As the trial for the three Spokanites federally charged with felony conspiracy for their roles in the June 11 protests inches closer, Judge Rebecca Pennell continues to work her way through a slate of pre-trial issues on the table. Meanwhile, both the federal government and the defense are filing more requests.
If your sole knowledge of the legal system comes from Legally Blonde, The Trial of the Chicago 7 or the veritable hydra of law procedurals forever running on network television, you may have no idea just how much of legal fight is done before defendants can ever appear before a jury of their peers (or be interrogated on the stand about their haircare routine).
There is simply So. Much. Paperwork. Lawyers asking for certain lines of argumentation to be banned from use. Lawyers asking for certain witnesses to be banned from testifying. Lawyers asking for certain words like “victim” or “co-conspirator” to be banned from use, at least in certain circumstances.
Before a jury can even be chosen, the lawyers must agree on what questions to ask on a questionnaire sent out to potential jurors, what kind of answers to that questionnaire are immediately disqualifying and what instructions the jury must be given when they ultimately must rule on the innocence or guilt of the defendant(s) in front of them at the end of the trial.
And all of this falls to the ultimate authority of the judge, who rules on the issues as they come up, trying to make sure everyone is on the same page when the trial actually starts, minimizing the number of times lawyers will have to stand and yell “objection!” like you see on the silver screen.
On Tuesday, May 5, Pennell ruled on another batch of motions, setting the tone for the trial ahead.
The central question in the entire case is whether the three defendants on trial conspired to use force, violence or intimidation against federal officers.
Jac Archer, Justice Forral and Bajun Mavalwalla II were arrested in July of 2025 on conspiracy charges for their presence and alleged actions on June 11. On that day, they were among hundreds of Spokanites gathered outside the Immigration and Customs Enforcement (ICE) office in downtown Spokane to protest the detainment of two young men who were in the United States legally. Six others were arrested on federal charges, but those people have all since taken plea deals that allowed them to avoid federal prison time.
The conspiracy charge levelled against the three defendants still on trial carries a six-year maximum sentence and/or a large fine.
While lawyers for the defense have continually proposed different legal justifications for Pennell to throw the case out — most recently arguing it was an illegal selective prosecution — she has been consistent in her rulings thus far: the case is going to trial.
And at the hearing we learned the trial will likely take two weeks. The federal government intends to call between 18 and 20 witnesses, while lawyers for each of the individual defendants intend to call about four witnesses each.
This was a surprise to Pennell, who had planned for the case to take just one week.
“This is a one day event that happened over a few hours, most of it captured on video. I fail to see why we need so many witnesses,” Pennell said.
Still, between the large number of planned witnesses, anticipation that the defense will challenge phone extractions and video evidence and that jury selection will be contentious on both sides, the current estimate is for a two-week event. Court will run Monday through Thursday.
Tuesday rulings
Did the three defendants knowingly coordinate with each other and plan to use force, intimidation or threats to prevent federal officers from doing their job? For a jury to convict, the government must prove that they did.
In her rulings on Tuesday, Pennell kept returning to that idea; Would the information each side wanted to present or tools they wanted to use help the jury make a decision on that key question?
“I don’t want to talk about other crimes … This case is about force, threat or intimidation,” Pennell said. “This is not about vandalism. This is not about trespassing. This is about, was their intent to commit force, threat, or intimidation?
Here’s quick rundown on some of the decisions Pennell made:
- She granted a motion from Forral asking the federal government to turn over any information about federal officers who may testify in the case, like if they’ve previously lied in court or been accused of using excessive force.
- She denied a motion from Forral asking for the indictment to be redacted because she said she couldn’t change the language in an indictment. But she acknowledged that Forral didn’t want the jury to associate them with the more violent acts alleged to have been committed by defendants who have already plead guilty. To that end, she asked both the prosecution and defense to submit drafts of what they hoped would be told to the potential jurors about the crime in advance of the trial.
- She denied a motion from Forral to prevent the federal government from introducing cell phone and Facebook records as evidence but preserved their right to challenge the evidence during the trial.
- She granted a motion from the federal government asking to ban all discussion or suggestion of jury nullification, which is when a jury gives a “not guilty” verdict even if they think the defendant broke the law. This can happen when jurors think the law or the prosecution is unjust, for example.
- She granted a motion from the federal government to exclude any argument that the government failed to charge other members of the conspiracy.
- She approved a request from both parties to keep evidence of the other six defendants’ plea agreements out of the trial.
- She granted a motion from the federal government preventing former US Attorney Richard Barker from being called as a witness or quoting statements made by him. Defense teams said they weren’t planning to do that.
Much of the argument revolved around what can and cannot be talked about at trial. The US attorneys were pushing for some heavy restrictions. They wanted to prevent Mavalwalla from talking about his military service, prevent defendants from saying they went to the protest to exercise their First Amendment rights and prevent the defense attorneys from arguing that this is a political prosecution or that the federal government is unlawfully detaining people in immigration proceedings.
Pennell ruled in favor of the government on a few issues. Defense teams will not be able to use the fact that one of the two young men whose detainments sparked the June 11 protests was released after a judge found his right to due process was violated. They will not be able to use anything that occurred here, or in other cities, after June 11 as a defense — not the federal government’s targeting of protesters in Illinois nor the fatal ICE killings of Renee Good and Alex Pretti.
But Pennell said the prosecutors’ requests went “too far,” in parts. Archer, Forral and Mavalwalla can testify to their own beliefs on June 11, because so much of the case hinges on what their intent was on that day. If they believed the young men had been unlawfully detained, they can testify about that. If their intent was to keep people safe or to peacefully protest, they can testify about that.
The prosecutors also wanted to ban the defendants from saying things like “I wanted to exercise my First Amendment rights.” Pennell approved this in part and denied it in part.
“No witness should testify regarding the ultimate issue of whether Defendants’ actions were legal or constitutionally protected. Nevertheless, should Defendants elect to testify in this case, they must be given some leeway,” her decision reads. “Defendants must be allowed to testify as to their mental state regarding the charged offense. This can be done without Defendants summarily explaining that they intended to obey the law or that they intended to exercise their First Amendment rights.”
Essentially, this means they can say “Our intent was to go to a protest” or “Our intent was not to intimidate anyone,” but they can’t say “What I did was First Amendment-protected speech.”
The prosecution team also sought to keep Mavalwalla from testifying about his military service, his honorable discharge and awards he won for his conduct. Pennell said witnesses talk about their backgrounds all the time on the stand, like law enforcement officers who will likely cite their experience and professionalism as reasons the jury should trust them. Mavalwalla should be able to do the same about his military background, she ruled.
“What’s good for the goose is good for the gander,” she said after this and several similar rulings.
Mavalwalla also intends to call witnesses to testify about his “good character,” specifically his truthfulness and his law-abiding nature. Whether or not those witnesses will be allowed will be up to the judge if and when defense tries to call those them.
Pennell also ruled that in opening statements and witness examinations, the federal government may not call protesters “co-conspirator.,” (The prosecutors have been doing just that in motions, going as far as to refer to people who also protested and attended the first hearing in support as “co-conspirators, indicted or not.”) Pennell also ruled the prosecutors should avoid referring to the group of defendants as “defendants” whenever possible, instead listing their individual names.
Jury Instructions
The other key element of the case up for debate was what instructions the jury should be given to make their verdict. Jury instructions typically outline key considerations in the case law, like defining terms, telling jurors what standards need to be met for them to convict on a specific charge and giving them other relevant information they may need to make their decision.
How the jury is instructed is particularly important because, as Pennell said, “Jury instructions that haven’t been vetted are one of the most common causes of reversals,” at the appellate level.
Because of that, she proposed the jury be given instructions that were used in a case for similar charges that have survived an appeal in the 9th Circuit: United States vs. Ehmer. In Oregon, four men were charged with conspiracy to impede officers of the United States (among other charges) after they occupied the Malheur National Wildlife Refuge. That 41-day occupation, led by Ammon Bundy, resulted in a shootout in which one of the occupiers was shot and killed by officers.
While the federal government was never able to secure a conviction the Bundys, Duane Ehmer, one of the men occupying the federal land, was ultimately sentenced to one year in prison for his role in the occupation. He was found guilty of one of the felony counts leveled against him — depredation of property — and two misdemeanors: trespassing and tampering with vehicles and equipment. He later appealed and his conviction was upheld.
Because the jury instructions used in his case that survived the appeal included instructions on how the jury should consider the conspiracy count Ehmer was also charged with, Pennell suggested using them as a model.
Those instructions include definitions of the crime of conspiracy, definitions of what would rise to the level of “threat” and “intimidation” (though not “force”) in the conspiracy law and details on First Amendment protected speech. One section of the Ehmer instructions that sparked debate was this paragraph:
“On the other hand, unless a defendant intended his speech or expressive conduct to incite an imminent lawless action that was likely to occur, a defendant’s speech that merely encourages others to commit a crime is protected by the First Amendment.”
The government wanted this paragraph struck from Pennell’s model jury instructions, while Forral’s attorney Andrea George argued its inclusion was “vital” for the case the defendants want to make.
George said she thinks the prosecutors are going to argue that Archer’s Facebook post telling people willing to risk arrest to go to a certain area is evidence of conspiracy, and keeping the jury instruction above is important when considering that post.
Speech encouraging others to commit a crime can be protected by the First Amendment, but speech intended “to incite an imminent lawless action that was likely to occur” would not be. That distinction is important to the case, because being willing to disobey a dispersal order — a misdemeanor with far smaller repercussions — should not be considered a conspiracy, George said.
Both sides made their arguments to Pennell, who told them to submit their proposed changes to her jury instructions by May 8 to be ruled on May 15.
Know before you go
Other important information discussed at the hearing was what audience members and the media can expect from the trial. It’s a small courtroom and seating will be first-come, first-served. Because the first day of the trial will be mostly jury selection, an overflow room will be opened on the eighth floor of the Spokane federal courthouse for spectators and the media, as the courtroom will be full of potential jurors.
Reporters will be allowed to use laptops if they submit a form to the court and are approved. All devices in the room must be set to silent. No one may take photos or record audio or video in the courtroom.
The federal government also asked Pennell to bar RANGE’s courtroom sketch artist, Jake Gillespie, from sketching jurors or the witnesses. They particularly want to avoid artistic depictions of federal officers who might testify.
“We don’t want their faces out in the media,” Assistant US Attorney Rebecca Perez said. “They’re being followed home from the HSI building.”
George objected to the request, saying that because witnesses are testifying in open court, an artist should be allowed to sketch them.
Pennell joked that while the sketch of her from the first hearing “wasn’t flattering” she wants “to be careful of the rights of the press.” She approved the request to ban depictions of jurors, but said that both parties will have to file a briefing with their positions on artistic witness depictions by May 8 for her to rule on.
A pretrial conference is scheduled to begin at 8 am on May 18, with jury selection beginning immediately after. For more information on how the trial will work, click here.
Editor's note: This story has been edited to correct the misspelling of Mavalwalla II's name.
