to an American culture friendly to violent conservative activism are right; there is a double standard when it comes to contemporary society’s response to the protest of the Right and Left. But a closer analysis of the occupiers’ time in court is cause for hope that the jury’s decisions were based not on the allure of militia culture, but on the poor performance of the prosecution against a vulnerable defense. As the details will attest, the treatment of the Oregon occupiers was likely an anomaly, meaning there is still room for optimism that justice can be served when it comes to modern militias in court.

Almost a year after their disagreeable one month stand-off with authorities, September, 2016 saw the Oregon militants bring their conflict with the Federal government to District court in Portland. Eight plead “not guilty” on counts of conspiracy to impede the work of Federal employees at the Refuge. Most were confident that this was a knowingly futile act of defiance for the militiamen. But the selection of the conspiracy charge by Federal prosecutors as the crux of their case immediately raised eyebrows in the legal community. By pursuing only the singular conspiracy felony with all eight defendants, they were apparently forfeiting offenses with much more substantive evidence, such as trespassing or the actual act of preventing Refuge employees from doing their jobs. Arguing the conspiracy charge would require proving to the jury that at least two of the defendants had agreed beforehand to seize Malheur National Wildlife Refuge with an explicit intent of impeding Federal work there. The task was so daunting, the prosecution felt compelled to drop their case (or lack thereof) against the eighth defendant in pretrial.

The defense, meanwhile, was haphazard and confused throughout the trial. Composed of seven distinct legal teams, two of which were inexperienced defendants representing themselves, it was characterized by the irregular starting and stopping of testimonies and a complete lack of agenda. Its lines of defense always concerned the defendant’s motivations, the actions themselves never in dispute. The defense teams attempted to paint seizing Malheur as a lawful act of civil disobedience when the militants had made numerous threats against the lives of law enforcement. When the prosecution paraded the nearly three dozen firearms collected from the surrendered Refuge in court, the defense responded that guns were completely in line with “civil protest,” protected by the Second Amendment and lending “respect” and “clout” that would have otherwise eluded the occupation. The defense’s rare responses to the outstanding conspiracy charges were even more laughable: somehow it had escaped the militants in their planning of the Refuge takeover that their activities might potentially impede the work of Federal employees there. “Besides,” it was argued, “there was nothing to stop those employees from returning to work during the occupation…” This was a defense team asking to lose.

The prosecution, however, was overcome by their inadequacies, their presentation struggling to construct the story of a conspiracy intended to prevent Refuge work. A video statement by occupation leader Ryan Bundy was submitted to the court as corroborating the conspiracy claim. In it, the defendant described the occupation as intended to stop the issuing of Federal orders. Judge Anna Brown denied the prosecution the use of this evidence, depriving the team of perhaps its only route to victory. The direness of this argumentative predicament in no way jived with the prosecution’s courtroom personality, however, which was described by observers as “arrogant” and “cocky.” After the three-day testimony of defendant Ammon Bundy for the defense, the prosecution spent a mere 15 minutes cross-examining; other speeches and rebuttals were notable for being short and confident.

In retrospect, the jury’s unanimous decision to exonerate all seven of the trial’s defendants on the conspiracy charge is legally sensible, given the prosecution’s poor choice of charges. But at the time the verdict’s rationality wasn’t so clear, and understandable indignation arose in left circles over a “racist jury.” Could the jurors have been motivated by conservative talking points gleaned from the trial? Sure. But it is critical to recognize the legal faults that occurred behind closed doors that enabled right-wingers to win. We can still maintain the hope that the egregious acts of militiamen and “patriots” will be curbed in the future. Don’t let an anomaly set the precedent.

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