Inviting wrath of judge may be part of calculated approach by Ammon Bundy’s lawyer

By Maxine Bernstein, The Oregonian, Portland, Ore. (TNS)

Saturday, Sept. 24, 2016 | 2 a.m.

It would be nearly impossible for jurors not to notice U.S. District Judge Anna J. Brown's growing exasperation with Ammon Bundy's lawyer Marcus Mumford.

Since the Bundy trial began two weeks ago, the judge has repeatedly told Mumford to follow her rulings, reword his questions to government witnesses and occasionally to either stand up when he addresses her or sit down and stop challenging her directives.

Despite her earlier orders that defense lawyers weren't to raise questions at trial about who owns the Malheur National Wildlife Refuge, Mumford tried to solicit responses from the Harney County sheriff and refuge employees on the subject.

Despite the judge's warnings that she didn't want any defendant or defense lawyer to ask witnesses about the circumstances surrounding the fatal police shooting of occupation spokesman Robert "LaVoy" Finicum, Mumford passed off as a question a stinging remark that Finicum was shot three times in the back, asked another witness how close police were to him when he was shot and why the FBI wasn't investigating the shooting.

Each time, prosecutors objected. Each time, the judge asked jurors to disregard Mumford's bids to get around her edicts.

Out of earshot of the jury, Brown on Thursday had enough.

She threatened Mumford with contempt of court if he continued to delve into Finicum's shooting. She told him she'd fine him $1,000 for each time he continued to violate her orders.

So how is this of any help to Bundy as he and six others fight federal conspiracy charges in the 41-day armed takeover of the bird sanctuary in eastern Oregon earlier this year?

Trial observers have wondered aloud whether Mumford is grasping at straws or if his approach is part of a calculated plan.

Legal experts, including a fellow defense lawyer in this case, suggest the latter.

"He knows what he's doing. It's intentional," said Matthew Schindler, a lawyer helping co-defendant Kenneth Medenbach. "I don't believe he makes choices without a strategic focus."

Mumford may be trying to mimic Bundy's narrative — that the federal government hasn't listened to his concerns and that's why he needed to make a stand.

The judge's consistent slap down of Mumford's questions could play into his defense of Bundy, legal scholars and other lawyers say.

He could be setting up an argument to jurors at the end of the trial: "See, they aren't even letting you hear about the most critical evidence in the case. The government can do what it wants, and they're not even giving us a fair fight," said Portland criminal defense lawyer Kevin Sali.

Or perhaps Mumford's marathon cross-examinations of witnesses — marked by seemingly random questions far beyond the scope of the charges and long pauses as he figures out his next query — might be designed to confuse jurors.

With the government's case resting heavily on the defendants' own recorded statements and social media postings, photos and videos before, during and after the refuge occupation, "maybe all that's left is trying to cast doubt about the government's actions and the propriety of the government's actions," said Tung Yin, a Lewis & Clark Law School professor.

But the tactics could backfire — attorneys can risk losing face in front of jurors when they invite constant scolding.

"The judge — especially someone like Judge Brown, who keeps tight control over her courtroom — will typically be perceived by jurors as a trusted authority figure," Sali said. "Being repeatedly shot down by such a person can harm a lawyer's credibility in jurors' eyes."

In a case with many defendants, it also could make the other lawyers look better, Yin said.

Over the past two weeks, Mumford asked a refuge employee how many birds he estimated lived outside the refuge compared to the number on the refuge. It was stricken as irrelevant. Another time, Mumford slipped in a reference to adverse possession, a principle his client contends he was exercising when he occupied the refuge in an effort to return the property to the people of Harney County. Never mind that the judge has made clear that the federal government owns the refuge and any references to adverse possession must be restricted to the defendants' state of mind if they take the stand themselves.

A few times, the judge has chided Mumford in front of jurors for mischaracterizing direct testimony during cross-examination. After a few witnesses misinterpreted Mumford's questions, the judge advised him when jurors were out of the courtroom to simplify them and avoid using complex clauses, something she said experienced lawyers should know.

"On the one hand, a jury who sees an attorney repeatedly asking improper questions and getting shot down by the judge might think that attorney is not very competent, and be biased against the defendant," said Andrew Kim, a Concordia University School of Law professor. "On the other hand, if the other side, the prosecution, is continually forced to object to questions that sound reasonable to the jury, it could give the impression that they have something to hide, which might work in the defendant's favor."

Bundy, considered the leader of the occupation, his older brother, Ryan, and the other five defendants each face a charge of conspiring to impede federal employees from working at the refuge through intimidation, threats or force. Eleven other defendants have pleaded guilty to the charge. Seven others are set for trial in February.

Ryan Bundy, who is representing himself and has no legal education, usually follows Mumford in cross-examining government witnesses. In contrast, his questions, for the most part, have been focused and direct, and on several occasions, the judge has overruled government objections to his questions. Ryan Bundy also has an experienced standby counsel and paralegal assisting him.

Schindler, who typically asks witnesses a few pointed questions and moves on, said he's proud of Mumford.

"I've never seen anybody get Judge Brown so fired up," Schindler said. "We're not there to be friends with judges. Justice is not done by sitting down and shutting up."

Yin said Bundy's lawyer also may be trying to preserve a record for an appeal if his client is convicted: the court's restrictions on his ability to question witnesses about Finicum's shooting, for example.

The judge, though, also is likely wary of providing any fodder for Mumford to appeal.

"A trial judge has to be careful in a criminal trial not to clamp down on the defense," he said. "It sounds like she might have tolerated more than she would have with Mumford already than she might have, say, with prosecutors or if this were a civil case."

As for Mumford, this is par for the course for the pugilistic attorney.

While many lawyers in Brown's courtroom Thursday said they had never witnessed a judge threaten an attorney with contempt before, it's the second time this year for Mumford.

In February, a federal judge in Utah did the same during a criminal trial for the same type of offense — leading a witness during cross-examination into a forbidden area of inquiry. In that case, Mumford's client, accountant Scott Leavitt, was acquitted of all 86 charges in an alleged influence-peddling scandal that included allegations of fraud, conspiracy and money laundering.

Mumford, who grew up on an Idaho dairy farm, told students at his alma mater, Idaho State University, in 2010 that he had to be "audacious enough" to enter the field of law with a significant stuttering condition he's struggled with since age 4 because "the world wasn't prepared for a stuttering lawyer."

Mumford went on to graduate from Brigham Young University's law school. He clerked for a federal appellate judge and worked eight years for one of the country's biggest law firms, Skadden, Arps, Slate, Meagher & Flom, before returning to Utah to open his own practice.

Mumford told The Oregonian/OregonLive this week that he has tremendous respect for Judge Brown and doesn't anticipate he'll be found in contempt of her rulings. Yet he continued to defend his approach in court.

"My client has a right to confront the witnesses who are testifying against him," he said. "I must zealously represent his interests. I have an obligation to ask all the relevant questions."

He said he's striving to show a link between what he and Ammon Bundy perceive as the government's "misconduct" in the shooting of Finicum and what they contend is the government's misleading view and mishandling of the refuge occupation.

"It's the same governmental mistakes in how they reacted to the occupation itself," Mumford said. "They didn't engage in civil debate but engaged in wrongdoing and made up evidence that my client violated federal law."

"It's not easy to tell the federal government it's wrong," Mumford said.