Prosecutors on Friday urged a federal judge to allow them to
retry Nevada cattleman Cliven Bundy, his two sons and a fourth man,
arguing that any failure to provide evidence to the defense in the last
trial was simply "inadvertent'' or because they reasonably believed the
law didn't require them to share the material.
"The Brady violations found by the court are regrettable and benefit
no one,'' Nevada's Acting U.S. Attorney Steven Myhre wrote in a 55-page
legal brief. "But because the government neither flagrantly violated nor
recklessly disregarded its obligations, the appropriate remedy for such
violations is a new trial.''
The prosecutors claim they couldn't simply turn over all the
material, citing "harassment and threats'' made to witnesses, victims
and officers in the case who would be in jeopardy if personal
information got out, especially on social media.
They also cited the massive volume of documents, videos and emails
from two federal agencies and Las Vegas and Nevada law enforcement
agencies that they needed to cull, and the constraints of the U.S.
attorney's "low-tech'' database.
The 1.5 terabytes of information shared with defense was "by far the
largest review and disclosure operation'' in the history of the Nevada's
U.S. Attorney's Office, Myhre wrote.
Prosecutors
argued that the six Brady violations found by the judge encompass "one
small portion of the discovery'' and that the defendants can proceed
with a new trial and "all the information they're entitled to."
The legal brief represents the prosecution team's first significant comments since U.S. District Judge Gloria M. Navarro declared a mistrial last week in
the case brought by the government against Bundy, sons Ammon and Ryan
Bundy and Ryan Payne in the April 2014 armed standoff with federal
officers.
Prosecutors are undertaking a substantial review of all their
evidence and will share any further reports it may discover, they noted.
The Brady law, named for the landmark 1963 U.S. Supreme Court case
Brady v. Maryland, requires prosecutors to turn over all evidence that
may prove favorable to defendants.
"The government takes its discovery obligations seriously,'' Myhre
wrote. "The government seeks justice on the merits of a case, not
through dodging discovery rules and technicalities, or by obscuring
violations if and when they may occur.''
Defense lawyers said the harm caused by the violations and the
prosecution's continued failure to accept responsibility demand a
dismissal of all the charges against the four men. They were indicted
last year on conspiracy and other allegations, accused of rallying
militia members and armed supporters to stop federal agents from
impounding Bundy cattle. Officers were acting on a court order filed
after Cliven Bundy failed to pay grazing fees and fines for two decades.
"The
government's irresponsible and, at times, false proffers to this court
as well as its dismissiveness toward the defense inspires no confidence
in the prospect of fairness," Brenda Weksler, an assistant federal
public defender representing Payne, wrote on behalf of all the
defendants. "Anything short of a dismissal is tantamount of condoning
the government's behavior in this case. ... Dismissal is the only way to
ensure such conduct will not happen again.''
The judge found the prosecutors' violations were "willful,'' and led
to due process violations. She said they waited too long to provide FBI
and other agency reports and maps on surveillance, including a camera
and snipers, outside the Bundy ranch, threat assessments that indicated
the Bundys weren't violent and nearly 500 pages of internal affairs
documents involving U.S. Bureau of Land Management special agent Dan
Love, who led the cattle roundup. He has since been fired from the
agency for unrelated misconduct.
Both sides are expected to return before Navarro on Jan. 8 for a
hearing to determine whether the government will be allowed to retry the
case.
Myhre wrote that the Nevada U.S. Attorney's Office began working in
October 2014 to collect investigative documents from the Bureau of Land
Management and FBI, as well as historical documents related to Cliven
Bundy's long-running grazing dispute. The combined database contained
more than 30,000 documents or 250,000 pages.
In addition to that database, there were 45 search warrants that
generated more than 500,000 pages of affidavits and evidence lists, more
than 82,000 emails and 75 videos, including bodycam and dashcam videos
from the Las Vegas Metropolitan Police Department and Nevada Highway
Patrol.
The prosecution team looked through all the information with witness protection in mind, their legal motion said.
"The prosecution team went 'low tech,' spending hundreds of hours
conducting word searches for documents, reviewing documents one at a
time for relevant information and tagging documents individually for
relevancy and future production," Myhre wrote.
Prosecutors also believed the court's restrictions barring
self-defense arguments during earlier standoff trials this year meant
they didn't have to share information about certain aspects of the law
enforcement response.
The prosecutors said, for instance, they didn't become aware until
Nov. 10 of a Tactical Operations Center log that referred to a
surveillance camera outside the Bundy home - it was found on a thumb
drive left in a federal vehicle -- and still don't consider it relevant
to the Bundys' defense. It contained four notations from observations on
April 5 and April 6, 2014, largely noting the type of vehicles arriving
and that a Bundy was seen outside on the phone.
"The government argued in good faith that the information was not
material, and this court concluded that it was. That may make the
government wrong, but being wrong does not equate to bad faith, nor does
it show a flagrant disregard of the government's discovery
obligations," Myhre wrote.
As
for documents referencing snipers or maps of officers' positions, some
of the information was contained in earlier reports that had been shared
on time, showing the prosecution's actions weren't done for "tactical
advantage," Myhre wrote.
A
footnote from the prosecutors' legal brief, regarding what they say
they shared in the first two trials about the existence of federal
snipers. The judge, in her ruling, was concerned that the government had
denied the snipers' presence near the Bundy Ranch in the first two
trials, and at the start of the third trial.
The prosecution also didn't think the threat assessments would be
helpful to the defense, the memo said. Some were done as early as 2012
and considered "stale" and irrelevant, he wrote.
The threat assessments have proven a source of significant arguments
between the prosecution and defense. A 2012 FBI Behavioral Analysis Unit
assessment concluded there was a "low to moderate risk of violence" by
Cliven Bundy at that time and that the Bureau of Land Management was
"trying to provoke a conflict." A separate FBI operations order
described Cliven Bundy "as not being violent based on past history, but
if backed into a corner could be" and that Ryan Bundy "could be
violent." A BLM law enforcement assessment said the Bundys "will
probably get in your face'' but not engage in a shootout. A Gold Butte
Risk report referenced media talking points for the BLM to stay ahead of
negative publicity that apparently were not used.
The prosecution also sought to explain its dismissive response to
Ryan Bundy's pretrial motion, which sought any information on
"mysterious devices" outside the Bundy ranch, as a "fantastical fishing
expedition."
The words referred to Ryan Bundy's request for the make and model of
every piece of equipment and his "speculat[ion]" that the camera was
being used to "paint" the Bundy home "for artillery or [aerial] target
acquisition," Myhre wrote. He added that his team never suggested "the Court's request'' for information about the camera was a "fantastical fishing expedition.''
Excerpt
of government's legal brief, explaining why prosecutors characterized
the defense's request for an Office of Inspector General report as an
"urban legend.'' They said the report was not identified as such, but
instead as an internal report by the Bureau of Land Management. That's
why they couldn't locate it until this month, they said.
In
the weeks leading up to the April 12, 2014, standoff, more than 100 law
enforcement officers were involved in providing security, prosecutors
said. They acknowledged they "inadvertently" didn't share federal
reports on Bureau of Land Management officers, dressed in tactical gear
and armed with AR-15 rifles, on observation posts near the Bundy ranch
before trial, but noted that some of the information was contained in
another Bureau of Land Management operation report shared in May. It
described as many as five officers on listening/observation posts around
the Bundy ranch.
They said it was "simply an oversight'' they didn't share a 2015
report on a BLM agent who was on watch in tactical gear east of the
Bundy ranch in early April 2014 with a rifle and using a "seismic
sensor,'' to alert him and another of cars traveling on Old Gold Butte
Road, or the report about another land agent on "roving assignment''
near the impound center during that time.
Myhre wrote that "it was not apparent'' that these reports were
helpful to the defense in challenging their federal conspiracy, assault
or other charges, which resulted from actions that occurred several
miles from the Bundy ranch.
The defense, however, said the prosecution's behavior "was instrinsically wrong and has defeated the ends of justice."
Defense
lawyers pointed out that the judge already found that the FBI knew of
the evidence that was withheld and that there were federal prosecutors
present during interviews of officers whose reports were not disclosed.
"The government's untimely disclosures came almost four years after
the government began its investigation, and almost two years after the
government secured its indictment. Based on the indictment, the
defendants lost almost two years of their lives in custody,'' Weksler
wrote.
The prosecution's failure to recognize what material needed to be
shared with the defense, she wrote, "affects cases beyond the one in
question and is emblematic of a much larger problem.''
The government shouldn't be allowed a "do-over'' with a different
jury, now that it's more familiar with the Bundys' and Payne's defense
theories and how the defense worked to eliminate potential jurors, she
wrote. Based on questions some jurors posed to witnesses during the
trial that was halted, Weksler wrote that it appeared the government's
case was "faltering.''
"The government cannot be fairly given another bite at the apple as a result of its own flagrant misconduct,'' Weksler wrote.
-- Maxine Bernstein mbernstein@oregonian.com
503-221-8212 @maxoregonian DOCUMENTS FILED FRIDAY: PROSECUTION -
--Prosecution's opposition to dismissal Prosecution's exhibits filed with motion opposing dismissal:
--Exhibit on Tactical Operations Center log
--Exhibit on maps
--Another exhibit on maps
--Exhibit on back-and-forth defense/prosecution emails regarding threat assessments
--Exhibit on email to Cliven Bundy's defense lawyer Bret Whipple
--Exhibit including partial transcript from Nov. 21 court hearing on snipers/threat assessments
--Exhibit on 'Mission 18- Bundy residence,' Gold Butte communications information
--Exhibit
on BLM letter explaining why no Office of Inspector General case number
for what became BLM investigation into 2009 complaint about agency not
taking action to protect desert tortoise
--Notice
of the Nevada U.S. attorney's chief appellate lawyer, assistant U.S.
attorney Elizabeth White, being added to the prosecution team DEFENSE
--Ryan Payne's defense motion for dismissal
--Ryan Bundy's motion for dismissal of indictment
Map
provided late to defense in Nevada trial that shows drop posts (DP)
where federal law enforcement officers were placed for 2014 cattle
impoundment.
Unsealed motions in NV Bundy case detail prosecution's violations
Updated ; Posted
13
Gallery: Mistrial declared in Cliven Bundy standoff case
In
a July 5 email, Ryan Payne's lawyers asked prosecutors for copies of
all threat assessments prepared before the April 2014 standoff between
Cliven Bundy's supporters and federal officers trying to impound Bundy's
cattle for years of failing to pay grazing fees and fines.
Prosecutors characterized the defendants' continued push for the
assessments as another in their "long list of frivolous and vexatious
pleadings.''
Prosecutors
didn't turn over the assessments to Payne, Bundy and Bundy's two sons,
Ammon and Ryan Bundy, until the four were in the midst of a trial last
month and a government witness under cross-examination acknowledged
familiarity with one of the reports.
The threat assessments by the FBI Behavioral Analysis Unit, the
Southern Nevada Counterterrorism Task Force, FBI Joint Terrorism Task
Force and Gold Butte Cattle Impound Risk Assessment found the Bundys
weren't likely to use violence.
They were just one example of the prosecution team's callous
disregard of its constitutional obligations to share with the defense
any potentially favorable evidence, according to Payne's lawyers,
assistant federal public defenders Brenda Weksler and Ryan Norwood.
The date of the defense attorneys' initial request for the crucial
threat reports and their late disclosure is among the information
revealed in newly unsealed motions by Payne's lawyers to dismiss the
case.
The motions contain redactions throughout as the trial judge had requested.
The paperwork discloses that prosecutors had sought to continue the
trial, once U.S. District Judge Gloria M. Navarro on Dec. 11 signaled
she was concerned about more than a handful of potential evidence
violations by the government attorneys.
Prosecutors
argued that much of the material turned over late to the defense was
"irrelevant'' and that the defense theories that the Bundys recruited
militia to the Bunkerville area in 2014 because they feared federal
snipers or federal surveillance weren't valid legal arguments.
Instead, Navarro on Dec. 20 declared a mistrial, finding at least six
types of Brady discovery violations and that prosecutors "willfully''
withheld the evidence, resulting in due process violations. She set a
hearing for Jan. 8 to determine if the case should be dismissed with
prejudice, meaning it can't be retried. The government and defendants
have until Friday to file their written arguments.
The unsealed motions filed by Payne's lawyers also signal what his
lawyers are likely to argue in Friday's legal brief: that prosecutors
repeatedly failed to abide by deadlines set to share favorable evidence
with the defense, were dismissive of specific requests for evidence,
engaged in a "pattern to ridicule and disparage the defense'' requests
and then made "brazen proffers'' to the court that specific information
sought didn't exist, only to find out later they were mistaken.
Further, the government has continually failed to take responsibility for its misconduct, Weksler argued in a December motion.
"Here
the government cannot seem to recognize what constitutes Brady
material, maintains it has done nothing wrong, blames the defense for
improper and 'late demands,' and for 'filing serial motions to dismiss
based on proclaimed discovery violations,' '' Payne's lawyers wrote.
"This Court should be 'troubled' by the government's actions and its
'failure to grasp the severity of the prosecutorial misconduct' involved
here, as well as the importance of its constitutionally imposed
discovery obligations.''
Beyond the threat assessments, other evidence that defendants
obtained "piecemeal'' during the trial included information about an FBI
surveillance camera on a hill overlooking the Bundy home with a
live-feed image viewed in a command center and snipers positioned
outside the Bundy ranch.
Those would have bolstered the defense argument that Payne summoned
militia members and supporters to Nevada because he feared the Bundys
were surrounded by federal officers and isolated before the April 12,
2014, standoff.
The information also directly refutes the federal indictment, which
alleges the Bundys and Payne used deceit to draw supporters, by falsely
claiming snipers were surrounding the Bundy home.
The
threat assessments, as well as evidence on a surveillance camera and
federal snipers, also wasn't shared with the defendants prosecuted in
two earlier Nevada trials this year, Payne's attorneys pointed out.
"It bears reminding that this Court sentenced one of these defendants
in the Trial 1 group to 68 years and another one is pending
sentencing,'' Weksler and Norwood wrote.
The government's delay in turning over the evidence prejudiced Payne
and his co-defendants, his lawyers argued. The material would have been
helpful for Payne's opening statement to jurors and to impeach the
government's first witness, Mary Jo Rugwell, former head of the U.S.
Bureau of Land Management office in southern Nevada, who referenced one
of the threat assessments. She was cross-examined and excused as a
government witness before the defense got the report.
The Bundys and Payne are charged with federal conspiracy to impede
federal land managers through intimidation, threat or force, assault on a
federal officer and extortion stemming from the standoff.
Here's some other details from the motions:
-- Prosecutors dismissed a defense request for an Office of Inspector
General's report on fired Bureau of Land Management agent Dan Love as
something of an "urban legend.'' In early December, though, prosecutors
turned over nearly 500 pages of internal affairs reports on Love.
--
After Rugwell, the Bureau of Land Management manager, testified in
November, prosecutors sent defense lawyers an email on Dec. 1, saying
they inadvertently had forgotten to share notes the FBI had taken prior
to Rugwell's testimony when she was being prepped as a witness. In those
notes, Rugwell referenced a 2012 FBI Behavioral Analysis Unit Threat
Assessment. Rugwell also referenced it during testimony. Defense lawyers
demanded a copy of the assessment after Rugwell testified, yet
prosecutors questioned its relevance before they were ordered to share
it with the defense.
"The defense is anxious to learn how, even based on that discussion
alone, it did not occur to the government to turn over information it
knew the witness was relying on,'' Payne's lawyers wrote in their
motion.
-- By late November, the defense had asked the court at least twice
to appoint a "discovery monitor'' to make sure defendants were receiving
all the evidence they were entitled to receive. None was appointed.
However, a day after the judge declared a mistrial, the U.S.
Department of Justice released a statement saying Attorney General Jeff
Sessions took "this issue very seriously and has personally directed
that an expert in the Department's discovery obligations'' be sent to
Las Vegas to examine the case and provide advice as to next steps.
-- Payne's lawyers briefly suggest that a Nov. 29 whistleblower memo from a Bureau of Land Management agent, complaining
that the U.S. Attorney's Office didn't want to hear about potential
evidence being withheld by his agency, should disqualify the prosecutors
from future work on this case, if it's allowed to be retried.
--The U.S. Attorney's guidelines on sharing evidence in criminal trials state
prosecutors' obligations clearly: "It is the obligation of federal
prosecutors, in preparing for trial, to seek all exculpatory and
impeachment information from all members of the prosecution team.
Members of the prosecution team include federal, state, and local law
enforcement officers and other government officials participating in the
investigation and prosecution of the criminal case against the
defendant.'' DOCUMENTS UNSEALED WEDNESDAY:
-Ryan Payne motion to dismiss based on discovery provided Nov. 17, 2017
-Ryan Payne motion to dismiss based on discovery provided Nov. 21, 2017
-Ryan Payne motion to dismiss based on continuing pattern of evidence violations
-Ryan Payne reply to a government response to motion to dismiss
-- Maxine Bernstein mbernstein@oregonian.com
503-221-8212 @maxoregonian
Rebuke of U.S. attorneys in Cliven Bundy case: 'Every prosecutor's nightmare'
Updated ; Posted
13
Gallery: Mistrial declared in Cliven Bundy standoff case
The
lead prosecutor in the Nevada standoff case against Cliven Bundy, two
of his sons and a fourth alleged ringleader told a jury in his opening
statement last month that the case centered on the need to respect the
rule of law.
Five weeks later, it was the prosecution team's abuse of the rule of
law that sunk the case, leading to a judge's declaration Wednesday of a
mistrial.
U.S.
District Judge Gloria M. Navarro methodically listed the prosecution's
six separate violations of the Brady law, which requires turning over
evidence potentially favorable to the defense. The judge further ruled
that each violation was willful.
If ever there was a time when federal prosecutors needed to make sure
they acted with complete integrity it was in the high-stakes Bundy
case, legal observers say. The defendants already held a deep suspicion
of the government and had successfully rallied followers to their cause.
Now, the question becomes whether prosecutors can pursue a new trial,
and the judge's finding of deliberate misconduct gives the Bundys a
good argument to seek an outright dismissal and walk away free men,
legal experts said.
In the meantime, the dissection has begun: How could prosecutors have
lost sight of due process, one of the basic tenets of the legal system.
"At the heart of this case is the question, Is the government an
entity you can trust? Certainly if you're the prosecution in this case,
you needed to do everything you can to show the government can be
trusted,'' said Kevin Sali, a Portland criminal defense lawyer.
The judge's rebuke of Nevada's Acting U.S. Attorney Steven Myhre, the
lead, and two seasoned veteran Assistant U.S. attorneys, Daniel Schiess
and Nadia Ahmed, was remarkable in and of itself.
"This
is every prosecutor's nightmare,'' said Kent Robinson, a retired
federal prosecutor who served six years as chief of the criminal
division in Oregon's U.S. Attorney's Office.
When a judge makes a finding of misconduct by a prosecutor, the U.S.
Department of Justice's Office of Professional Responsibility
investigates and determines if discipline is warranted, which can range
from a reprimand to a suspension.
That scrutiny is underway. Ian D. Prior, deputy director of public
affairs in the Justice Department, announced that U.S. Attorney General
Jeff Sessions "takes this issue very seriously."
Sessions "has personally directed that an expert in the department's
discovery obligations be deployed to examine the case and advise as to
next steps,'' Prior said.
The government also could pull the plug on the case, without a
judge's further ruling, as it has done in the past on other
prosecutions.
Cliven Bundy, sons Ammon and Ryan Bundy and Ryan Payne, a Montana
militiaman who came to help them, faced multiple charges, including
federal conspiracy to impede federal officers through intimidation,
threat or force, assault on federal officers and extortion. If
convicted, they could face more than six decades in prison, what would
essentially be a life term for the 71-year-old patriarch.
CASE WAS CHALLENGING FROM THE START
The complexity of the case presented a significant challenge for
prosecutors, say seasoned defense lawyers and current and former
prosecutors.
For one, the Nevada indictments didn't come until nearly a year and a
half after the 2014 armed standoff. Cliven Bundy, his two sons and
Payne were accused of rallying militia members and other supporters to
thwart the court-ordered impoundment of the family's cattle on federal
public land after years of Bundy's failure to renew a grazing permit or
pay resulting fees and fines. Federal officers, outnumbered, retreated.
With the passage of so much time, prosecutors had to track down
numerous witnesses and documents in a vast bureaucracy and jog foggy
memories.
Another complication was the number of agencies involved -- including
the U.S. Bureau of Land Management, the National Park Service and the
FBI - and reports that went back at least a decade.
Federal land agents and Park Service rangers aren't as familiar with
what they must turn over as evidence because they're not as accustomed
to federal prosecutions of such breadth, other prosecutors said. In the
judge's ruling, however, she specifically criticized the FBI, an agency
that routinely works on these types of cases, for failing to share
agents' basic reports.
"I
think it's an agency problem more than a prosecution problem,''
Robinson said. "I think sometimes agencies just don't understand what
they need to show to prosecutors.''
Regardless, as the judge made clear, the law requires prosecutors to
"learn of the material in the possession of other agencies as well.''
Prosecutors often rely on the lead case agents from the investigating
agencies for that information because it's impractical for any
individual prosecutor to wade through what could be millions of pages of
reports, other prosecutors say.
It didn't help that Dan Love, the Bureau of Land Management special
agent in charge of the Bundy cattle roundup, was subsequently
investigated for misconduct in an unrelated case and no longer works for
the agency.
Additionally, the Nevada prosecutors faced increased pressure after
they were largely unsuccessful in two other trials this year of more
minor players in the Bunkerville standoff, and their counterparts in
Portland failed to convince a jury last year to convict Ammon and Ryan
Bundy in the January 2016 armed takeover of the Malheur National
Wildlife Refuge in southeastern Oregon.
Some legal observers questioned whether that heightened strain in a such a high-profile case caused prosecutors to cut corners.
Yet
the 1963 landmark U.S. Supreme Court case Brady v. Maryland has long
set out their fundamental obligations to share any potentially favorable
evidence with the defense.
Other high-profile cases that have been tossed over similar Brady
violations - such as the botched 2008 corruption trial against former
Alaska U.S. Senator Ted Stevens - should have put every prosecutor on
notice of the seriousness of their obligations, legal observers say.
"They're adversaries looking to win a case. They're also public
officials required to help the other side,'' Sali said. "I recognize
that it's a challenge to do this, and the defense attorney does not have
the same burden.
"But there's been so many high-profile failures by prosecutors in
recent years that you'd think they'd get it and err on the side of
caution, and if there's any doubt they'd just turn the material over.''
PROSECUTORS DIDN'T TAKE BUNDYS SERIOUSLY
Ian Bartrum, a constitutional law professor at University of Nevada
Las Vegas, said he's struggled to understand what led to the
prosecutors' "tone deafness'' to their obligations.
He rejects a conspiracy theory floating around that prosecutors
intentionally threw the case because their bosses in Washington, D.C.,
in the Trump administration may not support it.
"To
me, the more likely scenario is they're not taking the Bundys
seriously, and there was this mindset 'we can kind of just show up to
win,''' he said.
The judge, for example, noted in her ruling how the prosecutors
dismissed Ryan Bundy's pretrial motion for information on "mysterious
devices'' outside his family ranch as "fantastical'' and a "fishing
expedition,'' and shrugged off another defense request for a suspected
federal investigative report into BLM agent Love, calling it "urban
legend.'' This month, the government turned over nearly 500 pages of
internal affairs documents on Love.
Perhaps the government wanted to keep "the Bundys' rambling
defenses'' restricted to what it viewed as relevant, "and giving them
more stuff to pore over and work with probably seemed like a bad idea,''
Bartrum said.
"It's either startling incompetence or striking arrogance,'' he said.
Dwight Holton, a former Oregon U.S. attorney, said he believes some
agents in the FBI still resist turning over information they deem too
sensitive or confidential. The FBI keeps a "remarkably close hold on the
counterterrorism side'' of investigations, said Holton, speaking
generally and not specifically about the Bundy case.
"I
think there's still an education process going on at the Department of
Justice as to what material the FBI produces and needs to be turned
over,'' Holton said. "The 'turn it all over' attitude sometimes bumps
squarely into the FBI ethos around maintaining control over security
matters, especially in counter-terrorism operations.''
Holton said prosecutors also sometimes are unable to anticipate the
defense theories. "It assumes we understand the defense. You don't
always know what's helpful to the defense,'' he said.
But that's exactly why prosecutors must be cautious and turn over whatever they have, Bartrum said.
"Prosecutors don't get to decide what's relevant or not relevant,'' he said.
Oregon's U.S. Attorney's Office took action after a federal judge in
2014 rebuked prosecutors over similar Brady violations in the quadruple
murder case of Joey Pedersen.
"Our office led training for federal and state law enforcement
agencies to make sure they understand what it means when we say give us
everything,'' Robinson said. SECURITIES CASE MAY PROVIDE ROAD MAP
A criminal case heard 11 years ago in the same Nevada federal
courthouse may provide some guidance on what's to follow in the Bundy
case.
Bret Whipple, Cliven Bundy's lawyer, and other defense lawyers point to United States v. Chapman.
The 2006 securities fraud case ended with a mistrial based on fewer
evidence violations by prosecutors than in the Bundy case and then was
dismissed at a follow-up hearing. The 9th U.S. Circuit Court of Appeals upheld the dismissal.
In her Bundy ruling this week, Navarro said she chose to declare that
each of the government's violations were deliberate, though that
finding wasn't necessary for a mistrial.
"It does help to clarify the next step,'' Navarro noted. She said she
will decide later if the mistrial will be with prejudice, meaning
prosecutors couldn't retry the case.
Whipple said the judge's findings provide a good argument for a
dismissal; Navarro said the evidence withheld was "material'' to the
defense case and that each of the prosecution's six "willful" violations
resulted in due process violations. The documents confirmed a live-feed
camera was aimed at the Bundy Ranch, and armed federal agents were
watching the family home before the standoff, which the government had
negated. About 3,300 pages of documents were turned over to the defense
too late, the judge said.
In the Chapman case, prosecutors failed to share 650 pages of reports
on prior criminal convictions, pleas and cooperating agreements of
government witnesses, including three who had already testified at
trial.
The
judge ordered a mistrial in the third week of testimony in the Chapman
case, mirroring Navarro's words, saying he "regrettably'' didn't see how
the trial could go forward. The judge ordered lawyers from both sides
to submit briefs within 20 days arguing for and against a dismissal,
held a hearing and then dismissed the indictment. In Chapman, the judge
found the prosecutors' Brady violations to be willful and in bad faith.
The appellate court affirmed the dismissal, noting it stood on grounds
of outrageous government conduct and due process violations.
Defense lawyers said the violations in the Bundy case are more
extensive, involving thousands of pages of documents deliberately
withheld.
"All we need to do is point out her findings that the evidence was
'material,' and the violations were 'willful,' and attach the Chapman
case. In my mind that seals the deal,'' Whipple said. "I'm confident
we'll get a mistrial with prejudice. One step at a time. We're getting
close.''
Myhre wrote that the Nevada U.S. Attorney's Office began working in
October 2014 to collect investigative documents from the Bureau of Land
Management and FBI, as well as historical documents related to Cliven
Bundy's long-running grazing dispute. The combined database contained
more than 30,000 documents or 250,000 pages.
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