The Bundys and an Egregious Case of Prosecutorial Misconduct

The ranchers are no heroes, but federal authorities have botched the case every step of the way.

Arnold Ahlert · Jan. 11, 2018

In a stunning development further underscoring the corruption that exists at the highest levels of the federal government, U.S. District Judge Gloria M. Navarro threw out felony conspiracy and weapons charges against rancher Cliven Bundy, sons Ammon and Ryan, and co-defendant Ryan Payne. “The government’s conduct in this case was indeed outrageous,” Navarro explained. “There has been flagrant misconduct, substantial prejudice and no lesser remedy is sufficient.”

How outrageous? Navarro dismissed the case “with prejudice” — meaning the government cannot try the case again on the same charges. And in a 30-minute explanation, the Barack Obama-appointed jurist ripped the conduct of the prosecutors and the FBI. She blasted the Nevada U.S. Attorney’s Office for willful violations of due process that included several misrepresentations to both defense attorneys and the court that showed “a reckless disregard for the constitutional obligation to seek and provide evidence.”

She was also troubled by the prosecutors’ “failure to look beyond the FBI file,” which she characterized as an “intentional abdication of its responsibility,” and wondered aloud how the FBI itself “inexplicably placed” or “perhaps hid” a tactical operations log referring to the presence of snipers outside Bundy’s home on a “thumb drive inside a vehicle for three years.”

Navarro also blasted prosecutors’ assertions that they weren’t aware such documents could help the defendants as “grossly shocking.” “The government was well aware of theories of self-defense, provocation and intimidation,” Navarro stated. “Here the prosecution has minimized the extent of prosecutorial misconduct.”

The seeds for Monday’s decision were sown on Dec. 20, when Navarro declared a mistrial in the case, citing six specific pieces of “potentially exculpatory” evidence the Nevada U.S. Attorney’s Office failed to disclose. They included records and maps of government surveillance; the presence of government snipers; FBI logs about pre-standoff ranch activity; reports about misconduct committed by Bureau of Land Management agents; and law-enforcement assessments going back to 2012 stating the Bundys posed no threat.

All six items were favorable to the defense and could have changed the outcome of the trial. Withholding them violated the Brady Rule, named after the 1963 Supreme Court case Brady v. Maryland, where the Court’s majority ruled that failure to disclose such evidence violates a defendant’s right to due process. Navarro made it clear she agreed, despite former Acting Nevada U.S. Attorney and lead prosecutor Steven Myhre’s insistence no malfeasance was involved. “Failure to turn over such evidence violates due process,” she stated last month. “A fair trial at this point is impossible.”

It gets worse. Navarro’s ruling didn’t take into account an 18-page memo written by Special Agent and lead investigator Larry Wooten alleging that “prosecutors in the Bundy ranch standoff trial covered up misconduct by law-enforcement agents who engaged in ‘likely policy, ethical and legal violations,’” Arizona Republic reported. Wooten claimed he “routinely observed … a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct” by government agents involved in the armed standoff between them and Bundy occurring 2014.

That standoff was largely precipitated by Bundy himself. It involved a dispute about grazing rights between Bundy and the federal government. The government rightly claimed Bundy owed public land use fees for decades of grazing his cattle on government land beginning in 1993, but Bundy refused to pay a sum that, between charges and fines, exceeded $1 million. He also ignored three court orders obtained by the Bureau of Land Management (BLM) in 1998, 1999 and 2013 requiring him to move his cattle off the disputed land.

In 2014, BLM agents working with the FBI attempted to impound Bundy’s cattle, and an armed standoff between the government and the defendants, who were backed by dozens of armed followers and militiamen, ensued. After a week, Bundy called it off, but he and the other defendants were charged with several offenses.

Thus, Bundy is no “hero.” Nonetheless, the incident highlighted Constitution-based questions that remain unanswered regarding the federal government’s right to claim vast swaths of territory in several states. In Bundy’s case, since the federal government owns 80% of Nevada, he would have been hard-pressed to graze his cattle anywhere else.

Moreover, some of the behavior demonstrated by BLM agents cannot be ignored. In addition to the aforementioned comments, Wooten’s report reveals they called Bundy and his supporters “deplorables,” “rednecks” and “idiots,” and demonstrated clear prejudice toward “the defendants, their supporters, and Mormons,” while implementing “the most intrusive, oppressive, large scale, and militaristic trespass cattle impound possible.”

The charges against the men also hinted at persecution rather than prosecution. Aside from obstruction, conspiracy, extortion and weapons charges, the government sought “five counts of criminal forfeiture which upon conviction would require forfeiture of property derived from the proceeds of the crimes totaling at least $3 million, as well as the firearms and ammunition possessed and used on April 12, 2014.”

In short, the government wanted to take almost everything the Bundys owned.

Even the conspiracy charges were iffy. Bundy sought help from his supporters because he claimed FBI snipers had surrounded his house. (And that’s never happened before?) “Justice Department lawyers scoffed at this claim in prior trials involving the standoff but newly-released documents confirm that snipers were in place prior to the Bundy’s call for help,” reveals columnist James Board.

And it wasn’t just the Bundys who were targeted. As The Intercept exposed last May, undercover FBI agents spent eight months in five states posing as filmmakers trying to build criminal cases against the rancher and many of his supporters.

Nineteen men were ultimately charged with multiple felony counts. The first trial took place last February. A mistrial was declared after jurors were deadlocked on most of the charges against six defendants, with two being found guilty of weapons and obstruction violations. When the other four were retried, two were acquitted on all charges, and the other two on most charges, and the jury again deadlocked on the remaining charges. Six other participants took plea deals.

The remaining trial, which includes two more Bundy brothers, David and Melvin, is slated to begin in Nevada next month. Ryan Bundy hopes the judge will set all the remaining defendants free. “The government has acted wrongly from the get-go,” he told the Las Vegas Review-Journal.

Environmentalists, many of whom would like ranchers completely removed from government land, were furious with the decision. “These federal agencies have been patient and cautious to a fault in their prosecution of the Bundys and their accomplices,” wrote Erik Molvar, executive director of Western Watersheds Project, an environmental conservation organization. “It’s long past time to stop playing games with the prosecution of federal crimes, and instead lay all the facts on the table and let the judicial system work.”

The ones “playing games” were government officials, and the DOJ’s Office of Professional Responsibility opened an investigation in December that will scrutinize the efforts of Myhre and two veteran Assistant U.S. attorneys, Daniel Schiess and Nadia Ahmed.

Unfortunately, in a reality that reeks of privilege, penalties for prosecutorial misconduct, even conduct as egregious as this, range from a reprimand to a suspension. In a better nation, there would be a better remedy — as in prosecuting the prosecutors.

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