Voir dire begins this week in the retrial of four defendants in the 2014 Bundy ranch standoff — or as a friend of mine always notes, voir dire is French for jury tampering.
In April, in the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.
The seating of a jury sympathetic to a given side’s arguments is always paramount in such trials.
The prosecution wants jurors ready and willing to punish those who dare to “threaten” and “extort” law enforcement officials simply doing their duty.
The defendants want jurors who are willing to accept that people may exercise both their First and Second Amendment rights in the face of excessive force by government agents.
In mid-June the prosecution filed a motion asking the judge to bar the jurors from ever even hearing such arguments. The judge reportedly has not yet ruled on the motion, which makes it tough for the defendants to prepare for trial.
The motion signed by Assistant U.S. Attorney Steven Myhre argues that certain evidence, such as the culpability of the law enforcement victims, should not be allowed to be presented.
The government specifically wished to prohibit:
- April 6, 2014, officer encounters with civilians during the arrest of Dave Bundy, including any testimony concerning, or video/audio depicting, that event;
- April 9, 2014, officer encounters with civilians during the convoy block, including any testimony concerning, or video/audio recordings depicting officer encounters with Ammon Bundy or Margaret Houston;
- Third-party/lay person testimony or opinion about the level of force displayed or used by law enforcement officers during impoundment operations, including operations on April 12, 2014;
- References to the opinion/public statement of Governor Brian Sandoval of April 8, 2014, and/or opinions registered by other political office holders or opinion leaders about BLM impoundment operations;
- References to First Amendment zones;
- References to Cliven Bundy’s grazing, water, or legacy rights on the public lands;
- References to infringements on First and Second Amendment rights; and
- References to punishment the defendants may face if convicted of the offenses.
And you thought the jury tries the facts and the facts include the circumstances. The state doesn’t want the jury to also try the law, a process called jury nullification — a term that recurs often in the prosecution motion.
The concept of jury nullification dates to colonial days when a jury acquitted printer John Peter Zenger of libeling the colonial governor even though he was clearly guilty under the law as written. The jury nullified the law, because they deemed the law wrong.
Jurors have since acquitted people accused of harboring slaves and violating Prohibition, among other things.
The state argues, “To adduce evidence of these events, whether on direct or cross-examination or in closing argument, unfairly prejudices the government by placing it in a position of having to prove a negative; that is, to explain or prove that the officers did not act unlawfully or otherwise supposedly overreach their authority.”
Isn’t that what trials are for?
But the motion goes on to argue:
To allow otherwise, merely provides the defendants with a vehicle to expound upon their beliefs about the First Amendment, the BLM, their alternative reality view of the world, and a host of other irrelevant matters – all in an attempt to nullify the verdict. … (“To permit nullification in cases where a defendant has a ‘good’ reason for his conduct when motive is not an element of the crime allows jurors to use their individualized set of beliefs as to ‘good’ reasons to be determinative of guilt or innocence”).
The state apparently is fearful the jurors might not fully buy into the ready answer to the question: “Did this defendant intentionally threaten a law enforcement officer?”
The officer might have felt threatened, but did the defendant threaten or merely exercise his free speech right while carrying a gun?