#TrialOfTheCentury – THERE IS A POSSIBILITY OF THE DEFENSE TEAMS MOTIONS FOR DISMISSAL TO BE GRANTED, WHICH COULD PUT AN END TO THE TRIAL.
by Terry Noonkester
The Bundy Ranch Protest leaders are now on trial in Las Vegas, Nevada. It has been another busy week for the lawyers. Judge Navarro excused the jurors from December 11th – 20th because more time was needed to deal with motions by the defense concerning the failure of the prosecution to hand over exculpatory evidence. Because of this failure, the prosecution has committed at least seven Brady or Giglio violations. These are Fifth Amendment, Due Process violations. The defense team has filed several motions for a dismissal of the case as a remedy.
Late Sunday night and early Monday morning on December 10th-11th, Ammon’s defense team, Dan Hill, Morgan Philpot and Rick Koerber, along with Cliven’s attorney, Bret Whipple, filed a sealed motion to dismiss, to disqualify prosecutors, to unseal materials, and to cease further prosecution. These were not ruled on during any of the hearings this week and the Government was given until Friday, December 15th to file a supplemental response. The defense team was given until Monday, December 18th at 12 noon to file their supplemental reply.
On Wednesday, December 13th, the Las Vegas Review-Journal and a group of Nevada newspapers filed a motion to unseal trial documents and hearings. Lawyer Maggie McLetchie, who represents the Review-Journal and Battle Born Media, has spoken-up on the issue of the courts sealed proceedings; “The Bundy case is an important one to the people of Nevada, and the public has a right to know what is happening in the case, and why,” Review-Journal Managing Editor Glenn Cook said; “Secret justice is no justice at all…The federal system’s preference for closed doors and sealed documents has eroded public confidence in the integrity and impartiality of the courts. Openness is the only way taxpayers can be sure they’re not funding a rigged game.”
There is a drastic change in the way the third USA v. Cliven Bundy et al trial is being conducted. The defense team is fighting extremely hard to get evidence from the prosecution that should have been handed over to the defense over a year ago, before the first two trials. The defense team is trying very hard to get this evidence in front of the present jury. There has been little courtroom time with the jury in attendance because Judge Navarro does not want the jury to witness this struggle.
The leadership of the Ammon Bundy Defense Team accounts for much of this steadfast determination for a fair trial. Morgan Philpot from Utah, who had to acquire temporary admission to the Nevada Federal Bar to represent Ammon Bundy in this case, is an important part of this team. A few weeks ago, Judge Navarro filed an Order to Show Cause, under seal, threatening to revoke Morgan Philpot’s temporary admission.
The defense team stated that; “The judge cited two issues. First, a filing made by Mr. Philpot, a motion to dismiss the case, that was not made under seal. Second, a comment made by Mr. Philpot in the cross-examination of the former head of the federal Bureau of Land Management (BLM) district office in southern Nevada, Mary Jo Rugwell.”
The defense team explains; “The motion to dismiss did not actually include any sealed material or discovery documents covered by the Court’s broad protective order and was subsequently ordered sealed by the Court because it referenced facts that come from discovery documents and sealed proceedings. Philpot responded to the judge on this point that the protective order in place did not forbid the public filing, and demonstrated several other instances of other defense attorneys and even the Court taking the same approach as Philpot had in referencing facts, but not quoting from or attaching sealed or protected material.”
“The second issue complained about by the judge came from Philpot’s cross-examination of Rugwell. It was Philpot who got Rugwell to earlier admit that she had obtained, reviewed and relied upon an FBI threat assessment that concluded Cliven Bundy was not a threat and was not likely to respond with physical force or violence. The defense had not been provided with this report, despite previous requests for all threat assessments. The information was important because it undercut the credibility of Ms. Rugwell and of other BLM agents who later used the “threat” posed by Cliven Bundy to justify the paramilitary build up.”
The misrepresentation of this threat assessment by the prosecution was also used to help the prosecution keep the Bundy’s and their supporters incarcerated for nearly two years. That lengthy incarceration influenced several defendants to accept plea agreements.
The defense team explains further that; “At one point, during open court, the trial transcript shows Philpot stated, ‘Your Honor, first and foremost, I’d actually like to move for a recess. We’d like to have the Government produce the behavioral assessment document that she has referenced that was produced by the FBI. It actually appears to be, from her testimony, that it is a real document. We do not have it. We’ve requested it in the past. We would like to have a recess.’ At this point, Philpot was interrupted and told his remark was inappropriate. Judge Navarro specifically stated, ‘Mr. Philpot, do you want me to declare a mistrial? That is completely inappropriate for you to bring that up in front of the jury.’”
“Philpot did not accuse the government directly of withholding information. He referenced the testimony of the government’s witness, a document she discussed, and simply said ‘We do not have it. We’ve requested it in the past.’ He doesn’t say who it was requested from, or why. No argument was made, nothing more was said.”
At the hearing on December 15th, Philpot submitted a detailed response to Judge Navarro’s Order to Show Cause. Morgan Philpot was not removed from Ammon Bundy’s defense team. Despite Navarro’s superficially improved show of neutrality in this trial, the attempt to remove Philpot for no legitimate reason shows a deep underlying bias against the Bundy’s and their defense team. Federal prosecutors have lied directly to the judge, and repeatedly been found to have withheld exculpatory evidence and other required information from the defense, yet the judge has not subjected any of the government attorneys to this kind of threat and possible punishment.
Also during the December 15th hearing, Federal Defender Brenda Weksler raised the ‘Wooten material’ in the context of the ongoing and repeated discovery abuses. Weksler was referring to an email from the BLM agent who was the lead investigator for the Cliven Bundy cattle impoundment of 2014 for almost three years. A copy of Wooten’s email was made public by Washington State Representative, Matt Shea, in an interview conducted by Shari Dovale of Redoubt News. Wooten is now regarded as a whistle blower.
Special Agent Wooten had originally sent this email to an Associate Deputy Attorney General, the National Criminal Discovery Coordinator on November 27, 2017. The email is an 18 page description of the governmental abuses and subsequent cover-ups in the Bundy case.
Wooten stated; “I am convinced that I was removed to prevent the ethical and proper further disclosure of the severe misconduct, failure to correct and report, and cover-ups by BLM OLES supervision. My supervisor told me that AUSA Steven Myhre “furiously demanded”, that I be removed from the case and mentioned something about us (the BLM, specifically my supervisor) not turning over (or disclosing) discovery related material issues I had with the BLM not following its own enabling statute, and a personal issue they thought I had with former BLM SAC Dan Love.”
Wooten also told of evidence that was removed from his office and safe when he was not present, just before he was removed from the case on February 18th, 2017 and two days after Myhre’s demand.
Since the December 15th hearing was sealed for the portion of the proceeding dealing withthe Wooten email, no one but the prosecution, defense, and court officials can know what was discussed, but no action was taken on the ‘Wooten materials’.
In his email, Wooten accused Dan Love, the former special agent-in-charge at Bundy Ranch, of intentionally ignoring direction from the U.S. Attorney’s Office and his superiors “in order to command the most intrusive, oppressive, large scale and militaristic trespass cattle impound possible.” Daniel Love was described as immune from discipline, though Love was eventually fired from BLM for misconduct in an unrelated case.
Wooten said he learned from other agency supervisors that Special Agent in Charge, Daniel Love had a “Kill Book” as a “trophy,” in which he essentially bragged about “getting three individuals in Utah to commit suicide,” following a joint FBI-BLM investigation into the alleged trafficking of stolen artifacts. (see Operation Cerberus Action out of Blanding, Utah and the death of Dr. Redd).
Tuesday, December 19th is open for a possible hearing for the judge’s ruling on the prosecution’s Brady and Giglio issues. There is a possibility of the defense teams motions for dismissal to be granted, which could put an end to the trial.
Prior to Ammon Bundy’s defense team showing up in Las Vegas, there had not been a single victory in the form of a granted motion. That situation has changed dramatically. Morgan Philpot and Rick Koerber, are relying 100% on donated funds. They have an informational website at AmmonBundyDefense.com that includes videos and written information on the case, plus a place to donate. The web site sends email updates of their progress to supporters that register.
This article is offered to all other media under the Creative Commons License when proper credit is given to Terry Noonkester, The Roseburg Beacon and Redoubt News.
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