By Hal Bernton

The Seattle Times

PORTLAND, Ore. — They took over the offices, a bunkhouse and other buildings at the Malheur National Wildlife Refuge headquarters, posted armed guards to monitor entry, and kept control for 41 days in a takeover that federal officials say cost taxpayers $4.3 million.

So how did a 12-person jury reach its startling verdict Thursday in U.S. District Court that cleared Ammon Bundy and six other high-profile occupation participants of a key conspiracy count?

One juror has offered an explanation: The prosecutors did not make a convincing case that the defendants not only participated in the plot to take over the refuge, but did so with the intent to violate the law by using threats and intimidation to keep federal workers from their jobs.

In an email Friday to The Oregonian, a man the newspaper identified as Juror 4 wrote, “We were not asked to judge on bullets and hurt feelings, rather to decide if any agreement was made with an illegal object in mind. It seemed this basic high standard of proof was lost upon the prosecution throughout.”

The Oregonian said the man is a business-administration student at Marylhurst University near Portland. Many of the other jurors were drawn from other parts of the state.

A conviction on the conspiracy count could have brought a prison sentence of up to six years.

It is one of the more serious charges that prosecutors could make against the defendants whose actions last winter helped galvanize supporters of a militant movement to challenge federal control of Western public lands. Ammon Bundy, who grew up on a Nevada ranch and faces charges over a militant protest in that state, was a leader of the occupation.

For some of the defendants, a finding of conspiracy also would have enabled a second conviction of bringing a firearm on a federal facility to help carry out a crime. But once defendants were acquitted of conspiracy, the jurors could not find anyone guilty of the gun charges, according to the instructions given by U.S. District Court Judge Anna Brown.

The jurors had heard an impassioned rebuttal to the conspiracy charge by defense attorneys who sought to build up their clients as principled protesters seeking to challenge federal control of public lands and to make a “hard stand” on behalf of two Oregon ranchers sent back to prison on arson charges when a federal judge ruled they had not served enough time.

These attorneys scoffed at the notion of a conspiracy, and maintained that their clients did not believe they were acting illegally.

Juror 4, in the Friday email, cautioned that the verdict reflected the “various failures of the prosecution to prove conspiracy” and “not any form of affirmation of the defense’s various beliefs, actions or aspirations.”

Legal experts interviewed by The Seattle Times indicate that prosecutors likely could have thrown in some less-serious charges — such as interfering with federal officials trying to do their duties — that would have been more likely to stick.

“It’s a strategic decision,” said Mary Fan, a University of Washington law professor and former federal prosecutor. “You might sometimes want to put in a lesser charge so the jury just won’t let the defendants walk.”

But offering the jurors that option also would have given them an easy out to avoid convicting on the more serious charge, Fan said.

Prosecutors had been expected to hold a news conference Friday to talk about the verdict. Instead, they chose not to talk to reporters as they contemplated the legal road ahead. They still have another conspiracy trial scheduled for next year with seven other defendants who were involved with the refuge occupation. “We need a little time to regroup with our trial team and decide what we will do moving forward” said Kevin Sonoff, an attorney for the U.S. Attorney’s Office in Portland, in brief remarks Friday morning.

“We haven’t adjusted any of our plans at this point.”

For prosecutors, a critical decision on how to proceed came in the extraordinary last chapters of the trial, when the jury was deep into deliberations.

On Tuesday, a note from the jurors said agreement had been reached on verdicts for three of the defendants but not the others. Was this an agreement to convict these three — or clear them? Only the jury knew for sure. Prosecutors, as well as defense attorneys, could only speculate.

A second note, from Juror 4, expressed concerns about another member of the jury — Juror 11.

“Can a juror, a former employee of the Bureau of Land Management, who opens their remarks in deliberations by stating ‘I am very biased … ’ be considered an impartial judge in this case?” the note said.

Brown initially questioned Juror 11 in chambers Tuesday about whether he could be unbiased.

“I told her yes, of course I can,” said Juror 11, who identified himself as Curt Nickens in an interview late this week with Elkhorn Media Group that also identified him as a corrections officer.

But on Wednesday, with defense attorneys filing a motion to try to gain his dismissal, Brown decided the allegation could not be ignored. So she asked if prosecutors would reach an agreement with defense attorneys to boot Juror 11 from the deliberations and call in an alternate. Otherwise, she feared a mistrial.

Prosecutors left the courtroom to talk about the proposal. When they returned, they agreed to dismiss Juror 11.

“We come from all different backgrounds and because of my law enforcement experience I can see why some would perceive that I would be biased,” Nickens told Elkhorn Media.

“I didn’t want people to assume that just because I was a corrections officer that I think they should all be in jail.”

It now appears that Juror 11 may have been a holdout preventing the jury from clearing all the defendants on the conspiracy charge.

On Thursday, with an alternate juror who came back from Central Oregon, the jury started deliberations anew. By late afternoon, all 12 jurors had brushed aside the prosecutors’ arguments and found the defendants not guilty of conspiracy.

“The air of triumphalism that the prosecution brought was not lost on any of us,” Juror 4 said in the Friday email, “nor was it warranted given their burden of proof.”