A federal court judge on Wednesday allowed for the pretrial release of Oregon standoff defendant Kenneth Medenbach but was reluctant to allow co-defendant David Fry out of jail before a Sept. 7 trial.
U.S. District Court Judge Robert E. Jones said he remained concerned about Fry's mental instability, threats of "suicide by cop'' hours before his surrender to FBI agents, and that he came to Oregon in violation of the conditions of his probation in Ohio.
Jones also shared in court statements from a psychological report on Fry, including that he's concerned about invasions from outer space and has spoken of a desire to be reincarnated as a woman.
Fry, the last occupier to surrender at the Malheur National Wildlife Refuge on Feb. 11, stood beside his defense lawyer and objected to the judge's characterization of those statements. The 27-year-old has pleaded not guilty to charges of conspiring to impede federal officers from doing their work at the refuge through intimidation, threats or force and possession of a firearm in a federal facility.
He argued that he's never been diagnosed with a particular mental illness, that he has the right to believe in what he chooses to believe in, and that yes, he had said he'd rather be a woman "because it seems easier.'' The suicidal statements he made before his surrender at the refuge came because he was fearful of being raped in jail, he told the judge.
Fry urged the court to release him, citing his desire to see his aging pet, a 15-year-old dog who he said he might not have a chance to see again. His defense lawyer suggested Fry be released to his parents in Ohio and placed on electronic monitoring until trial, when he can be returned to custody as the trial proceeds.
"I give you my word I will be here to see this through,'' Fry told the judge.
But after Jones made his ruling, Fry continued to object.
"You've had your say, sir,'' Jones told him.
"You're a bigot and a liar. You're a racist,'' Fry yelled out, as a deputy U.S. marshal led him from the courtroom.
Fry's attorney, Per C. Olson, had asked the court to reconsider releasing Fry in light of several developments since his last detention hearing in April. Olson pointed out that the third count of the federal indictment, possession of a firearm in relation to a crime of violence, was dismissed by the court. Fry also no longer is on probation in Ohio for a misdemeanor offense, that the one-year term expired on June 19, Olson said.
Further, considering some of the plea agreements already made with several co-defendants in the case, the duration of Fry's detention already - five months - "may outpace any sentence he might receive in this matter in the event of a jury finding of guilt,'' Olson wrote in his motion. He also noted that three others who were with Fry at the refuge until the end of the occupation -- Sean and Sandra Anderson and Jeff Banta -- all were granted pretrial release.
But Assistant U.S. Attorney Ethan Knight countered that Fry is unlike any of the co-defendants in the case, namely because he's been so "unpredictable.''
Knight argued that Fry is unique because he's "more volatile, more unpredictable than the others.''
The fact that Fry's Ohio probationary term is completed should not work in Fry's favor but rather worry the court because there would be no "backstop'' to ensure his appearance in this case if he were to be released pending trial, Knight said. With about seven weeks to a Sept. 7 trial, Knight argued that Fry's release "carries too much risk.''
Jones said he was concerned that Fry was walking around the refuge with a gun, when he has had a prior commitment to a mental hospital. Fry had broken down a door and escaped from a mental hospital about four to five years ago. He was caught within hours and taken to a different facility for several days.
Fry's lawyer said the escape occurred because Fry didn't want to be forced to take any psychotropic medication and didn't agree with the initial diagnosis of schizophrenia.
"It's not correct to diagnose someone with one hour,'' Fry told the judge. "I didn't want to take the medication. I felt like it was necessary for me to leave there because I had no other choice.''
Olson said Fry has been doing well mentally and is emotionally stable now. He described his client as "very mild mannered'' when he's not facing stress.
"He's probably the least volatile client I've had in a long time,'' Olson added.
The judge wasn't convinced.
"There's no assurance you would not once again find a reason to do what you want to do,'' upon release, as opposed to what you're ordered to do, Jones told Fry.
Kenneth Medenbach, of Crescent, left the Malheur National Wildlife Refuge to tear down a section of fence bordering a rancher's property that the U.S. Fish and Wildlife Service installed, January 11, 2016, near Burns, Oregon. Medenbach was later arrested for driving a stolen government vehicle. Thomas Boyd/Staff
Medenbach, with his standby counsel, Matthew Schindler, appeared next before the judge.
In April, a federal jury in Eugene found Medenbach guilty of unlawfully occupying and camping on federal public land in Josephine County in May 2015. The judge in that case has allowed for Medenbach to be released from custody as of July 15, basically granting Medenbach credit for the six months he's already served in the Multnomah County jail toward his expected six-month sentence in that case.
In federal court in Portland, Medenbach has pleaded not guilty to conspiring to impede federal officers at the federal wildlife sanctuary in Harney County and theft of government property. He was arrested Jan. 15 in the parking lot of a Safeway in Burns in a truck bearing federal government license plates. He's accused of stealing a 2012 Ford pickup belonging to the U.S. Fish & Wildlife Service from the refuge. Medenbach has said in court that he just borrowed the truck to pick up groceries.
His lawyer argued that Medenbach is eager to defend himself in the refuge occupation case.
"Mr. Medenbach fundamentally believes in being here because it's so critically important to him,'' Schindler told the court. "It's what his life has been about beyond his employment.''
Assistant U.S. Attorney Craig Gabriel objected to Medenbach's release, telling the court he's been unable to comply with the simplest of court conditions already. He came to the refuge on Jan. 3 in violation of a pretrial release condition in the 2015 illegal camping case. He was ordered not to occupy federal land, but he went to Malheur refuge and then lied to his pretrial services officer when contacted, claiming he was at home, Gabriel said.
He also has continually challenged the court's authority and jurisdiction in the pending federal conspiracy case, demanding repeatedly to see U.S. District Judge Anna J. Brown's oath of office.
"I'd like to hear from him,'' Jones said.
The judge told Medenbach he's heard from all kinds of defendants who challenge the court's authority, and described it as "legal nonsense.''
"I have jurisdiction over you. The court has jurisdiction over you. Do you understand?'' Jones asked.
"Yes, I do,'' Medenbach replied.
Medenbach, 63, will be released to his Oregon home in Crescent, where he'll face a 7 p.m. curfew. He was ordered to not possess any weapons, and his travel will be limited.
In related action, Jones issued a written ruling, denying co-defendant Ryan Bundy's motion for a protective order to ensure his jail calls are not monitored or shared with law enforcement. The judge noted the already "extraordinary accommodations'' the court has made for Bundy to meet with his standby lawyer, and brother and his brother's lawyers, to prepare for trial.
-- Maxine Bernstein
mbernstein@oregonian.com
503-221-8212
@maxoregonian