BY KARINA BROWN AND NIGEL JAQUISS
U.S. Attorney for Oregon Billy Williams arrived on the ninth floor of the Mark O. Hatfield United States Courthouse on Oct. 27 with a smile on his face.
A jury had taken just six hours to reach a verdict in the biggest case of Williams' career. It was the decisive moment in a 10-month saga that caused $6 million in damage to the Malheur National Wildlife Refuge and left one man dead.
Trial observers thought a guilty verdict was a foregone conclusion. The only question: Would all seven defendants be found guilty of conspiracy, or just Ammon Bundy, the ringleader of the 41-day refuge takeover?
Williams chatted with Greg Bretzing, FBI special agent in charge of Oregon, and the press like he was at a cocktail party. He invited a half-dozen reporters to a 9 am press conference the next morning at his office.
Williams never showed up for that press conference.
He and Bretzing fled the courtroom as soon as Judge Anna J. Brown read the verdicts: not guilty on all counts, a staggering defeat for the top federal prosecutor in the most high-profile criminal case Oregon has seen this century.
Tung Yin, a professor of criminal law at Lewis & Clark Law School, says prosecutors must be in shock.
"If you are the government, you have to be asking, 'How did we get it so wrong?'" Yin says.
Numerous theories have been bandied about in the wake of the Bundy acquittal. National pundits have blamed a jury susceptible to anti-government sentiment, implicit bias favoring white defendants, and an FBI that allowed the Malheur occupation to operate unchecked for nearly six weeks.
But for close observers, the Bundy case is merely the latest misstep for a prosecutor's office defined for the past five years by overreach and bungling.
The office is still reeling from the downfall of former U.S. Attorney for Oregon Amanda Marshall, who resigned last year after an affair with her top drug prosecutor, Scott Kerin. Half a dozen senior assistant U.S. attorneys retired early during or shortly after Marshall's tenure, stripping the office of valuable experience. Williams replaced Marshall on an interim basis, and legal observers say he's failed to right the office's course—citing last week's verdict as an example.
"This just struck me as more of the same arrogance and plodding ahead without much concern with other people's concerns and perspectives," says criminal defense lawyer Richard L. Wolf, who has tried murder cases against Williams' team but wasn't involved in the Bundy case.
Williams declined to comment but told The Oregonian he had commended his prosecutors for a "job well done."
To be sure, lawyers sometimes lose big cases. But the fateful choices made by Williams' team are in keeping with patterns that have been long apparent in the Hatfield building.
Bear Wilner-Nugent, a Portland criminal defense lawyer who practices in federal court, says there's little chance Williams will receive a permanent appointment to his job from the next U.S. president.
"I'm not sure why he'd want to keep the job," says Wilner-Nugent, "but to the extent that any further black mark is needed against Billy's office, this verdict provided it."
Here's where prosecutors got lost—and Williams probably lost any hope of keeping his job.
They got greedy.
The U.S. Attorney's Office rarely loses a case.
It can deploy a small army of FBI and other federal agents. Williams told The Oregonian that law enforcement spent spent nearly $12 million responding to the Malheur occupation.
That is reflective of an office that uses its tools aggressively. As WW reported last year, U.S. Department of Justice figures show the U.S. attorney for Oregon is a prodigious user of wiretaps, deploying the most invasive tool in law enforcement's arsenal far more often than districts with much larger populations and criminal caseloads.
That aggressiveness was reflected in prosecutors' decision to bet almost exclusively on a little-used conspiracy charge against Malheur defendants who had widely varying degrees of involvement.
Wilner-Nugent echoes many observers in questioning why prosecutors didn't hedge their bets by also filing lesser charges, including trespassing and destruction of property.
"They pursue overlapping and redundant charges normally. It doesn't make a lot of sense why they didn't do that in this case," Wilner-Nugent says. "They went for the whole enchilada or nothing."
The conspiracy charge, a felony, carried a longer potential sentence. But conviction required proving that defendants knowingly plotted together to achieve a specific outcome—preventing federal employees from working.
"The conspiracy charge was absolutely the problem," says Matt Schindler, attorney for Ken Mendenbach, one of the defendants acquitted last week. "They just couldn't prove it. It didn't fit the evidence they had. They didn't have a box to fit this one in, and they couldn't adapt. That's not their strong suit."
Mike Arnold was Ammon Bundy's attorney before Marcus Mumford took over Bundy's defense in May. Arnold says Bundy offered to plead guilty to criminal trespass the day after he was arraigned.
"They rejected my offer on day two that could have gotten us all out of this quickly and inexpensively," Arnold said. "They laughed. But OK, go put on your dog-and-pony show and get your ass handed to you."
Williams' spokesman, Kevin Sonoff, said the office stands by its use of the conspiracy charge, "as it is the most appropriate and applicable federal charge given the severity of their actions." He declined further comment.
They were politically naive.
Even in the harshest possible interpretation of Ammon Bundy's motives, the case against him and his associates was highly political—it was about who owns public lands.
But the government's lead prosecutor, Assistant U.S. Attorney Ethan Knight, ignored politics.
Knight told the jury that Bundy and his followers' ultraconservative beliefs about the rightful role of the federal government under the Constitution were irrelevant.
"The government doesn't dispute that they hold these beliefs," Knight said. "But at the end of the day, you can't conspire to take somebody else's work space and say, 'You're no longer welcome to work here, go home.'"
In a typical conspiracy case, the government uses co-conspirators who have already pleaded guilty to testify that a conspiracy existed and they were part of it.
The prosecution's only witness who might have played that role, a retired Burns electrician named Butch Eaton who rode out to the refuge with Ryan Bundy and watched Bundy supporters seize the refuge, took the stand with a copy of the Constitution poking out of his pocket.
Eaton teared up as he described his admiration for the defendants. He called them "a loving, hugging brotherhood" and said they changed his political views. "In some people's eyes, I was a puss. I left. Their convictions were stronger than mine," Eaton said. "They shouldn't be here."
That meant the only government witness who was not a federal employee became a star witness for the defense.
Political tone-deafness is nothing new for Williams' office. Over the summer, his team charged a Native American teenager, Devontre Thomas, with a felony for allegedly possessing less marijuana than it takes to roll a joint.
That baffling decision incurred the wrath of Oregon's congressional delegation. Williams dropped the case after condemnation from U.S. Rep. Earl Blumenauer (D-Ore.), among others.
Ignoring the larger political context may have cost prosecutors the Bundy case.
"The heart of this case was frustration about poverty," says Per Olson, who represented the defendant David Fry. "You've got people living in close proximity to resources—federal lands—that could provide them an income and even wealth. They missed that."
They were arrogant.
Defense lawyers paraded a stream of Bundy supporters onto the stand. Witness after witness told the jury they were warmly received when visiting the refuge occupiers—undermining the idea that the defendants were dangerous.
Ammon Bundy himself testified for three days. He detailed the mechanics of adverse possession, a legal process he claimed allows him to seize ownership of federal property. He told the jury the occupation was motivated by his enormous love for his family and his country.
Bundy's attorney, Mumford, painted him as a valiant patriot fighting against a government contemptuous of his point of view.
One of Mumford's presentation slides read: "Being ignored: The worst feeling ever."
Mumford created a powerful narrative the government didn't bother countering.
Knight, the prosecutor, answered Bundy's three-day testimony with just 15 minutes of cross-examination. It was as if there were no need to undercut Bundy's story.
"They completely overvalued the strength of the case because a bunch of yes men that all agree with each other came up with a strategy," Arnold says. "And they were wrong."
In 2014, Judge Ancer Haggerty excoriated the U.S. Attorney's Office in another high-profile case that appeared to be a slam dunk. In that case, the quadruple-murder trial of white supremacist Joey Pedersen, Haggerty found that prosecutors led by Williams, then the office's criminal chief, took a dismissive attitude toward defendants and failed to share evidence with defense lawyers.
Pedersen was convicted but Haggerty said those errors reflected "systemic problems likely to recur absent corrective actions."
Only Williams knows if those corrective actions were taken. But after Haggerty admonished his team, Williams went on to charge Devontre Thomas in the marijuana case—and preside over a trial that some people fear will embolden Bundy sympathizers across the country.
"Billy just did what U.S. attorneys do," says Lisa Ludwig, standby counsel for Ryan Bundy, Ammon's brother. "Public humiliations and trial losses are the only things that get their wings clipped even for a little while. Then they just weather the news cycle and keep doing what they are doing."
CORRECTION: This story incorrectly stated that prosecutors spent nearly $12 million preparing for the Bundy trial. In fact, U.S. Attorney for Oregon Billy Williams told The Oregonian that law enforcement agencies spent that figure responding to the Malheur occupation. WW regrets the error.