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.
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.