Mimesis Law
26 February 2020

The Ammon Bundy Trial: This Is Why We Have Juries

October 31, 2016 (Fault Lines) — OJ Simpson. Casey Anthony. George Zimmerman. Juries, and jurors, tend to get a bad rap anytime they issue a two word verdict that the public doesn’t agree with. Mostly this is because the public isn’t in the courtroom, and from what they see or read in the news (and the pseudo-news like Nancy Grace) a guilty verdict is just “common sense.”

The latest entry on that list is the not guilty verdicts in the trial of Ammon Bundy and the Ammosexuals. But once again, the general public is getting it all wrong. For anyone who’s ever cracked the old joke about how “the Constitution guarantees the right to a jury of one’s peers too stupid to get out of jury duty,” the email Juror No. 4 sent to the Oregonian is Exhibit A as to why that isn’t true.

The internet chatter simply assumes that the jury was a bunch of dumb, racist hicks; and that the verdict was an exercise in jury nullification. Nothing could be further from the truth:

“It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove ‘conspiracy’ in the count itself – and not any form of affirmation of the defense’s various beliefs, actions or aspirations,” Juror 4 wrote Friday in a lengthy email to The Oregonian/OregonLive.


“It was not lost on us that our verdict(s) might inspire future actions that are regrettable, but that sort of thinking was not permitted when considering the charges before us.”

Basically, the entire email is a testament to the efficacy of jury instructions, which lawyers for both sides are often cynical about. But the jury seems to have done a pretty good job of parsing them:

Juror 4 noted the panel couldn’t simply rely on the defendants’ “defining actions” to convict.

“All 12 agreed that impeding existed, even if as an effect of the occupation,” he wrote.

“But we were not asked to judge on bullets and hurt feelings, rather to decide if any agreement was made with an illegal object in mind,” the Marylhurst student wrote. “It seemed this basic, high standard of proof was lost upon the prosecution throughout.”

The jury was able to draw a distinction between the acts themselves, and whether or not there was a pre-existing agreement to commit the acts. This is the exactly the sort of thing people “too stupid to get out of jury duty” are supposedly unable to do. The jury didn’t seem happy about it either:

He said many of the jurors questioned the judge about why the federal government chose the “conspiracy charge.” He said he learned that a potential alternate charge, such as criminal trespass, wouldn’t have brought as significant a penalty.


“We all queried about alternative charges that could stick and were amazed that this ‘conspiracy’ charge seemed the best possible option,” Juror 4 said.

[As an aside, it’s strange that the defendants weren’t charged under 18 USC 111(b), which states:

Whoever, in the commission of [impeding a federal employee] uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

That charge both fits what the defendants did and provides for a harsher penalty than the conspiracy charge.]

Which is another common theme in cases that inspire public outrage: prosecutorial overreach. Not satisfied with whatever the law actually allowed him to charge, the prosecutor let his reach exceed his grasp, and relied on the weakest sauce in the cupboard of arguments to try and get a conviction on more serious charges:

Meanwhile, earlier Tuesday a federal prosecutor told the jury that the case comes down to common sense.

I’m sucking up linking to Scott a lot today, but the prosecutor clearly doesn’t read Simple Justice:

Common sense is used for one purpose only, to instruct jurors to ignore the lack of evidence and take an inferential leap over the gaps in proof.  These words reflect the plague of our jury system, and its pretense of making findings “beyond a reasonable doubt.”

Exactly right. The Oregon jury didn’t fall for it. They put aside their personal feelings, judged the case on the evidence, and held the government to its standard of proof. We can all wish that it had benefitted people more sympathetic than the Malheur Morons. That said, if we knew the jurors’ identities I would be suggesting that the twelve of them star in the annual Fault Lines Swimsuit Calendar. This is why we have a jury system.

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  • dm
    1 November 2016 at 10:23 am - Reply

    I know that you think “ammosexual” is an insult, but us gun nuts, I mean firearm aficionados, laugh our asses off every time we see it bandied about by you gun grabbers. I’m going to go renew my NRA membership now.

  • How Salon Botched The Bundy Verdict
    5 November 2016 at 11:08 am - Reply

    […] Fault Lines contributor Noel Erinjeri points out in his brilliant Halloween explainer of the verdict, the “the jury was a bunch of dumb, racist hicks” explanation that’s been percolating through […]