Editorial: Judge rules Bundy case evidence will be cloaked in secrecy

That was a futile gesture.

A federal judge has rejected efforts by the Las Vegas Review-Journal, Battle Born Media and The Associated Press to be privy to evidence provided to the defense attorneys for the 19 defendants accused in the armed standoff at the Bundy ranch in Bunkerville in April 2014, meaning that most evidence will remain veiled in secrecy until the trial next February.

The judge did state that information already in the public domain — such as Facebook, Twitter and YouTube postings — could not be declared secret. The cat may not be put back in the bag, as one wag argued.

Bundy ranch standoff. (Reuters photo)

U.S. Magistrate Judge Peggy Leen wrote in her order this week, “All materials produced by the government in discovery in this case, including, but not limited to: grand jury transcripts, agency reports, witness statements, memoranda of interviews, and any documents and tangible objects produced by the government shall be treated as confidential documents. Information and documents in the public domain are not confidential documents.” Protective order 7-15

The judge warned that defense attorneys may not even share notes relating to the contents of discovery with anyone not employed to assist the defense, and anything filed in court relating to the discovery must be filed under seal.

Judge Leen based her ruling on the belief that, “The victims and witnesses in this case are vulnerable to cyberbullying, threatening communications, and intimidation from Bundy supporters who have demonstrated their ability to rapidly disseminate images and private information about victims and witnesses and encourage people to contact victims and witnesses. These tactics ‘have the potential to disrupt and prejudice the truth finding function of a trial by influencing potential witnesses or chilling their willingness to testify.’” Order 7-15

She determined this even though almost all of the 22 allegations of intimidation are two years old and nothing substantive has come of any of them.

The defendants face felony charges that include conspiracy, obstruction, extortion and assault, which carry penalties of up to 50 years in prison. The standoff occurred after armed Bureau of Land Management law enforcement agents attempted to roundup Cliven Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties.

Armed Bundy supporters outnumbered the BLM agents 4-to-1, the court claims, and the agents eventually released the cattle and left to avoid potential bloodshed.

Attorney Maggie McLetchie, who represents the media in this case, told the Las Vegas newspaper after the recent ruling, “From the media’s perspective, the order still cloaks much of the information about this case in secrecy despite the heightened need for transparency the judge recognized when allowing the media to intervene. It is deeply troubling that so many documents will be automatically hidden from public view.”

The lack of public scrutiny means that any extenuating or mitigating circumstances that the public might shed light on will not come until the time of trial, when it might be too late.

One glaring example of this is the court’s continued referencing to the fact that a couple, Jared and Amanda Miller, who were at the Bundy ranch during the standoff latter ambushed and killed two Las Vegas police officers in a restaurant and “draped a Gadsen (sic) flag over one of the officers, and shouted to patrons that this was the start of ‘a revolution.’”

Never mind that it was a Gadsden flag, the court makes no mention of the fact the Bundy’s say they kicked the Millers off the ranch due to their left-wing radicalism.

In a motion filed in support of opening up discovery to the press and the public, McLetchie argued, “One of the most critical aspects of news reporting is to inform the public of justice being carried out in the courts. In this regard, the press is vital to the health of a democracy. … This right is anchored in the value of keeping ‘a watchful eye on the workings of public agencies,’ and in publishing ‘information concerning the operation of government.’ … ‘In short, justice must not only be done, it must be seen to be done.’”

The attorney for at least one of the defendants plans to appeal the secrecy decision.

A version of this editorial appears this past week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.

16 comments on “Editorial: Judge rules Bundy case evidence will be cloaked in secrecy

  1. Patrick says:

    I wonder whether the RJ, back in the years immediately following 911, sought to intervene in the “trials” of alleged terrorists on the same grounds.

    Wonder where their concern was back then for “government transparency” and/or the “rights of the free press to scrutinize the actions of the government” so as to insure a fair trial for the accused?


  2. Patrick says:

    According to this article, at least 523 of them.

    “If you had every single terrorism-related prosecution since 9/11 and you wanted to know the convictions, there would be 523,” says the center’s director, Karen Greenberg.

    Her database includes everything from the smallest terrorism-related passport violation to the case against Sept. 11 plotter Zacarias Moussaoui. “The point,” Greenberg says, “is to have a database that has everything in it so that you can crunch for all of the different things, and that’s what we do.”


    But, did the RJ seek to intervene in ANY case involving purported terrorists, after 911, seeking the discovery that is being sought in the Bundy case?

  3. None that I can recall was conducted in utter secrecy in a court in Nevada.

  4. Patrick says:

    How did that make any difference to the principle though? I mean, if the principle is the Constitution?

  5. Was there any case in which anything was kept secret for any reason other than national security?

  6. Patrick says:

    Where is that issue set out in the Constitution as a standard for determining whether a defendant is entitled to a fair trial?

    Admit it Thomas, the RJ, while you were there, did not find the instances of government secrecy involving trials of defendants “alleged” by the bush administration to be terrorists worthy of the kind of intervention you seem to believe is appropriate in this case.

    Parse out the reasons if you must later.

  7. There were no similar cases.

  8. Patrick says:

    The principles are the same.

  9. Yes, I think we would have been principled enough to sue if there ever were a case that warranted it.

  10. Rincon says:

    The Constitution guarantees a public trial, but not a public pretrial. Of course, it also guarantees a speedy trial, which I suppose is now considered an anachronism. Sad though, that in this age of instant information and rapid transportation that our judicial process is as slow and creaky as ever.

  11. Patrick says:

    Thomas, isn’t the principle of defending the Constitutional protections for a free press and a public trial, asserted as the basis for the disclosures sought in this case, the same?

    I mean, those allegations, asserted by the Bush administration with regard to the accused were merely allegations until they were “proven”. At the time, particularly in relation to accused like Jose Padilla, an American citizens by the way, were merely allegations. How could the assertions made by the attorneys for the RJ here, be any less true in that case?

  12. nyp says:

    Today’s Second Amendment Moment: Four killed in mass shooting at an apartment complex in Texas

  13. Patrick says:

    Here’s a case that warranted intervention:

    Click to access 034162R1.U.pdf

    Fortunately, some members of the “liberal” press decided to act in defense of the Constitution even in a matter where their doing so might not have been popular.

    But, isn’t that what you hope a free press does?

  14. Jim Falk says:

    Thank you for writing this, Mr. Mitchell. If there is a God in heaven and if there is any justice in the world. Donald Trump will be sworn in as president of the United States on Jan. 20 and before the scheduled trial you mention he will pardon Cliven Bundy and the other political prisoners and lodge charges against those who planned and conducted the armed invasion of Bundy’s ranch. Jim Falk, Fallon, NV

  15. I totally concur Mr. Falk…

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