Patterico's Pontifications

1/3/2016

What Are the Bundys Protesting?

Filed under: General — Patterico @ 3:27 pm

We’re often told that in order to defeat the terrorists, we need to understand their grievances. So, not to defend an armed occupation of federal property (#OccupyNowheresville!), but to understand some of what might motivate the folks doing it, let’s take a look at the case they are protesting, and the broader issue of federal control and management of Western lands.

First, let’s start with the following map, which creatively shows how much Western land is owned by the federal government. Each state has a red shape inside, which is the same shape as the state, but which depicts the acreage in that state owned by the federal government. The shapes do not show the actual territory owned, but accurately depict the amount owned by the feds. As you can see, in Nevada it’s almost 90%.

Screen Shot 2016-01-03 at 3.16.02 PM

The actual percentages of land owned by the federal government for the Western states are shown in this chart:

Screen Shot 2016-01-03 at 3.16.40 PM

I am not going to detail the Hammond case, but will give you some links — and some quotes from the court documents, which I pulled and do not find accessible to people without a PACER account.

Everything takes place in the context of the Fish and Wildlife Service buying up all the land around the Hammond ranch for a wildlife refuge. Apparently owning half the land in the West was not good enough for the feds; they had to have more and more and more and more. Then, the feds allegedly took many seemingly retaliatory actions against the Hammonds after they refused to sell. Then, we come to the arson fires, which as presented on the Internet is a hodgepodge of one-sided accounts.

The U.S. Attorney’s one-sided account is here, in its press release. There are a couple of one-sided accounts sympathetic to the Hammonds here and here. The Hammonds’ brief to the U.S. Supreme Court is here. I am not going to vouch for the accuracy of everything in those accounts, but these pieces will at least give you some idea of the other side of the story. Here is an excerpt from one of them:

The first, in 2001, was a planned burn on Hammonds’ own property to reduce juniper trees that have become invasive in that part of the country. That fire burned outside the Hammonds’ private property line and took in 138 acres of unfenced BLM land before the Hammonds got it put out. No BLM firefighters were needed to help extinguish the fire and no fences were damaged.

Dwight’s wife Susan shared some crucial details in an exclusive interview with TSLN.

“They called and got permission to light the fire,” she said, adding that was customary for ranchers conducting range management burns – a common practice in the area.

“We usually called the interagency fire outfit – a main dispatch – to be sure someone wasn’t in the way or that weather would be a problem.” Susan said her son Steven was told that the BLM was conducting a burn of their own somewhere in the region that very same day, but that they believed there would be no problem with the Hammonds going ahead with their planned fire. The court transcript includes the same information in a recording from that phone conversation.

In cross-examination of a prosecution witness, the court transcript also includes admission from Mr. Ward, a range conservationist that the 2001 fire improved the rangeland conditions on BLM.

. . . .

Susan said the second fire, in 2006, was a backfire started by Steven to protect their property from lightening [sic] fires.

“There was fire all around them that was going to burn our house and all of our trees and everything. The opportunity to set a back-fire was there and it was very successful. It saved a bunch of land from burning,” she remembers.

The BLM asserts that one acre of federal land was burned by the Hammonds’ backfire and Susan says determining which fire burned which land is “a joke” because fire burned from every direction.

Neighbor Ruthie Danielson also remembers that evening and agrees. “Lightening [sic] strikes were everywhere, fires were going off,” she said.

The father is 73 years old and had no prior record. He was convicted of one count of arson.

A couple of points. First: it’s not really the case that the jury accepted every aspect of the government’s case, just because there were a couple of arson convictions. The Hammonds admitted starting the two fires of which they were convicted, and the dispute was over whether they intended the fires to spread to public lands. The jury, as I understand it, found that they did — but that doesn’t mean the jury found that they were trying to act as terrorists, or burn down large swaths of the countryside, or do anything but protect their own property.

To me, rather than reading a bunch of partisan accounts from both sides, I thought I would look at the comments of the sentencing judge, which I pulled from PACER and you can access here. I also found the Ninth Circuit decision, which I have uploaded for your reading pleasure, and which you can access here.

I think that, to have a full understanding of everything that happened, you probably needed to sit through the trial. But here is my impression based on what I have read. The father and the son admitted setting the fires. In one case, there was a dispute about whether they were trying to cover up illegal hunting. The government’s position was based on a relative, Dusty Hammond, who apparently had had a falling out with the Hammonds (more about that below) and was 13 years old when the events happened. Apparently aspects of his testimony were at odds with some public hunting records. The judge seemed to think that witness was trying to tell the truth, but might have gotten some things wrong due to age and bias.

The judge also seemed to believe that the Hammonds were people of good character and not bad people, saying during the sentencing:

With regard to character letters and that sort of thing, they were tremendous. These are people who have been a salt in their community and liked, and I appreciate that.

The prosecutor also said that “both have done wonderful things for their community and those deeds are recognized in these letters.” He also alluded to “Dusty Hammond’s abuse at the hands of Steven Hammond.” The judge said about that: “There was, frankly, an incident, apparently it was removal of tattoos, that would have colored any young person’s thinking, and if that’s what happened, it can’t be defended, of course, but that’s not what’s before the court today.” Putting two and two together, the son apparently took some kind of violent action to remove Dusty Hammond’s tattoos, and Dusty Hammond did not like the son as a result.

As to the father Dwight Hammond’s single arson conviction, the judge said:

Well, the damage was juniper trees and sagebrush, and there might have been a hundred dollars, but it doesn’t really matter. It doesn’t affect the guidelines, and I am not sure how much sagebrush a hundred dollars worth is. But I think this probably will be — I think mother nature’s probably taken care of any injury.

Regarding the five-year mandatory minimum for both defendants, the judge (Judge Michael Hogan) said:

I am not going to apply the mandatory minimum and because, to me, to do so under the Eighth Amendment would result in a sentence which is grossly disproportionate to the severity of the offenses here.

And with regard to the Antiterrorism and Effective Death Penalty Act of 1996, this sort of conduct could not have been conduct intended under that statute.

When you say, you know, what if you burn sagebrush in the suburbs of Los Angeles where there are houses up those ravines? Might apply. Out in the wilderness here, I don’t think that’s what the Congress intended. And in addition, it just would not be — would not meet any idea I have of justice, proportionality. I am not supposed to use the word “fairness” in criminal law. I know that I had a criminal law professor a long time ago yell at me for doing that. And I don’t do that. But this — it would be a sentence which would shock the conscience to me.

The judge sentenced the Hammonds to much shorter sentences (three months for Dwight Hammond, the dad, and twelve months and a day for Steven Hammond), which they have served. The Ninth Circuit held that the minimum five-year sentence was not so disproportionate as to violate the Eighth Amendment’s “cruel and unusual punishment” clause. Now they have been resentenced to five years in prison, under an antiterrorism law passed by Congress.

I have read that the Hammonds do not want the help of the Bundys. My belief is that they are trying to get clemency from Obama and figure that a standoff with the federal government is counterproductive to that effort.

The Hammonds don’t seem like particularly bad people, from what I can tell. They certainly are not terrorists. The Bundy action, taking over a building in the middle of nowhere, may be bringing attention to an injustice.

The Hammonds surrender to serve their five-year sentences tomorrow.

157 Responses to “What Are the Bundys Protesting?”

  1. Ding.

    Patterico (39da75)

  2. stupid fed poopers drank all the milkshakes

    happyfeet (831175)

  3. This judge is a crook and should be jailed. (n) During the trial proceedings, Federal Court Judge Michael Hogan did not allow time for certain testimonies and evidence into the trail that would exonerate the Hammonds. Federal prosecuting attorney, Frank Papagni, was given full access for 6 days. He had ample time to use any evidence or testimony that strengthened the demonization of the Hammonds. The Hammonds attorney was only allowed 1 day. Much of the facts about the fires, land and why the Hammonds acted the way they did was not allowed into the proceedings and was not heard by the jury. For example, Judge Hogan did not allow time for the jury to hear or review certified scientific findings that the fires improved the health and productivity of the land. Or, that the Hammonds had been subject to vindictive behavior by multiple federal agencies for years.

    (o) Federal attorneys, Frank Papagni, hunted down a witness that was not mentally capable to be a credible witness. Dusty Hammond (grandson and nephew) testified that Steven told him to start a fire. He was 13 at the time and 24 when he testified (11 years later). At 24 Dusty had been suffering with mental problems for many years. He had estranged his family including his mother. Judge Hogan noted that Dusty’s memories as a 13-year-old boy were not clear or credible. He allowed the prosecution to continually use Dusty’s testimony anyway. When speaking to the Hammonds about this testimony, they understood that Dusty was manipulated and expressed nothing but love for their troubled grandson.

    (p) Judge Michael Hogan & Frank Papagni tampered with the jury many times throughout the proceedings, including during the selection process. Hogan & Papagni only allowed people on the jury who did not understand the customs and culture of the ranchers or how the land is used and cared for in the Diamond Valley. All of the jurors had to drive back and forth to Pendleton everyday. Some drove more than two hours each way. By day 8 they were exhausted and expressed desires to be home.

    On the final day, Judge Hogan kept pushing them to make a verdict. Several times during deliberation, Judge Hogan pushed them to make a decision. Judge Hogan also would not allow the jury to hear what punishment could be imposed upon an individual that has convicted as a terrorist under the 1996 act. The jury, not understanding the customs and cultures of the area, influenced by the prosecutors for 6 straight days, very exhausted, pushed for a verdict by the judge, unaware of the ramification of convicting someone as a terrorist, made a verdict and went home.

    mg (31009b)

  4. Yes, that is from the Conservative Treehouse link. I’m not sure I buy all that.

    Patterico (39da75)

  5. doesn’t arson have to be malicious as well as intentional, it seems like an overcharge, the treehouse includes a series of links, from which they drew their story,

    narciso (732bc0)

  6. lol like rule of law has something to do with the department of justice

    happyfeet (831175)

  7. It’s very interesting to see the Twitter and Facebook storm about this—straight up meme-warfare.

    Why, I was fascinated to read that it’s treason to occupy any Federal building! This from people who seem utterly unconcerned with people they like occupying and trashing things—including Federal property.

    Yes, yes, Orwellian Twister is the game d’jour.

    The truth is seldom black and white, but in the middle.

    But I am more and more despondent over the “narrativization” of pretty much any issue or event today.

    Simon Jester (57277b)

  8. the treehouse includes a series of links, from which they drew their story,

    I did not see much in the way of references there.

    Patterico (39da75)

  9. Many thanks for this balanced and careful account. One question: Why were the Hammonds only charged over 2001 and 2006 fires in 2011? They didn’t dispute that they set either fire, they weren’t fugitives, the government knew where to find them, and it took a decade to decide that they were criminals? It doesn’t seem to pass the smell test, and I can’t find news stories that explain the gap between crime and charges.

    Chris Bray (e379d9)

  10. and I can’t find news stories that explain the gap between crime and charges.

    Because Chris, it took a decade to make sure the legal fees would eat up all their wealth and they would have to forfeit the property.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  11. The object here is the Hammonds property. I guarantee you the feds will own the property sooner not later. That’s why the Bundy’s got involved. The object of the Second Amendment is to guard the others.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  12. It certainly looks that way, Hoagie. Half of the land in the West isn’t enough for the central government.

    Patterico (39da75)

  13. This is confusing: according to the linked Ninth Circuit decision: “Because the district court erred by sentencing the Hammonds to terms of imprisonment less than the statutory minimum, we vacate the sentences and remand for resentencing in compliance with the law,” yet that sentence was for arson,yet now they are being sentenced under ant-terrorism laws??

    Dana (86e864)

  14. If you want to understand what is happening in Oregon you might want to read Mike Vanderboegh at Sipsey Street Irregulars. Mike is a founder of the III Per Cent Movement. He knows these people. I can’t vouch for all he says but I’ve never found him to be dishonest. He makes a compelling case re the damage this “occupation” is doing to those who support liberty and Constitutional government.

    Anyway, that’s my first comment here at Patterico’s. Great blog peeps! Happy new year to all!

    Craig (acc21b)

  15. Dana,

    I am not an expert but it appears that arson (at least the arson charged here) was made into a five-year crime by the antiterrorism law.

    Patterico (39da75)

  16. But I am more and more despondent over the “narrativization” of pretty much any issue or event today.
    Simon Jester (57277b) — 1/3/2016 @ 4:05 pm

    True that, bro.

    So, one group of people can make up a story about a thug, threaten more than one city with violence, government officials think they need to allow the populace to destroy private property as making a justified statement of some sort,
    and are treated as people with a just cause since all whites are really racists and we’re still in 1862

    and there is a dispute over why and how a few acres of land were set to fire which harmed no one, no private property, and in the long run didn’t harm federal property either

    so who gets 5 years in jail???

    It sounds like if the original trial judge wasn’t bad enough, the 9th circuit is nuts,
    who drove the action for the 9th to review the sentence?????
    Was that some kind of automatic thing??

    When was the last time the 9th did something reasonable??

    MD in Philly (not in Philly at the moment) (deca84)

  17. Does that mean then that the original charge of arson changed, or just that the judge didn’t opt for the more serious part of the anti-terrorism laws, thus give a longer (more proportional) sentence??

    Dana (86e864)

  18. Not having looked at anything, I’ll just say that if one wants to trust Obama to commute a sentence, you better be firmly entrenched in the preferred side of history…

    MD in Philly (not in Philly at the moment) (deca84)

  19. Vandebeorgh, is not copacetic with this form of addressing grievances, of course we can compare the treatment of the Tabligh network, which has been in the news lately,

    narciso (732bc0)

  20. It isn’t arson to set fires to protect your home and crops and it isn’t terrorism to say no thanks when the feds offer to buy your ranch.

    ropelight (4cdf30)

  21. It’s interesting to see the MSM already pointing out lack of comments from GOP candidates on the Oregon situation. No mention about Hillary’s silence.

    https://www.washingtonpost.com/politics/gop-candidates-stay-quiet-on-oregon-standoff/2016/01/03/b8b9806c-b239-11e5-9388-466021d971de_story.html

    Dana (86e864)

  22. I keep forgetting, and then remembering,

    in some ways life is no different from when King David was running for his life and writing down his prayers for God to protect him,

    Being the target of injustice perpetrated by people in power seems to be only a heartbeat away.

    (Yes, David himself was such a perpetrator also.)

    MD in Philly (not in Philly at the moment) (deca84)

  23. apropo of nothing, the folks that made off with Job’s herds, were Sabaens, from an area that is roughly Southern Yemen now,

    narciso (732bc0)

  24. the 9th Circus, shows their nearly infinite wisdom,

    narciso (732bc0)

  25. Just for grins, is there a legal institution or organization which could read these fed attorneys
    out of decent society? Hell, you’d think the bar would have nothing to do with them.

    Richard Aubrey (472a6f)

  26. Supposedly the original deal was the Hammonds were not permitted to appeal, but the Feds did. Didn’t find if the Feds could appeal either. True?

    amr (64cd2d)

  27. chaitred, shows his imminent compassion and sensitivity on the matter,

    narciso (732bc0)

  28. “we’ve established over the past few years that it’s perfectly fine to occupy public property when you’re working for social justice.”

    Colonel Haiku (2601c0)

  29. I think the arson as terrorism thing came about because of ALF/ELF eco-terrorism and the burning down of government buildings and animal research labs.

    Xmas (35fdcf)

  30. This is pretty straightforward as a legal case. Once the jury found them guilty, the judge had no choice but to impose the sentence Congress prescribed. We can dispute whether they should have been charged in the first place, but somebody has to keep those prisons for profit filled and the prison guards employed as the crime rate declines. Five years is the minimum sentence for simple arson in Illinois, too. Considering that it used to be a hanging offense in England and that in ancient Rome they burned arsonists alive, I don’t see much of a proportionality argument.

    nk (dbc370)

  31. For wildlife refuges, …

    [a]pparently owning half the land in the West was not good enough for the feds; they had to have more and more and more and more.

    More likely, the land that the FWS/BLM manages isn’t worth spit for supporting wildlife, so they need more and more land to show some improvement in their aggregate populations. Susie Hammond found a BLM consultant’s report that stated just that: private land was much more productive in supporting wildlife. The BLM hasn’t forgiven her for her audacity. And this disparity in management effectiveness will ever be so. Those office cowboys and girls sucking on the federal teat might have discovered that riding a desk is a lot more comfortable once the days are shorter than the nights, and there’s ice on ponds, particularly on a 7-day work-week. There’s no way that federally managed land will ever be comparable to privately owned land.

    I grew up in Altadena, and so I share your implied concern over wildfires. But for a rancher in eastern Oregon, surrounded by a “wildlife preserve” that is likely neglected and prone to explosive wild fires, which I believe we’ve experienced in recent years, setting and tending backfires to protect your property is just common sense. Assuming you had this view, that backfires were a form of terrorism, you would, no doubt have been selected as a juror, while anyone with my point of view would have been discarded. This was the whole point of a jury of your peers which I presume the judge is responsible for honoring. Instead, the jury was stacked with foolish people with no knowledge of ranching and who appear to have been incapable of understanding what the Hammonds faced.

    It’s such a little thing, isn’t it:

    The Hammonds surrender to serve their five-year sentences tomorrow.

    Not mentioned is that their ranch will be seized tomorrow because they have failed to pay the full $400,000 penalty assessed by your oh so compassionate judge. And even if it wasn’t, I doubt the two women, the child and the young man could run it.

    This judge (jury stacking,) the prosecutor (false charges) and the entire FWS/BLM (extortion, coercion, vandalism, to name a few) would be looking at serious time for their behavior over the past 40 years if they were employed in the private sector. The BLM agent in Denver who posted phony comments on a blog under the name of a man who was a neighbor of the Hammonds, and who once worked for the BLM, is just one instance that calls for justice. You (Patterico) seemed to think such behavior was repulsive when it occurred in New Orleans. Is this ok because this deed was performed by an agent of the BLM and not a prosecutor?

    Ah heck, it’s only five years. And I’m sure that their care of elderly inmates is first rate, just like the Veterans Administration.

    BobStewartatHome (a52abe)

  32. well how did that EPA guy, put it, they needed to ‘crucify’ one utility, to set an example,

    narciso (732bc0)

  33. I think is was Lenin who suggested that hanging 100 kulaks (affluent farmers) on the nearest telephone poles would resolve a lack of enthusiasm for the revolution. This was followed a decade later, after Lenin’s death, by the intentional death by starvation of another 1 or 2 million Ukrainians. These were the same, dismal souls who cheered the hangings when the revolution looked brighter. The EPA is starting slow, but they’ll catch up.

    BobStewartatHome (a52abe)

  34. couldn’t find any contemporary reporting re 2001, but for 2006:

    http://www.predictiveservices.nifc.gov/IMSR/2006/20060920IMSR.pdf

    narciso (732bc0)

  35. Nothing to do with revolution. It was the middle class which put in place the police state and the draconian laws in America in the last forty years.

    nk (dbc370)

  36. narciso, interesting. Did you notice the table on page 8, Fires and Acres Year to Date, the BLM and the USFS managed to host 1918 fires on the lands they “manage” (up to that point,) with a total of 779,246 acres burned, out of a total of 937,450 acres burned. And this was just in the Northwest. Glad to know they’re on the job. I rather doubt Weyerhaeuser would be able to turn a profit if they burned nearly a million acres a year.

    BobStewartatHome (a52abe)

  37. But it’s nature’s way, and the wildlife love it.

    BobStewartatHome (a52abe)

  38. Supposedly the original deal was the Hammonds were not permitted to appeal, but the Feds did. Didn’t find if the Feds could appeal either. True?

    The Ninth Circuit found, and I think the record shows, that the feds never gave up their right to appeal. The Hammonds did.

    Patterico (39da75)

  39. I grew up in Altadena, and so I share your implied concern over wildfires. But for a rancher in eastern Oregon, surrounded by a “wildlife preserve” that is likely neglected and prone to explosive wild fires, which I believe we’ve experienced in recent years, setting and tending backfires to protect your property is just common sense. Assuming you had this view, that backfires were a form of terrorism, you would, no doubt have been selected as a juror, while anyone with my point of view would have been discarded.

    Who are you talking to here? It’s not clear to me.

    Surely you’re not talking to me.

    Patterico (39da75)

  40. Does that mean then that the original charge of arson changed, or just that the judge didn’t opt for the more serious part of the anti-terrorism laws, thus give a longer (more proportional) sentence??

    I honestly don’t know the details. I am guessing based on what I have reviewed. I think they changed the arson laws applicable to this circumstance in the antiterrorism law.

    Patterico (39da75)

  41. i think, i might start writing, like narciso, smart links and analysis, but with a lot of commas,

    Patterico (39da75)

  42. Surely you’re not talking to me[?]

    Yes, I was responding to your analysis. A backfire is not “arson”. This whole thing swings one way or the other on making that distinction, and you repeatedly used the term “arson”.

    Was Waco arson, or an FBI BBQ?

    BobStewartatHome (a52abe)

  43. Heh! http://patterico.com/2012/02/27/more-on-fighting-fire-with-fire/

    It looks to me like the Patterico daughter was correct both literally and figuratively. As far as this case goes, anyway.

    nk (dbc370)

  44. The U.S. Attorney’s one-sided account is here, in its press release.

    A department influenced and controlled by the thing — by the it — in the Oval Office? Pffft.

    Mark (f713e4)

  45. nk, you have a remarkably dangerous mind. Would that …

    BobStewartatHome (a52abe)

  46. If they were black they would already be dead.

    nate (3e9624)

  47. Perry is a lying hateful liar what tells lies.

    JD (34f761)

  48. Perry – you should hang out with Jamie. He is as dishonest as you, not quite as delusional, but every bit as mendoucheous.

    JD (34f761)

  49. An immediate focus will be on Monday’s ISM survey on U.S. manufacturing, which is expected to show the sector is still in contraction after hitting a 6-1/2-year low in November. (USPMI=ECI)

    “It was quite unusual for the Fed to raise rates when the ISM is below 50, (which indicates contraction). And we are likely to see another month of contraction. We have to see how long this will continue,” said Masahiro Ichikawa, senior strategist at Sumitomo Mitsui Asset Management.

    no wonder food stamp is pivoting to guns lol

    failmerica

    happyfeet (831175)

  50. The Hammonds already served their time. Isn’t it double jeopardy to lock them up again for the same crime?

    papertiger (c2d6da)

  51. There are great swaths of land in that corner of California where practically nothing grows except sage brush and Juniper. The ground is littered with porous volcanic rock. You have to pick out the rock to keep cattle. Too cold for a crop. Water is the limiting factor.
    The type of place where the ethanol leaves icicles hanging on the exhaust pipe.

    papertiger (c2d6da)

  52. I don’t consider giving the Hammonds crime a different name as grounds for a second go.

    papertiger (c2d6da)

  53. 54.I don’t consider giving the Hammonds crime a different name as grounds for a second go.

    The feds do it all the time especially with “hate crimes”. Remember the cops in the Rodney King kerfuffle? Didn’t they talk abut it with Trayvon and Zimmerman?

    Rev. Barack Hussein Hoagie™ (f4eb27)

  54. It seems like the real problem here is mandatory minimum sentencing. If we can attack the jury system or the mandatory minimum system, I’m going to go with the latter.

    Leviticus (f9a067)

  55. To me, this whole ‘standoff’ occurring now boils down pretty simply. I’m not thrilled about somebody taking over a government building. But Eric Holder, for instance, did that during his college years and faced no impediment to a public career in law. The ranchers, in an effort to try to save their property, did no real harm and indeed, helped the federal effort to end the fires. So they need to be jailed? The press gave no coverage to the grotesque injustice of this case, and now, a group unaffiliated with the ranchers have taken over an essentially unused building to bring attention to the case. As we’ve been hearing today, now the press is trying to gin this up into a gun-slinging affront to the weird little president’s gun control effort. Sending in National Guard and FBI(with BATF and BLM quivering behind them) seems like an overaggressive move designed to provoke violence, and, I guess, back up the weird little president’s weirdly nonsensical agenda. Maybe the proper place for all this aggressive, violent posturing would be on the border our weird little president refuses to protect. Maybe, just maybe, this stupid posturing will make the federal government look like the dim-witted, over-reacting thugs people have been warning the nation about for the past few years. A government of intelligent people would back off and negotiate an end to this virulent stupidity, as they did when radical college nuts took over the deans’ offices in the 60’s. While I’m not happy with the mostly unused government building being taken over, the people who did so have at least as good a reason as the protected and promoted college radicals of the 60’s.

    millard fillmore (7ebbbf)

  56. This terrorism charge is complete BS, and the 9th Circus has been a joke for a couple decades now, but insofar as land goes, it all belongs to the Feds. The rest of us are basically licensed to use it. If you don’t have an army, you don’t own land. At one time the various states owned the land, kinda sorta, but that pretty much ended in 1865.

    WTP (5ea774)

  57. Patrick, This is very helpful. Excellent reporting, thank you for taking the time to post it.

    Time123 (68c85f)

  58. Isn’t the judge free to reject the guidelines, even if the sentence would not violate the 8th amendment to the constitution? did it go before another judge?

    Sammy Finkelman (67f658)

  59. This looks like a case oof encorcing the law for the sake of enforcing the law.

    Now these people are not petitioning Congress to change the law.

    Sammy Finkelman (67f658)

  60. I find mandatory minimums much more palatable for mala in se like homicide, rape, battery and arson. Especially in the federal system where the judges are political appointees, their primary qualification mostly being the amount of money they bundled for the President’s party, and we are stuck with them for life.

    The problem in this case, if there is one, is that the government had better lawyers. Which is not unusual — AUSAs are a very bright and competent bunch. They steamrolled over the defense.

    nk (dbc370)

  61. mg (31009b) — 1/3/2016 @ 3:43 pm

    . For example, Judge Hogan did not allow time for the jury to hear or review certified scientific findings that the fires improved the health and productivity of the land.

    That could have been on the grounds that it was irrelevant and not a defense. But it certainly should affect the sentence. This did get established on cross-examination anyway.

    Or, that the Hammonds had been subject to vindictive behavior by multiple federal agencies for years.

    Is that a legal defense? If anything, it would be something favorable to the prosecution, providing them a motive to do something malicious.

    (o) Federal attorneys, Frank Papagni, hunted down a witness that was not mentally capable to be a credible witness. Dusty Hammond (grandson and nephew) testified that Steven told him to start a fire. He was 13 at the time and 24 when he testified (11 years later). At 24 Dusty had been suffering with mental problems for many years. He had [been] estranged [from] his family including his mother. Judge Hogan noted that Dusty’s memories as a 13-year-old boy were not clear or credible. He allowed the prosecution to continually use Dusty’s testimony anyway. When speaking to the Hammonds about this testimony, they understood that Dusty was manipulated and expressed nothing but love for their troubled grandson.

    Why was his testimony needed? What did it prove? Did they need some evidence that the Hammonds started the fire? The Hammonds apparently, are not denying that. Did Dusty tetsify that they intended to have the fire spread to public land? That would indeed be problematical. If it becomes a question of whether they should have expected it to spread there, it becomes a real question.

    Hogan & Papagni only allowed people on the jury who did not understand the customs and culture of the ranchers

    This kind of thing is done by people hoping to win civil law suits that they probably should not win.

    All of the jurors had to drive back and forth to Pendleton everyday. Some drove more than two hours each way. By day 8 they were exhausted and expressed desires to be home.

    Day 8 of what? The trial, or jury deliberations?

    Judge Hogan also would not allow the jury to hear what punishment could be imposed upon an individual that has convicted as a terrorist under the 1996 act.

    Legally, that is not supposed to be factor, but of course, it is a very real consideration. And there is the idea around that jury nullification is legitimate.

    You are also leaving out the question of the seriousness of the damage, which ought to be an important consideration.

    The answer seems to be it was very little, and possibly even benefitted the federal land. The Forest Service conducts its own burns now – the policy, followed until about 1988 and the Yellowstone Park fire of 1988, of always putting out fires, being regarded as a big mistake.

    Sammy Finkelman (67f658)

  62. It was a travismockasam just the stevens, Conrad black witchhunt was an abuse of honest services charging.

    narciso (6b5b0b)

  63. millard fillmore (7ebbbf) — 1/4/2016 @ 7:13 am

    Maybe the proper place for all this aggressive, violent posturing would be on the border our weird little president refuses to protect.

    Now, wait, thats also a case of enforcing the law just for the sake of enforcing the law. According to the Guiardian, some 83 people have been sent back to the deaths. Explanation: Fear of being killed by criminals is not grounds for asylum.

    Sammy Finkelman (67f658)

  64. It seems like the real problem here is mandatory minimum sentencing.

    No, the real problem, Leviticus, is the philosophy/ideology of far too many of the jurists populating the court system. When common sense is lacking, invariably — invariably — it involves a judge either from your side of the political spectrum or a variety of squish-squishes, particularly those who, as one example, believe the word “conservative” needs to have the prefix of “compassionate.”

    Mark (f713e4)

  65. BobStewartatHome (a52abe) — 1/3/2016 @ 9:59 pm

    Was Waco arson, or an FBI BBQ?

    The government claimed that the Davidians started the fire, which is almost certainly a lie. And I think it was arson and not an accident, and that’s why Vincent Foster was so scared.

    The fire was started by injecting CS tear gas, for the first time that day, shortly before noon.

    CS tear gas has the property that it can start a fire, but not at too high concentrations. When the CS tear gas reached the kerosene lanterns, fire broke out, and it broke at numerous points at about the same time. I believe President Clinton had the advice of some fire experts in starting the fire. It could be the same people who later issued a report on the fire, and as you may know, the building was knocked down before anybody else could examine it.

    They also had to hide the fact that Davidians had not fired any shots on April 19, 1993, which was the excuse for trying to end the siege that day. Knocking the compound down also prevented a closer examination of the events of Feb 28, 1993.

    The carefully crafted orders that Janet Reno had signed on April 16, after many people at the Justice Departtment went home for the weekend, said that the perimeter of the area held by the Branch Davidians was supposed to be shrunk …

    BUT

    IF

    ….the Davidians fired, then the FBI (Hostage Rescue Team) could fire back, OR inject tear gas.

    And the big defense the FBI had that they were not malicious was that they had not fired in response.

    Listen, the reports are all full of lies, with supposed witnesses to the setting of the fire, and this leaked story to the New York Times about people in DJ HQ hearing the flammable liquids being poured is a lie, too.

    http://www.nytimes.com/1993/04/26/us/last-hours-in-waco-a-special-report-inside-the-cult-fire-and-terror-on-final-day.html?pagewanted=all

    A complete pack of lies here. I don’t know what little parts (like the announcements over the PA system) may be true. You know, none of these things that people at DOJ said anonymously have been repeated for the record.

    Clinton did this all, I think, principally to protect Jay William Buford, head of the Bureau of Alcohol, Tobacco and Firearms in Little Rock, and one of the chief planners of the raid, whose name is on the Waco search warrant, who had, if KWTX-TV videotape of Feb 28, 1993 is properly understood, murdered 3 of his own men in front of cameras. Well, he fired at them after they went into a second story window.

    Buford had been in charge of the investigation of the first attempt to murder Alice McArthur in 1982.

    Sammy Finkelman (67f658)

  66. There’s a reason to believe that Mary (Lee) Orsini, the woman who arranged the second, and successful, murder attempt on Alice McArthur was close to Bill Clinton.

    I say this because – for one thing – she claimed to have been carrying on an affair with Jim Guy Tucker, (she was already famous for probably murdering her husband) and as result of this claim, Tucker came in third in the Democratic primary for Governor on May 25, 1982 and did not make the runoff. This immmensely helped Bill Clinton in his comeback attempt.

    And somebody important was very interested in that case later on:

    http://www.arktimes.com/ArkansasBlog/archives/2011/01/25/carol-griffee-1937-2011

    MH: Well, I want to make sure I ask you this question. There’s an often-told story about you coming to work and walking across the parking lot with a shotgun.
    CG: Absolutely!
    MH: What was that about?
    CG: I carried a double-barreled shotgun.
    MH: Was that . . .?
    CG: I was being watched. No, this was just during the McArthur thing.
    MH: Right.
    CG: I was being watched, and I knew it.
    MH: Who was watching you?
    CG: I have a feeling it was Orsini, but I don’t really know for sure. But I was quite aware of it. Not only that, but there was one day when John Woodruff had to come to the house to get me out of my house, that’s how scared I was! [Laughs]

    The biggest reason, of course, is that this connection would provide a reason for Clinton to protect Buford in 1993.

    Sammy Finkelman (67f658)

  67. They are white males. They may have hunted animals. They allowed a fire to touch sacred BLM earth. They no doubt possess guns.

    They want clemency from Obama? Don’t they read the news?

    Patricia (5fc097)

  68. The only things that should be considered here are the extent of damages and whether or not the act was “intended” to do harm or damage. If someone get’s in a car accident that causes death, the first thing that should be considered is whether or not there was intent. If not, it should be considered no more than “manslaughter”. If no death or injuries, and no intent, then only a fine should be Imposed.

    So, applying this same train of thought, here we should be looking at the extent of damages (was anyone killed, hospitalized, or hurt whatsoever? Nope, just some bushes and/or trees burnt). The damages were so minimal that no charges can be justified. Secondly, was there intent. The jury says that there was…well OK, they intentionally damaged a $100 worth of “Junipers” so throw the book at them and make them pay 10 times that amount ($1,000) as a fine and give them 30 days in jail…but that’s not what happened is it? How unjust is a law if it does not take into consideration both the extent of damages and intent? These poor guys have been (and still are) being crucified for a fire that did virtually no damage, and at best, they intended to do this minimal damage…far less damage than a naturally set fire by a lightning strike. What is wrong here was not the act committed, but instead, the wording and guidelines set in law for this lack of judgement. Because this law was written without thought…it covers no contingencies and has one absolute penalty only! The Judge saw this as being a poorly written law and took it upon himself to account for this failure in its text.

    How ridiculous and shameful that this should ever have gotten this far out of hand. The law (as written) should have been sent back to those who wrote it, long before it’s enactment, with a note attached which clearly stated says…”FIX THE DAMN THING, and don’t ever send me another piece of legislation like this again!!”

    Mark (8073aa)

  69. But, but, .. Patricia, fire is beautiful, … it is natural! It comes from the heavens in the form of lightning! It is a mystic link with our primordial past! As narciso’s link at #36 (see Table 8) demonstrates, the BLM/USFS was delighted to have almost 800,000 acres under their tender care burn in the Northwest in the first 9 months of 2006. And fire was the natural answer to all those neglected pine trees that Mother Nature had infected with beetles. This is Natures Way, we must Honor it.

    Of course, I have noticed that the deer, opossums, rabbits, raccoons, rats, mice, and gophers by the score, seem to enjoy our yard, with its lawns, roses, gardens, fruit trees, berries, and a small vineyard, a lot more than the blackberry brambles that Nature plants on her acres. And the hawks and song birds also seem to enjoy my yard more than the brambles, but I’m probably missing something.

    BobStewartatHome (a52abe)

  70. Sorry, autocorrect didn’t like patterico

    Time123 (68c85f)

  71. Mark, don’t you find it strange that the 9th circuit is suddenly focused on the wording of a law? Hasn’t the current incumbent in the WH proclaimed that all he needs is cell phone and a pen to override or ignore whatever he pleases? This appears to be a pure power play by the goons in the federal government, crossing from agencies to departments to the judiciary. They may not be able to build a website, but they sure as heck know where we live.

    And a majority of Oregon voters probably think this is good thing. Sad to say.

    BobStewartatHome (a52abe)

  72. Yes, I was responding to your analysis. A backfire is not “arson”. This whole thing swings one way or the other on making that distinction, and you repeatedly used the term “arson.”

    They were convicted of arson. I have some questions about the case but I don’t reject the jury verdicts based on one-sided accounts that fit my political prejudices. I wasn’t at the trial and neither were you.

    That does not mean I consider backfires a form of terrorism.

    Patterico (21f6ec)

  73. The charges against the Hammonds look pretty ridiculous to me. It’s common practice in modern land management to burn out excessive undergrowth to mitigate potential wildfire damage, control the spread of exotic plants and regenerate habitat for the benefit of native plant and wildlife species. In my area there are frequent “controlled burns” due to the risk of wildfires started by lightning strikes or to clear out exotic invasive scrub. Sometimes these burns get out of control and spread, but you never see the government entities involved charged with arson, fined 400k and sent to prison for 5 years. Nor do firefighters who set backburns to control the spread of existing wildfires get charged or fined. Considering the backburn affected one measly acre of public land this situation stinks of government overkill and harassment.

    Damselfly (5cba1a)

  74. Congress ought to pass a law saying that whenever the Feds get more land they have to get rid of the same (or double?) that amount of land in the same state.

    And Obama ought to issue a pardon here. It’s not Judge Hogan’s job to do so, but his comments seem persuasive. The FBI director ought to recommend a pardon.

    Andrew Hyman (b12b60)

  75. “Considering the backburn affected one measly acre of public land this situation stinks of government overkill and harassment.”

    Again: mandatory minimum sentencing. Seems like asinine overkill? It probably is. It is also probably asinine overkill in 90% of the drug cases that got everybody slavering about “dropping the hammer” with mandatory minimums in the first place.

    So, hopefully this case will cause people to pause and think about the stupidity of “mandatory minimum sentencing” in a judicial system that inevitably places discretion in the hands of judges and/or juries when it comes to assessing liability. We aren’t going to bypass human discretion in our legal system – so why would we want to do so at the pointiest end of it?

    Leviticus (f9a067)

  76. You are linked at PowerLine,
    here was one of Paul Mirengoff’s thoughts:
    An armed occupation — or indeed any unlawful behavior — is an inappropriate response to an unjust outcome in a legal proceeding.

    I think only extreme tyranny of sort warrants being armed, and truly exceptional to justify use.

    But civil disobedience and being arrested for “breaking the law” was once thought to be a good thing if the cause is just.

    I saw one person of the occupiers interviewed last night, when asked if he was there to shoot and kill, he said something to the effect of “No, I came here to die”
    Unclear if he meant to die fighting, or refuse to leave until the feds had to kill him.

    MD in Philly (not in Philly at the moment) (deca84)

  77. What if the leaders of a political organization counseled together about the framework of a “long game” strategy for positioning the opposing political party?

    They might engage in creating for that opponent a particular reputation (e.g. sexist, racist, xenophobic, etc.) that would be found concerning by their own base and independents alike. They might conjecture about actions by certain agencies of government on issues (gun control, amnesty, open borders, imposing laws and regulations that invalidate religious freedom, etc.) that would likely trigger disproportionate reactions by the base of the opposing party. They might explore how could the media be manipulated (if even necessary) to cover said reactions in a way that lacked nuance and balance? Done correctly, synchronizing the actions with election cycles might sway some voters away from the opponent and into your party.

    Not that this is even remotely possible…

    in_awe (faf180)

  78. Leviticus, the primary issue here is actually more akin to wrongful prosecution. For some reason in the case of these two men, the government has taken common practices of controlled burning and backburning and somehow turned them into arson/terrorism, which requires the mandatory minimum of five years. I really don’t understand why these guys were charged criminally. At most, they might be subject to a fine to cover damages in the controlled burn fire, which were negligible. Why they were even charged for a backburn fire to protect their property is a mystery to me, and really stinks if it’s true that the government has been trying for years to buy their land to expand the neighboring wildlife refuge.

    Damselfly (5cba1a)

  79. If anyone had a conscience, a mistrial would be declared and they would start over. It is apparent the ranchers were negligent and liable for some damages. I don’t think that is at all in question. 500 juniper trees aren’t worth all that much… not sure the numbers. You have a lot of people reading this and are aghast thinking about 140 acres getting burned down, but in this area, that’s like a branch getting knocked out of your tree in the suburbs. It’s nothing in the scope of things.
    That being said, what troubles me the most is that the INTENT is the reason we are SUPPOSED to convict people of terrorism, and that appears to be completely outside the scope of these actions. It’s downright obvious to anyone with any common sense at all that the Fed was pressuring them for many years because they won’t let go of that spot, right in the middle of their big land grab. There is a LOT of history here, everyone should go read it.
    Besides all of that, it’s time to put a stop of federal land growth. From now on, they need to sell off 2 acres for every new one they want to claim, market value equivalent too. And they should only be allowed to use the money from the land selloff to buy the new ones.

    Dave R (f6c9b5)

  80. (#OccupyNowheresville!)

    *snicker*

    Patrick in Michigan (6def51)

  81. #68: Patterico, as is appropriate, you have much more respect for the law than I do. We are on dangerous ground when old folks like me, who vote and participate in our electoral system, are losing confidence in “our” government. We are approaching the point where the only people who respect these clowns in robes are fellow lawyers, who must show respect in order to do their jobs.

    If I were the judge who did this to the Hammonds, I would NOT be able to sleep at night, nor would I have any affection for my choice of career. An honorable man would resign rather than pass such a judgment. And this assumes that there are no fatal consequences associated with the imprisonment imposed on the innocent victims of his jurisprudence. It sickens me to think that we have federal employees who take great pleasure in the injustice they have perpetrated. Unlike nk, I do not look on this a game, where one side wins and one side loses depending upon the quality of their legal representation. If the populace willingly supports its government, it must have faith in the integrity of the system. This integrity has been cast to the winds in eastern Oregon.

    BobStewartatHome (a52abe)

  82. Can you post a map for us of how much US land CHINA now owns?

    bdunz (1c1a4e)

  83. 78.Can you post a map for us of how much US land CHINA now owns?

    Don’t need one, the answer is zero.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  84. There are Chinese people and businesses that own land here but not China.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  85. What was the driving force for it to be reviewed by the 9th? Was the prosecutor not satisfied with the sentence?
    And why now, 4 years after the trial which was years after the events?

    As Hoagie I think said, is this simply a step by step intimidation/persecution until they are forced off of their land?
    Why does this sound like a RICO case it it was a private enterprise doing it?

    MD in Philly (not in Philly) (deca84)

  86. Was appeal to the SCOTUS already denied?

    MD in Philly (not in Philly) (deca84)

  87. Sorry, as someone who has actually held BLM leases in the past I have zero sympathy with the view that such lands are the property of the leaseholder,. While that may or may not have been how the Hammonds acted it has certainly been how I see the actions of the Bundy family, and I fully understand why the Hammonds would want to distance themselves from such ‘friends’.

    And I thought that AEDPA was all about how cases are to be reviewed rather than creating substantive offenses of its own. That is certainly the effect AEDPA has had on the federal habeas system, and would make a great deal of sense in this context. The district court ruled that 5 years would be so unreasonable in this case as to be an 8th amendment violation, the appeals court disagreed, and well the appeals court is in a Superior position to the district court.

    Soronel Haetir (86a46e)

  88. Did you say RICO, MD in Philly?

    RICO was originally sold as a way to bust the mob but once the mob was busted RICO morphed into a all-out cluster-f*** to crush tax evaders, drug dealers, financial crimes and just about anything the government wants to apply it to. Know why? Somehow by hook or by crook or most likely trickery it “passed Constitutional muster” (lawyer speak for ‘we snuk one past ya’) and it included the most prized and precious word to lawyers, law enforcement and governments large and small all over the fruited plain: FORFIETURE. When the law hears that word they ejaculate. It’s involuntary. They know they can steal a mans business, his house, his car, his jewelry, furniture and last penny and there’s not a damn thing he can do about it. Then law enforcement divvies up the spoils (last year about 10 billion citizens dollars) among themselves and moves on to the next target. (after the cops and lawyers scarf up Ferrari’s at “government auctions for $100 for their kids).

    It’s great to be able to make a living by the rules you make up yourself.

    Rev. Barack Hussein Hoagie™ (f4eb27)

  89. Yes, Rev., I said RICO, as in this case it seems like the feds are acting like the mob to intimidate and steal in a coordinated and conspiratorial manner.

    And yes, it was a metaphorical statement, not something that I thought actually fit the proper application of the law.

    MD in Philly (not in Philly at the moment) (deca84)

  90. I don’t see where the Hammonds acted as if the federal land was theirs and used it to their own advantage to the detriment of the fed government, certainly not to the point of a total of 10 years in jail and I guess the forfeiture of their property in lieu of a $400,000 fine.
    But I am going by 2nd and 3rd hand info, I eagerly admit.

    MD in Philly (not in Philly at the moment) (deca84)

  91. china owns a lot of failmerica’s debt cause of failmerica is not very good managing finances

    happyfeet (831175)

  92. this is the prosecutor that appealed the sentence to the 9th circus,

    http://www.oregonlive.com/portland/index.ssf/2012/01/oregons_top_federal_prosecutor.html

    narciso (732bc0)

  93. So, narciso, was this person the one who took it to trial, or did she come on the seen after the original trial and sentencing?

    MD in Philly (not in Philly at the moment) (deca84)

  94. seen=>scene

    MD in Philly (not in Philly at the moment) (deca84)

  95. Thanks, narciso,

    strange

    MD in Philly (not in Philly at the moment) (deca84)

  96. Well, as P said originally, the supposed facts are in conflict.
    But thanks.

    MD in Philly (not in Philly at the moment) (deca84)

  97. as with many of these cases, like the Zimmerman case, that the Treehouse, really fleshed out the backstory, they are maddingly opaque,

    narciso (732bc0)

  98. The feds made it sound like they were reckless and put federal fire fighters in danger, the Hammond’s said no feds were involved…
    Sounds like the feds argued what “might have happened” had the Hammond’s not been responsible (I.e., acting responsibly)

    MD in Philly (not in Philly) (deca84)

  99. The Hammonds appear to be ordinary people with no particular goals other than getting on with their lives, five years hence. The affidavit in the ConservativeTreehouse suggests that they have been coerced into silence with threats of hard time in a maximum security prison, and probably, if the feds hold to their normal m. o., additional threats to the wives and children if the father and grandfather don’t “cooperate”. I saw a video of the Grandfather reporting in to the San Pedro prison, and he seemed embarrassed and resigned. I hope he survives his imprisonment. He doesn’t appear to be a strong-willed person, but then he’s already served significant time, and he knows what he has to do.

    Judge Ann Aiken must be so proud, acting as the hammer for Amanda Marshall and Frank Papagni’s anvil. There is nothing uplifting or beneficial in any of this. It is like watching a neighbor put down an old, trusting pet because they want one with shorter fur.

    BobStewartatHome (a52abe)

  100. For the neighbors, when it comes time to burn adjacent to the federalies pick out a partially decaying, but not dead, tree upwind of where you plan to backfire. Then use a rocket trailing a wire to induce a lightning strike.

    You didn’t start that fire.

    papertiger (c2d6da)

  101. The out of control prosecutors in WI played all of those shut up or we’ll make it worse for you games in their bogus John Doe investigation of.conservatives.

    MD in Philly (not in Philly) (deca84)

  102. That is interesting about inducing lightning ⚡ with an extremely long mobile lightning rod.

    MD in Philly (not in Philly) (deca84)

  103. “might want to read Mike Vanderboegh at Sipsey Street Irregulars. ”

    Might want to read someone who isn’t dependent on welfare.

    Jon H (41fb4c)

  104. Don’t forget to treat that tree with kerosene and a touch of neem oil (for beetles of course) prior to launch.

    BobStewartatHome (a52abe)

  105. MD wrote: “I saw one person of the occupiers interviewed last night, when asked if he was there to shoot and kill, he said something to the effect of “No, I came here to die”
    Unclear if he meant to die fighting, or refuse to leave until the feds had to kill him.”

    Did he bring a gun? You don’t need a gun if you’re just there to die, not kill.

    Jon H (41fb4c)

  106. The Bureau of Prisons is its own bailiwick. It decides where prisoners go. There are (were?) lawyers who specialize in negotiating with the BOP where their clients will be placed. I doubt that the prosecutor or the judge has much say in the matter.

    Clemency petitions, as Patterico suggested, are what’s screened by the DOJ, and the President acts according to its recommendation. (Usually. Marc Rich was a notorious exception.) I’ve done clemency petitions. They’re an exercise in humiliation: Have mercy on me, Government, according to your great mercy and loving kindness. I confess that I have sinned against you, my lord and master, and my heart is filled with repentance ….

    nk (dbc370)

  107. yes elian gonzalez, randy weaver and the bundy family all concurr on that point,

    narciso (732bc0)

  108. Does that mean then that the original charge of arson changed, or just that the judge didn’t opt for the more serious part of the anti-terrorism laws, thus give a longer (more proportional) sentence??

    Neither. The charge was arson, and the anti-terrorism law sets a 5-year minimum for that. The judge departed from that minimum, and the government appealed and won.

    What was the driving force for it to be reviewed by the 9th? Was the prosecutor not satisfied with the sentence?

    Exactly. The sentence was well below the minimum that Congress set, so the prosecutor appealed. Nothing wrong with that. I agree with the judge that a 5-year sentence would shock the conscience; evidently the prosecutor disagreed, and the 9th circuit didn’t think it relevant.

    As I understand it the issue in the appeal was whether a 5-year sentence for arson is so disproportionate as to be unconstitutional, and the obvious answer to that question is “no”. 5 years for arson may be perfectly appropriate in most cases. The trial judge thought it was unconstitutionally disproportionate here, because of the unique circumstances of this case. The appeals court (if I understand correctly) said that it doesn’t matter, so long as it’s not disproportionate in general.

    Milhouse (8489b1)

  109. Conservative Nuthouse is not a reliable source for anything. It’s done some good reporting, but also some that was completely off-the-wall. In the Zimmerman case it was the source for the bizarre notion that Skittles™ and Arizona™ watermelon drink are the ingredients of “purple drank”. It was also the source for the idea that Martin might have thought Zimmerman was planning to rape him (parsing “white-ass cracker” as “white ass-cracker”).

    Milhouse (8489b1)

  110. The Hammonds already served their time. Isn’t it double jeopardy to lock them up again for the same crime?

    No, it is not. They were only in jeopardy once. Double jeopardy means the government can’t appeal an acquittal. It does not mean it can’t appeal a sentence that it thinks is too lenient.

    Milhouse (8489b1)

  111. it wasn’t arson, in the sense of a intentional destruction of property, we begin there, and we move forwatd

    narciso (732bc0)

  112. nk, it’s too bad you weren’t the Hammonds lawyer. The crew they hired look to be fairly marginal. Perhaps they didn’t know that Papagni was just passing gas about his threats of harsher confinement. Or maybe the Bureau of Prisons under Obama isn’t the vestal virgin you imagine?

    Justice in Amerika.

    But we mustn’t forget the beneficial aspects of imprisonment. When Conrad Blake appeared before his trial judge during an appeal, she commented that he looked much better, suggesting that the prison regimen had improved his life. No doubt she believed it. She probably thinks it would be beneficial for all sorts of conservatives. But he got his vengeance once out of the country with his book, A Matter of Principle, which I recommend.

    BobStewartatHome (a52abe)

  113. it wasn’t arson, in the sense of a intentional destruction of property

    1. The prosecution claimed that the first fire was. The jury may or may not have agreed.
    2. As far as I know, at least under federal law intent to destroy property is no longer an element of arson.

    Milhouse (8489b1)

  114. Ohmigosh. Five years is the minimum. As in least. The maximum under the AEDPA is 25, and that’s non-consecutive and that’s without enhancements. If the prosecutor had asked for and the Hammonds had gotten stiff enough sentences, they would have been in danger of going to a maximum security facility. Length of sentence is the primary criterion used by prisons to classify prisoners.

    nk (dbc370)

  115. I just re-read portions of Black’s book, and my memory wasn’t accurate. Judge St. Eve said that prison had made Black a “better person”, no comment on his appearance. This sorry jurist must have used her feminine intuition to ascertain this startling factoid about the man she would lock up for 42 months, even after the Supreme Court threw out virtually everything that had happened in her court. Black’s comments generally on the abuses of the U. S. “criminal” justice system are spot on for the Hammonds. Well worth the time.

    BobStewartatHome (a52abe)

  116. I wish the republicans had the courage of these real Americans. Republicans only fight to harass conservatives. What a pathetic group of con men the republican party has created. Yes you republican voters are to blame as well. Gutless and traitorous thats the republican battle cry. Petulant losers.
    More American militia will be needed to get this country back from all the hacks.
    Lock and Load Mfers.

    mg (31009b)

  117. What is not being told is the natural resources that the Hammond acreage holds. There is Natural Gas, raw uranium, natural occurring mercury and more. Right now international financial big wigs are buying up precious metals at an alarming rate. China has eyes on the gas and gold.

    Mary (37c58f)

  118. Jon H.-
    Good point.
    The person did not have a gun while being interviewed.
    In the episode in Michigan years ago the farmers had their rifles and shotguns, which communicated clearly that they were not going to politely stand aside, though I don’t know how many would have actually used their weapons had push come to shove.

    MD in Philly (not in Philly) (deca84)

  119. What’s the story with the tattoos? Did Hammond Junior skin them off the kid or just beat him to make him go to laser removal? And why? Are they strict “Thou shalt not make unto thee any graven image” types?

    nk (dbc370)

  120. More from Conservative Nuthouse? It’s not at all rare to appeal a sentence that’s well below the statutory minimum. On the contrary, it should be a no-brainer, if you’re a prosecutor. It would probably be misconduct not to appeal.

    Milhouse (8489b1)

  121. More from Conservative Nuthouse?
    Not a site for the progressive rino elite.

    mg (31009b)

  122. You mention the issue that the feds own most of those Western states, but you don’t mention that they failed to get permission of the states before acquiring the land, as required by the Constitution (Art. I, Section 8, next to last clause).

    Also, the jury asked what the possible sentence was but was refused that information and ordered to hurry up and reach a verdict. That ought to be grounds for a mistrial by itself.

    jdgalt (ee7f42)

  123. Also, the jury asked what the possible sentence was but was refused that information and ordered to hurry up and reach a verdict. That ought to be grounds for a mistrial by itself.

    I’d bet a good bottle of scotch the latter part of that assertion (from Conservative Treehouse) is false. Ordered to “hurry up and reach a verdict”? That did not happen. Don’t believe everything you read that supports your politics.

    Refused information on the possible sentence? Yes, that happened. Sentencing is not the jury’s concern when deciding guilt. You could argue it should be, but it isn’t, and the idea that refusing to give the jury something they never get is grounds for a mistrial is misguided, to be kind.

    Patterico (86c8ed)

  124. frankly if it were other figures, one would give them the benefit of the doubt,

    http://www.oregonlive.com/portland/index.ssf/2015/04/oregon_us_attorney_amanda_mars.html#incart_story_package

    narciso (732bc0)

  125. You mention the issue that the feds own most of those Western states, but you don’t mention that they failed to get permission of the states before acquiring the land, as required by the Constitution (Art. I, Section 8, next to last clause).

    Sigh. This again? There is no such requirement. You have either (1) not bothered to read the constitution yourself, (2) you are lying through your teeth, (3) you are a “patriot movement” nutcase who is incapable of reading and comprehending simple English. The federal government does not need anyone’s permission to buy land, anywhere in the world. Nothing in the constitution requires it. And certainly the Exclusive Legislation clause does not require it. Nor is it limited in the purposes for which it may acquire land, so long as it can be rationally related to one or another of its legitimate functions.

    Milhouse (8489b1)

  126. Also, the jury asked what the possible sentence was but was refused that information

    That’s right. Juries are never told that. They are not supposed to know it.

    Milhouse (8489b1)

  127. Patterico, what’s your opinion on the claim that the defense was limited to one day of evidence, and wasn’t allowed to call witnesses about standard fire management practices? It sounds like complete BS to me.

    Milhouse (8489b1)

  128. More from Conservative Nuthouse?
    Not a site for the progressive rino elite.

    Yes, I agree. Interesting thread. I’ve read quite a bit about it elsewhere.

    I guess this is just another “conservative nuthouse.”

    The drama is bringing attention to legitimate grievances, especially the appalling federal treatment of the Hammond family. The Hammonds’ problems trace to 1908, when Theodore Roosevelt set aside 89,000 acres around Malheur Lake as a bird refuge. The government has since been on a voracious land-and-water grab, coercing the area’s once-thriving ranchers to sell.

    The feds have revoked dozens of grazing permits and raised the price of the few it issues. It has mismanaged the area’s water, allowing ranchlands to flood. It has harassed landowners with regulatory actions that raise the cost of ranching, then has bought out private landowners to more than double the refuge’s size.

    The Hammonds are one of the last private owners in the Harney Basin, and they have endured federal harassment over their water rights, the revocation of their grazing permits, restricted access to their property, and prosecutorial abuse.

    In 2001 the family told authorities it planned to set a managed fire on its land to fight invasive species. The fire accidently spread over 139 acres of public land before the Hammonds extinguished it. In 2006 the family tried to save its winter feed from a lightning fire by setting “back fires” on its property (a common practice), which burnt an acre of public land.

    Those darn conservatives. Always wanting to live without the help of the feds.

    Mike K (90dfdc)

  129. So when the law abandons and no one else can help, call the a team?

    narciso (094d9b)

  130. Thanks for that excerpt and link.

    MD in Philly (not in Philly) (deca84)

  131. Like I said, I’ve held BLM leases in the past, I see absolutely nothing wrong with changing how many animals can be grazed on a parcel (at least for future grazing) or for raising the price of such grazing. In the past such permits were priced so low as to be a major subsidy to the rancher, they were far below what could be obtained under market conditions (much like mining concessions have in the past been vastly underpriced – I don’t know if that is still the case). There is, however, a large segment of the ranching population that sees BLM land as private extensions of their deeded property. Complaints about changes in how many animals can be grazed come very close to that line in my mind, the land simply does not belong to the rancher, nor is it theirs to do what they please with even while leased.

    Soronel Haetir (86a46e)

  132. Are you claiming that the Hammonds have been treated fairly and appropriately?

    Or are you saying don’t be quick to buy into everything that the young Bundy and his occupying group would claim?

    MD in Philly (not in Philly) (deca84)

  133. it parallels the handling of the Bundy family, where they are the last homesteaders, and we know the conflicts in that case,

    narciso (732bc0)

  134. #132: The latter for sure, I really haven’t seen enough trustworthy material on the Hammands to have formed an opinion about the former.

    Soronel Haetir (86a46e)

  135. what was the pressing nature, to redefine a ‘backfire’ as arson, why are they the last family on that property,

    narciso (732bc0)

  136. nazis gotta natz my friend

    happyfeet (831175)

  137. I wonder if Patterico and the other lawyers in the audience would speak to this issue:

    Does the Hammond’s mens rea meet the U.S.C. 18 § 844 (f)(1) criteria of “[w]hoever maliciously damages or destroys …”?

    It seems to me that only contorted and motivated reasoning would allow one to construe the Hammond’s fire-setting actions as having been taken “maliciously”.

    See also:
    http://www.economist.com/news/united-states/21640365-criminal-code-expands-intent-often-ignored-what-were-you-thinking
    http://rightoncrime.com/2015/12/our-voluminous-laws-and-the-need-for-mens-rea-reform/
    http://caselaw.findlaw.com/us-10th-circuit/1312105.html

    Thurston (e3082b)

  138. 138:
    If you credit the testimony as related at https://popehat.com/2016/01/04/what-happened-in-the-hammond-sentencing-in-oregon-a-lawsplainer/ then yes I would say malicious is an entirely appropriate description.

    From the link:
    Although the Hammonds claimed that the fire was designed to burn off invasive species on their property, a teenage relative of theirs testified that Steven
    had instructed him to drop lit matches on the ground so as to “light up the whole country on fire.” And the teenager did just that.

    I agree with the appellate standard of crediting juries with having done a conscientious job. So given that the jury evidently believed that particular item I am not inclined to second guess it, particularly since the jury acquitted on some charges and could not reach a verdict on others. I view that pattern as evidence that the jury members took their job with due seriousness rather than being in a rush to believe the government.

    Soronel Haetir (86a46e)

  139. It’s not clear whether the jury believed the prosecution version of events, or they believed the Hammonds’ version but decided that was arson anyway, or they thought the truth might lie somewhere in between.

    Milhouse (8489b1)

  140. It’s significant to me that the Hammonds waived their right to appeal except on the issue of ineffective assistance counsel. (Which, BTW, is a very hard row to hoe on direct appeal — basically the record has to show that defense counsel slept through the trial.) They were not happy with their lawyer(s), but it does not necessarily mean that he was a bad lawyer. It could mean that they had their own ideas about how the trial should go and they were not receptive to being told “that’s not the law”, “that’s not admissible”, or “that’s not the right procedure”. Kind of like the Conservative Treehouse stuff.

    nk (dbc370)

  141. Yes, that is the government’s story. We’re already aware of it, as you would know if you read the article. But is it true? You don’t know that, and nor do we, any more than we know that the Hammonds’ story is true.

    Here’s one thing that struck me, though. About the second fire they were convicted of, by the government’s own admission, “According to the U.S. Attorney’s office, Hammonds’ motive for setting the fires was to protect their winter feed.” Isn’t that a good reason for setting it? What else should he have done? Let his winter feed burn up?!

    Milhouse (8489b1)

  142. Never plead guilty. Which was what they did in practical terms when they waived their right to appeal. But even if they had not waived it, the conviction would have been upheld. The standard of review is: Viewed in the light most favorable to the prosecution, does the evidence on the record support the jury’s finding of guilt beyond a reasonable doubt? And we’ve already discussed that the courts did not have the authority to ignore the mandatory minimum. Like Patterico suggested, the only path open to them now is executive clemency.

    nk (dbc370)

  143. nk (dbc370) — 1/7/2016 @ 8:22 am

    And we’ve already discussed that the courts did not have the authority to ignore the mandatory minimum.

    If their lawyer told them that the judge did have authority to give them a lower sentence, is that ineffective assistance of counsel?

    The judge did give them a lower sentence, but only by invoking the 8th amendment, which is hardly an open and shut case. If the government had chosen not to appeal, it would have stood.

    If counsel told them that the government wouldn’t appeal the sentence – i.e. “they never do”, or that they couldn’t – “it’s implied” – would that be ineffectove assistance of counsel?

    Sammy Finkelman (dbec95)

  144. Regarding the Nephew’s testimony. From the affidavit of William Goode.

    Federal attorneys, Frank Papagni, hunted down a witness who was not mentally capable to be credible. Dusty Hammond (grandson and nephew) testified that Steven told him to start a fire. He was 13-years-old at the time, and 24-years-old when he testified (11 years later).

    At 24 Dusty had been suffering with mental problems for many years. He had estranged his family including his mother. Judge Hogan noted that Dusty’s memories as a 13-year-old boy were not clear or credible.

    However, Judge Hogan allowed the prosecution to continually use Dusty’s testimony. When speaking to the Hammonds about this testimony, they understood Dusty was manipulated and expressed nothing but love for their troubled grandson.

    Now, does it pass the smell test that Steven Hammond, after calling the Fire dept. to alert them that he would be performing a routine prescribed burn on his own property, would proceed to maniacally in Dr Evil fashion tell his son Dusty to drop matches as if to burn down whole country down?

    Seriously?

    And after losing control of the fire to the point it spread to the Public land, the Evil Maniac repented and personally put out the fire that was meant to arsonize the entire country?

    Again, Really?

    If Judge Hogan was not a typical Bureaucrat allied with team fed, he would have heeded his stated observation that Dusty was not credible and realized if he did say those words that it was a product of spite due to his estrangement, and would have dismissed the witness testimony as biased and inadmissible. Which is something any reasonable person can understand in retrospect I venture.

    Jester (5cd903)

  145. Judge Hogan noted that Dusty’s memories as a 13-year-old boy were not clear or credible. However, Judge Hogan allowed the prosecution to continually use Dusty’s testimony.

    That is appropriate. The judge can point out to the jury a witness’s problems, but it’s up to the jury how much to believe him.

    Now, does it pass the smell test that Steven Hammond, after calling the Fire dept. to alert them that he would be performing a routine prescribed burn on his own property, would proceed to maniacally in Dr Evil fashion tell his son Dusty to drop matches as if to burn down whole country down?

    It makes perfect sense. The prosecution’s case was that he made the call after the fire had had time to burn the evidence of the illegal hunting. It’s perfectly credible that an arsonist would make such a call, in order to cover his arson.

    And after losing control of the fire to the point it spread to the Public land, the Evil Maniac repented and personally put out the fire that was meant to arsonize the entire country?

    No, he didn’t lose control of anything. It was always meant to burn public land, because the whole point was to destroy the evidence. When it had done so he put it out and then pretended it had been a controlled burn on his own property that accidentally got out.

    If Judge Hogan was not a typical Bureaucrat allied with team fed

    This is the sort of paranoid talk that casts doubt on your whole case. If Judge Hogan had been a “typical bureaucrat allied with team fed” he would certainly not have deviated from the statutory minimum sentence, to which the Hammonds had already agreed! The fact that he did so proves that he is not such a person, and any narrative that paints him as one is by definition implausible.

    Milhouse (8489b1)

  146. The Hammond’s claim that they called the fire dept. prior to the burn was not disputed. Your claim that they called the BLM only after is meaningless as their stated intent was that the burn was not to reach BLM land. As for the deer hunt theory, Hunt guide Gordon Choate who was reported to hold animosity towards the Hammonds stemming from an incident in 1999 between the Hammonds and a fellow local hunting guide, you fail to mention the other side of the story.

    At trial, the defense presented substantial evidence contradicting the government’s witnesses. ER-1133-45; ER-258-59; SER-11-22. For instance, Scott Gustafson, an insurance agent who was hunting with the Hammonds on September 30, 2001, testified that they set the fire after they finished hunting, and that the interaction with the Choate group earlier in the day was totally unrelated to the fire. ER-1138-39.

    Jacon Taylor, whom Dusty Hammond claimed was one of the fire-setters of the Hardie-Hammond
    fire, flatly contradicted Dusty’s testimony. He was not at the September 30, 2001 deer-hunt (as Dusty had claimed), but rather an elk-hunt two weeks earlier.

    SER-11-22. Department of Fish and Wildlife hunting license records and photos verified Mr. Taylor’s testimony. See, e.g., SER-18; Govt. Ex. 021; Def. Ex. 1401.

    DID YOU GET THAT LAST PART? DISGRUNTLED DUSTY HAMMOND WAS PROVEN EITHER UNRELIABLE OR A LIAR.

    MORE TO THE POINT… After investigating the State and Local authorities dropped the charges against 5 years prior concluding that they had no merit. During those 5 years, the Hammonds testify that the BLM employed many methods of intimidation and duress in order to get them to give up not just their rights to the public access, but their private land as well. The endured every bit of it, to the point that the Feds took up those 5 year old charges just 5 days before the statute of limitations expired. That is why I call them Club Fed. You call it paranoid. I call it educated conjecture with great precedent. If you can offer a better conjecture as to why a Federal Prosecutor would suddenly dredge up those old charges 5 years later, in light of the context, I would be impressed. Hogan knew his marching orders. He gave the Feds 6 days of arguments vs. 1 for the defense. The account given of the machinations of the tag team of Prosecutor and Judge in favor of the Prosecution including biased Jury selection and manipulation is out of the realm of possibility to you? And the fact that the Jury requested to know the sentencing guidelines for the charges they were deliberating (which they were lawfully denied) speaks to the frame of mind of the jurists in the case does it not. But go ahead and ignore that as well in your bias. They were ACTUALLY sentenced under, 18 USC § 844. A careful reading of the entire UNLAWFUL ACTS subsection of Code 18 Chapter 40 (being § 842) shows it geared toward malicious acts using explosives to terrorize or destroy persons, structures, or disrupt interstate commerce and there is no mention of fire or arson, just explosives which are defined clearly in § 841. So in 844, strictly speaking, the Hammond’s were NOT in violation as they only burned trees on public land they had the rights to forage.

    § 844(f)(1) Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned for not less than 5 years and not more than 20 years, fined under this title, or both.

    Hogan went light on the prison sentence when the Hammonds should never have been charged under this code at all. And the goal was the fine, as that would likely break the backs of the Hammonds and force them to kneel to the BLM. When they did not, the Feds sicked US attorney Amanda Marshall on them in 2015 to bring them to the brink. Oh, and did you forget that part of their punishment was to be forced to give first right of refusal upon disposition of their land to, you guessed it, the BLM. Who eventually gets what they want.

    Jester (5cd903)

  147. Should never be anything over 10%, in any state, MAXIMUM! The only possible exceptions have to be justified by each individual state’s, State representatives legislative bodies, voted on, winning a 2/3 majority and signed by the governors of said state and then it becomes a lend/lease deal, having to be reapproved, every so many years, which are agreed upon in the legislative votes.

    Victor Caton (3e7d35)

  148. Oh and any Federal building and or properties, not being used for a period of time, say 5 years and with no particular plan to use them, must be sold off, either back to said state or to an individual or company, at fair market value. Of course there would have to be rules and procedures put into place, to help curtail the crony syndrome.

    Victor Caton (3e7d35)


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