Some jurors said that if they had gone into deliberation at that point, the verdict would have been ‘not guilty’.
by Terry Noonkester 12-28-2017
The last days of the Bundy trial were no longer about the protest between the ranchers and BLM over grazing rights. The courts attention was drawn to how the prosecution and the agency’s they represented have disregarded the Constitutional rights of the accused.
On December 20th, 2017, Judge Navarro presided over a hearing for the USA v Cliven Bundy trial to give her decision on the defense’s motions for dismissal due to prosecutorial misconduct. The prosecutors committed Brady violations when they failed to turn over evidence favorable to the defense.
Judge Navarro spent nearly two hours detailing six Brady violations made by the prosecution team. The team is comprised of Acting U.S. Attorney, Steven Myhre, and Assistant U.S. Attorneys, Daniel Schiess and Nadia Ahmed. Myhre had been a federal prosecutor for more than 25 years. 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.
One prosecution violation was in regard to the surveillance camera or cameras that captured images, and possibly audio, of the Bundy home, and at other times, surveillance of two other locations. The defense had repeatedly asked for any documentation regarding the surveillance, but the prosecution denied the existence of these camera’s until a government witness, U.S. Park Service Chief Investigator, Mary Hinson, testified to their existence.
Another violation was about the existence of snipers positioned around the Bundy home. The defense needed the FBI reports on these snipers to rebut the governments charges that claimed the Bundy’s and Ryan Payne made false claims that snipers were surrounding the Bundy home.
These FBI reports on snipers were denied and suppressed. The records now show there were at least 197 paramilitary personnel at the Bundy Ranch in April 2014. There were pictures of snippers on the high ground near the ranch. The paramilitary personnel were from the Las Angeles SWAT, The Las Vegas Metro SWAT and the FBI Hostage Rescue Team along with the BLM law enforcement and their ‘contract cowboys’.
There were several threat assessment reports made by the FBI throughout an extended timeframe of several years. The prosecution claimed the Bundy family was assessed as being dangerous, but failed to make the reports available to the defense. The Bundy’s and several supporters were denied bail because of these assessments until the prosecution’s witness, Mary Jo Rugwell, former head of the BLM district office in southern Nevada, testified that the reports classified the Bundy’s as not a threat or as a low threat. These assessments were then released to Judge Navarro, who then ruled that the defendants could be released from prison, to be monitored with ankle bracelets at host homes in Las Vegas.
The defendants may have spent 20 months in prison because of false statements made by the prosecution.
There was also a BLM assessment that grazing had not harmed the desert tortoise. This refutes the governments claims that the cattle roundup was done to protect the tortoise.
Navarro repeatedly referred to the date that production of the evidence was required as October 1st, 2017; the discovery date for this trial. Although the withheld evidence was also needed by the defense in the first two Cliven Bundy et al trials, violations for those trials are not covered by violations confirmed in this trial.
Navarro declared a mistrial because of the government’s “willful failure to disclose information” to the defense. She said; “A fair trial at this point is impossible.”
Ryan Bundy asked the Judge if that meant all the defendants would be released. She told him that he would have to go through Pre-trial Services to get any modification of his release. Ryan asked if Todd Engel, and Greg Burleson would be released. She said that was not up to her, a jury had convicted them. She made it clear that the first two Bundy Trials in Las Vegas were not covered by this mistrial.
The jury was then brought into the courtroom for the first time in 9 days, Judge Navarro told them that there had been a lot of new evidence in the trial; 3,300 pages of new evidence. The attorneys would need a lot of extra time to go through all the new evidence so the trial had to be declared a mistrial because it was going to take too long. She thanked them for their services and sacrifices several times and dismissed them as jurors. She never mentioned that the prosecution was the party late with the evidence, nor did she say anything about Brady violations.
The procedure to be followed now is for lawyers for the defense and the prosecution to file briefs explaining to Judge Navarro how they think the trial should be concluded. The prosecution would normally try to convince the judge that the case should be retried. The defense wants the judge to dismiss the case with prejudice; meaning all charges would be dropped and the prosecution would be barred from trying the case again. December 29th is the deadline for the lawyers to file their arguments regarding how the trial should end. Navarro has set the date for her decision as January 8th, 2018 at the courthouse.
At the end of the hearing on December 20th, Navarro instructed the prosecution to go through all the evidence that was covered by a protective order and remove any evidence that does not need to be under such a restrictive court order. The judge also requested that any unnecessary redactions be removed. The only sanctions imposed on the prosecution from Navarro’s court will be the mistrial or dismissal of the case. Navarro has also followed court protocol to set a “calendar call” for February 15th, and a new trial date for February 26th, 2018; but these dates are not expected to be needed.
After the courtroom was adjourned, the defendants were able to visit with the jurors. Ammon said all the jurors he talked to were friendly and some wished to visit the ranch. Some jurors said that if they had gone into deliberation at that point, the verdict would have been ‘not guilty’, one saying that he could see what the government was doing to them. The Bundy’s, their defense team, supporters and even a few jurors met outside the courthouse main entrance. The jurors had been impressed by Ryan Bundy’s representation of himself, one of the jurors calling it ‘awesome’.
Bret Whipple, the attorney for Ammon Bundy said; “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…I’m confident we’ll get a mistrial with prejudice. One step at a time. We’re getting close.” The Chapman case, like the Bundy case, was headed by Steven Myhre and ended in a mistrial due to the prosecutions failure to disclose exculpatory evidence.
Judge Navarro has not considered the new allegations about prosecutorial misconduct that were made public in an email leaked to Washington State Representative Matt Shea on December 14, 2017. The email was written by the former lead investigator of the Bundy case within the BLM, Agent Larry Wooten. Wooten wrote of cooperation between his supervisor and prosecutor Steven Myhre to withhold evidence and his own dismissal as case investigator after his own failed efforts to supply evidence to Myhre.
Larry Klayman, a former Justice Department prosecutor and the founder of Judicial Watch and Freedom Watch, sent a message to Attorney General Jeff Sessions on December 21, 2017. “In the last week, through an ethically troubled BLM whistleblower who came forward as a matter of conscience, Larry “Clint” Wooten, it was also disclosed that BLM and the FBI had put the Bundys on a “kill list,” mocked and disparaged their Mormon faith, and bragged about assaulting and waging a violent invasion of their land, as well as harming them.
To make matters ethically and legally worse, Myhre and his staff also suppressed this whistleblower report documenting BLM and FBI gross misconduct and indeed criminal behavior. In short, your prosecutors in Nevada not just condoned the hiding and destruction of evidence that could lead to my client’s acquittal, but they themselves engaged in obstruction of justice through a cover-up. Importantly, Myhre and his staff committed crimes in furtherance of attempting to falsely convict Cliven Bundy. Incredibly, if convicted on all counts, Cliven and his sons would be sentenced to mandatory life imprisonment.”
Klayman’s letter continued; “…it is incumbent that you also direct the Department’s OPR and the IG to now conduct an ethics investigation and mete out appropriate strong disciplinary sanctions against Myhre and his staff, as well as the involved complicit FBI agents”. Klayman has requested an investigation of the Bundy prosecution several times in the last year, and filed formal complaints against Sessions, the Inspector General (IG), and the U.S. Department of Justice’s Office of Professional Responsibility (OPR) when an investigation was not conducted in a timely manner.
Spokesman for the United States Justice Department, Ian Prior, said Jeff Sessions takes this issue very seriously and has personally directed a review and report of the case against Cliven Bundy. 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. That can range from a reprimand to a suspension. At this point, it is even possible for the government to call an end to the case. It is disturbing that Sessions used the phrase “review and report” rather than investigation.
Not included in the violations committed by the prosecution are any issues that had not “ripened” when Judge Navarro declared a mistrial. The ripeness refers to the readiness for litigation; “a claim is not ripe for adjudication if it rests upon contingent future events that may not occur as anticipated, or not occur at all”. Although the ‘Wooten materials’ make many allegations of prosecutorial misconduct, there must be an investigation and possibly litigation before there can be sanctions or other punishments.
Also not covered is another violation in regards to testimony given by Mary Jo Rugwell regarding the Bundy’s water rights. It seems Rugwell has perjured herself when she testified that she knew nothing about the Bundy’s water rights, but evidence was found that she had previously tried to have those water rights cancelled.
Defense lawyers said the violations in this Bundy trial are more extensive, involving thousands of pages of documents deliberately withheld.
At a roundtable discussion later in the day of the hearing, Ammon Bundy described how the prosecution of the Hammond family in Oregon paralleled the Bundy case in Nevada. Ammon said the Hammonds did not have the benefit of a good defense team, so they are in prison. He continued by saying that we need to act to get the Hammonds out of prison now.
Cliven Bundy is still ‘resisting release’ by not accepting an ankle bracelet monitoring device and a halfway house as a condition of release, and he is also insisting that all the men that came to his ranch in his defense be freed before him.
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.
PHOTO: From left, Ryan Payne, Jeanette Finicum, widow of Robert “LaVoy” Finicum, Ryan Bundy, Angela Bundy, wife of Ryan Bundy and Jamie Bundy, daughter of Ryan Bundy, walk out of a federal courthouse Wednesday, Dec. 20, 2017, in Las Vegas. (Photo: AP)
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Even Judge Navarro, who has continuously tried to help the prosecution, could not swallow that story.
