Category Archives: Malheur

Bill Clinton, criminal law, and political machinations

Although much is made of the 1994 crime bill, superpredators et al., in today’s election, a more damning demonstration of Slick Willy’s attempt to out-Republican the Republicans can be found in The Antiterrorism and Effective Death Penalty Act (AEDPA) passed in 1996 after the Oklahoma City bombing. The Republicans had won the 1994 midterm election with Newt Gingrich’s notorious “Contract with America” (known in liberal circles as the Contract on America) and the Oklahoma City bombing seemed tailor-made for the law-and-order Republicans to play havoc with justice issues, including the 1994 crime bill.

Hoping to head off any tampering with his crime bill, Clinton and his administration hoped to kill two birds with one stone with AEDPA. Not only did it target the sorts of terrorism involved in Oklahoma, but also the “endless” appeals in death penalty cases which meant that inmates could wait years for an execution that might never happen. The mechanism by which this delay occurred was the time-honored and constitutionally guaranteed Writ of Habeas Corpus.

Habeas corpus is one of those often misunderstood and frequently disregarded rights that our forefathers were rightfully strongly in favor of. The writ allows judicial review of incarcerations as a result of actions in state courts  that may have violated constitutional guarantees and national standards of due process. It was one of the areas where our noble revolutionaries of the 18th century saw the autocratic hand of the monarchy as a cudgel against fairness and constitutional guarantees. Habeas corpus was a cornerstone of our revolutionary past.

Clinton’s aim was to restrict habeas corpus to one attempt started within one year of the end of state appeals. On its face, there’s nothing wrong with such a limitation. In fact, however, the problems with a prosecution may not be found for many years, and such a limitation cuts off advances in science or forensics that may establish a defendant’s innocence beyond a reasonable doubt. A case in point is DNA evidence. While new cases have shown some of the problems with relying on DNA evidence to prove a case, its use in disproving a case has never been stronger. The Innocence Project has won the release of many prisoners when DNA evidence has excluded the defendant from the pool of possible committers of the crime. Because of AEDPA, habeas corpus can no longer be used in the case of evidence of the defendant’s innocence, and nothing more strongly shows how warped and unconstitutional AEDPA is than the fact that habeas corpus cannot be used for its original purpose so important to our legacy.

And what, you might ask, did this violation of such an important constitutional principle have to do with the Oklahoma City bombing, the trigger for this heinous act? The Clinton White House hosted a meeting with survivors and family members of the victims of the bombing. One of their alleged complaints was the incessant appeals that would allow the terrorists the ability to tie up the courts with appeals for years. Clinton, facing re-election and determined to beat the Republicans at their own game, created this draconian truncation of the habeas corpus writ to prove he was “tough on crime,” a racial dog whistle at the time as shown by the 1994 crime bill.

The AEDPA was passed, without the support of Bernie Sanders, and is in use today under the most bizarre and surreal circumstances. The conviction of two farmers in Oregon under a provision of the AEDPA led to the standoff at the Malheur Wildlife Refuge in Oregon and to the horror that they were convicted under a terrorist statute.  How so? The AEDPA made it a 25 year felony with a mandatory 5 year sentence to those who willfully and maliciously burned federal property, including grazing land.

While we may laugh at the irony to which the statute was used in Oregon, we cannot laugh at the the number of prisoners who must stay in prison because the unfairness of their convictions was not raised within the new time limits enacted in the AEDPA, whether they could know of the unfairness then or not. We have an evolving law with regard to rights and due process, and a whole class of criminals are barred now from challenging their convictions because Bill Clinton wanted to out-Republican the Republicans to insure his re-election in 1996.



The Bundy Bandits and Malheur, Part 1

I belong to another website where there has been much discussion of the furor in Haney County, Oregon. As a result, I have done quite a bit of research, and intend to post at least this one and one other on what is going on there, and maybe more depending on the reception of the first one or two.

In this first one, I will discuss the history of the public land now in dispute and my understanding of what the trial of the Hammonds entailed. But first, a brief explanation of why this is of any interest to anyone:

Cliven Bundy, the misbegotten rancher who owes in excess of $1 million dollars in grazing fees to the federal government, or us if you want to look at it that way, has a number of sons. One of them, Ammon Bundy,  grabbed a bunch of his “militia” buddies and took them up to Oregon to fight for the freedom of the Hammonds. They weren’t invited, and the Hammonds quickly made it clear that they were not in favor of this invasion. Bundy and crew took part in a peaceful demonstration in Burns, the nearest town to the Hammond ranch, and then marched the thirty miles to the Malheur Wildlife Refuge, which was closed for the holidays. They took it over, armed to the teeth, and said they would be peaceful as long as no one tried to come and roust them out. They are still there, and are now damaging parts of the Refuge.

The Malheur Wildlife Refuge was first identified as the Paiute Malheur Indian Reservation, a designation  given by President Ulysses S. Grant in 1872. From the time the reservation was created, settlers from the eastern US put pressure on the natives to cede land to them. There was strife at a low level for several years until the Bannock War in which the Paiutes and other natives of the Bannock, a distant subgroup of the Paiute, tried to drive the settlers away from their land. The natives lost the war, and the Paiutes were moved to a much smaller 800 acre reservation in Burns.

The land stayed in the federal governments inventory through the next several years, and it was used for ranching, hunting, fishing and other activities. In 1888, the Oregon Audubon Society noticed that plume hunters were killing the water fowl for their feathers, and sought help from the federal government. In 1908, Teddy Roosevelt created out of the old reservation the Malheur National Wildlife Refuge, in order to protect the water birds. To this day, the site is held as a major stopping place for birds migrating on the Pacific Flyway, and receives 40,000 visitors a year for bird watching and camping.

The Hammonds are ranchers whose ranch abuts the Malheur National Wildlife Refuge. Under an agreement with Bureau of Land Management the Fish and Wildlife Service, the Hammonds had grazing rights to a section of the land in the Refuge. In 2002, a fire was started by the Hammonds that burned 139 acres of the refuge. Another fire in 2006 burned an acre of the refuge. Dwight Hammond Jr, and his son Steven were charged with arson under a statute that carries a mandatory minimum sentence of five years.

There was plea bargaining that went on in which the prosecutor offered  the older man, in his 70s, a three month sentence on a lesser charge and Steven a one year sentence, also on a lesser charge. They each rejected the offer and took their chances with a jury trial on the more serious charge.

The acting US Attorney for Oregon issued a statement of the evidence introduced at trial. The 2002 fire was observed by a hunting guide, a hunter, and his father. They were camped near the spot the fire started. Before the fire started, they witnessed men shooting at a herd of deer, killing at least seven and leaving many injured who managed to get away. The slain deer were not harvested by the shooters. Shortly thereafter, the witnesses became aware of a fire spreading from where the shooters had been, burning the evidence of the slaying and threatening them where they were. They fled the scene, and the fire went on to burn 139 acres of the Refuge. There was also testimony from a nephew of Steven Hammond who had some mental challenges. He said he was given matches by his uncle and told to start a fire. He also testified that he was told to keep his mouth shut.

The jury concluded that the Hammonds were guilty of arson, in this case, maliciously damaging United States property by fire. The jury also found Steven guilty of lighting another fire in 2006. Fire wardens were fighting a number of blazes in the Refuge and Harney County had issued a no-burn order. As one of the blazes neared the Hammond ranch, at night Steven set a backfire to prevent the fire from leaving the Refuge and damaging his winter wheat. In doing so he endangered several firefighters. He later admitted to setting that fire.

The trial judge made some evidentiary rulings on evidence offered by the Hammonds that led to the exclusion of some of their defense. When the jury convicted them of the arson charge, the judge imposed sentences less than the mandatory minimum required by the statute, and in fact gave the Hammonds the sentences that were being discussed in the plea negotiations. The prosecutors appealed the sentence, but the Hammonds did not appeal the judge’s evidentiary rulings. The Supreme Court returned the case to the court for sentencing in conformance with the law. The trial judge had retired the day after the trial ended, so the case was given to another judge for sentencing. He imposed the mandatory minimum sentence, and the Hammonds, who had served the sentences imposed by the trial judge, were ordered back to prison with credit for the time they had already served.

The Hammonds’ supporters claim two things about these events. They claim that they were deprived of the ability to present their defense, not because of adverse rulings, but because the judge limited the time for them to put on a defense. If this were true, their lawyer would have appealed such a grotesque miscarriage of justice. The lack of an appeal suggests strongly that this was not the case. Their second claim is that the Hammonds had done their time, and it was unfair to sentence them to more time. The Hammonds in this case were the victims of a judge who abrogated his obligation to uphold the law. That is sad. But they fought the appeal of the prosecutor to rectify the miscarriage of justice that the trial judge committed. They knew or should have known that they were given an incorrect sentence for the crimes for which they were convicted. Apparently reason prevailed, for the Hammonds went to turn themselves in, as ordered, in San Diego.

The Hammonds wanted to argue at the trial all the injustices they felt they had suffered at the hands of the federal government over the forty years they had owned their ranch. This was not a valid defense for the two criminal fires they set, and were not evidence having to do with the specific crimes. The evidence was rightly excluded from the trial, but their claim found merit in the eyes of Cliven Bundy and his children. I will discuss this in another post shortly.