Federal judge won’t allow Bundy defendants to present evidence that might’ve resulted in hung jury

Protesters outside courthouse during first Bunkerville standoff trial, which ended in a mistrial. (R-J pix)

railroad —  to convict with undue haste and by means of false charges or insufficient evidence; to push through hastily or without due consideration

Before jury selection began Monday in the retrial of four defendants in the 2014 Bunkerville standoff at the Bundy ranch federal Judge Gloria Navarro granted a prosecution motion to bar presentation of evidence “supporting jury nullification.”

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 standoff occurred after armed Bureau of Land Management agents attempted to roundup 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. Faced with armed protesters the BLM agents eventually released the cattle and left to avoid potential bloodshed.

Two more trials are pending, with Cliven Bundy and his four sons scheduled to be the last. Most defendants have been jailed without bail for a year and half.

Two of Bundy’s sons, who had been arrested on separate but similar charges of illegally occupying an Oregon wildlife refuge to protest the jailing of father and son ranchers under a terrrorism law for letting fires get out of control and burn a few acres of federal public land, were acquitted of those charges this past fall by a jury, along with their co-defendants.

In mid-June the prosecution filed a motion asking the judge to bar the jurors in the current trial in Las Vegas from ever even hearing certain so-called state of mind arguments — arguments that the defendants felt justified to show up and protest the confiscation of Bundy’s cattle because of abusive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

Navarro noted in her ruling Monday that in the first trial she had rejected the Bill Rights arguments and that would stand for this trial. “The Court also rejected Defendants’ proposed instructions on the First and Second Amendment because they are not legally cognizable defenses, or in other words, the law does not recognize these Amendments as legal defenses to the crimes charged.” (navarro ruling)

A rather convoluted argument, but what else would one expect from those who see their jobs as enforcing laws rather than upholding rights.

The Bill of Rights were added to the Constitution in order to spell out certain inalienable rights that Congress must not trample with its laws.

First Amendment: “Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Second Amendment: “… the right of the people to keep and bear arms, shall not be infringed.”

But those are not defenses against laws prohibiting behavior that causes federal officers to feel threatened.

Navarro quoted from a 9th U.S. Circuit Court of Appeals ruling on the topic of jury nullification:

Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt. …  [J]uries do not have a right to nullify, and courts have no corresponding duty to ensure that juries are able to exercise this power, such as by giving jury instructions on the power to nullify. … On the contrary, “courts have the duty to forestall or prevent [nullification], whether by firm instruction or admonition or . . . dismissal of an offending juror,” because “it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.”

Juries are just rubber-stamps.

Navarro concluded, “The Court will not permit argument, evidence, or testimony regarding Defendants’ beliefs about the constitution as such beliefs are irrelevant and a possible jury nullification attempt.”

The concept of jury nullification dates to colonial days and is widely taught in journalism schools, because it involved printer John Peter Zinger who was indicted for criminal libel against the colonial governor and tried in 1735. His attorney Andrew Hamilton offered as a defense that what was printed was true, even though under the law truth was not a defense but rather a confirmation of guilt.

The judge at Zenger’s trial ruled that Hamilton could not present evidence of the truth of the printed statements. “The law is clear that you cannot justify a libel,” the judge said. “The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

Here is a portion of Hamilton’s closing argument:

It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon

Andrew Hamilton arguing Zenger case.

it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow. …

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country. … This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery. …

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.

The jury quickly returned with a verdict of not guilty.

 

 

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54 comments on “Federal judge won’t allow Bundy defendants to present evidence that might’ve resulted in hung jury

  1. deleted says:

    Thomas your an enumerated power sort right?

    Obviously the Constitution give Congress the power to make law in this country, but I missed the part of the Constitution that also grants juries the power to make law which is what jury nullification is after; the power to say what the law is and what it isn’t.

    Since the Constitution doesn’t expressly provide the power for a jury to make law, but it does provide the Congress the power to make law, on what Constitutional basis do you support jury nullification?

  2. Jury nullification is the name given by prosecutors and is neat short hand for the practice. It also might be described as jurors deciding whether prosecutors exceed their authority by trammeling basic inalienable rights.

  3. John Jay, 1794: “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt, you will pay that respect, which is due to the opinion of the court: For, as on the one hand, it is presumed, that juries are the best judges of fact; it is, on the other hand, presumable, that the court are the best judges of the law. But still both objects are lawfully within your power of decision.”

  4. Anonymous says:

    I appreciate the response, really, but I was hoping that you’d just acknowledge that the Constitution does NOT grant any power to juries to make law. Which again, is all jury nullification is.

    And I’m asking again, since the Constitution doesn’t grant a jury that power, and knowing that you tend toward looking to the Constitution’s express grants of power for the justification of any exercise of that power, how can you support, on a Constitutional basis, the usurpation of the law making function by a jury when no express grant of such power is given in the Constitution?

  5. The Constitution does not grant Congress the power to write laws that violate inalienable rights.

    Who would, as a juror, in good conscience convict someone under the Fugitive Slave Act?

  6. Rincon says:

    From a set of boilerplate jury instructions taken at random from the Internet: “It is your duty as jurors to follow the law as I shall state it to you, and to apply that law to the facts as you find them from the evidence presented in court. You are not to single out one instruction alone as stating the law, but must consider the instructions as a whole. Neither are you to be concerned with the wisdom of any rule of law stated by me. Regardless of any opinion you may have as to what the law is or ought to be, it would be a violation of your sworn duty to base a verdict upon any view of the law other than that given in the instructions of the court, just as it would also be a violation of your sworn duty, as judges of the facts, to base a verdict upon anything other than the evidence presented during the trial.”

    It’s the Supreme Court’s job to determine the Constitutionality of laws, but Thomas wants jurors to have more power than that – to determine the fairness of established law and nullify as needed. Wow!

  7. Rincon says:

    Seems to me though, that our courts have gotten away from the original intent of jury trials. Allowing lawyers to cherry pick those jurors that they deem malleable enough to convince often leads to juries full of idiots. Do we really want the most educated and experienced candidates disallowed on juries? I also question the advisability of giving the judges the power to filter the information presented to the jury, essentially as they see fit. Shouldn’t almost all evidence be admissible?

  8. Anonymous says:

    Jury Nullification is merely every man being a law unto himself. Its the most pro-anarchy sort of stuff anyone could imagine, and there are people who think that its an absolute right.

    I don’t get it.

  9. Steve says:

    Bull!

    As in Dr. Phil McGraw.

    The whole idea of playing the jury like a fiddle is a science.

    Make’m random, totally random and hide them behind a screen or in another room and feed them a video stream. Keep them completely away from the court, the judge, the lawyers, the victims and the accused.
    Let Voir Dire happen by text only.

  10. Rincon says:

    Bringing weapons to a demonstration is a little like Archie Bunker’s recipe for eliminating airline hijacking – arm the passengers. Perhaps in the future, protesters will not only bring weapons, but wear body armor and position snipers. Be careful what you ask for.

  11. Rincon says:

    Come to think of it, this could create an interesting dynamic where protesters and counterprotesters all show up heavily armed. One firecracker and it’s all over.

  12. Stoner says:

    Deleted, I believe you need to study a bit more. The Constitution does not need to specifically grant juries nullification rights, because that is one of the individual Natural Rights guaranteed generally by the 9th and 10th Amendments in the Bill of Rights.

    As you may recall, our individual rights pre-date the Constitution, and, in fact, all man-made law. Perhaps you should peruse the Declaration of Independence, which plainly explains the philosophical concept. I’m sure you can easily find a copy online, in case you’ve never read it.

  13. deleted says:

    Stoner:

    I’ve studied the Constitution.

    Jury nullification means every man becomes the law unto himself.

    This is the very description of anarchy and to assert that this is what “natural rights” means would be a blasphemy to the men who labored over making the Constitution.

    If every man was a law unto themselves, which is what jury nullification means, then there would be no law, except that which every man decides he is “governed” by, until such time as he decided differently.

    It’s nonsense.

  14. Stoner says:

    Oh, you mean judges judged that only they will judge the law, and any judging of laws by non-judges will be judged as going against the judges?

    I’m shocked…truly shocked…

  15. deleted says:

    And the world is shocked that there are people that don’t want anyone telling them what to do, or anyone judging what they do, and who want to do whatever they want to do, to anyone else, and not be judged for it, or suffer any consequences for doing exactly what they want to do.

    As children do.

  16. Barbara says:

    So the statist believes man has no natural rights that come from the Creator and have existed through millennial. Rejecting this concept also means the statist rejects the Declaration of Independence and the foundational underpinnings of the founding of our country.

    The statist only invokes the Constitution when he finds it useful to advance more centralized control, more tyranny in the name of liberty.

    What should be done with judges that overstep their Constitutional authority to interpret laws and not make law? Of course when they advance the statist cause you applaud them.

    I just wish you could be intellectually honest and admit that you believe the Constitution is outdated and not sufficient for modern times. Instead you continue to pervert its meaning and prevent any meaningful discussion on the merits of different forms of government.

  17. deleted says:

    I wish the self professed conservatives here could just acknowledge that jury nullification means every man is a law unto themselves, and that anarchy is the inevitable result.

    Because if they can’t, they are either naive in the best case, or not intelligent enough to see, or too blind to care.

    Every man deciding for himself what is right or not, is exactly what the Constitution of this country was written to prevent. But that is what jury nullification is all about.

  18. Steve says:

    If that is so, Patrick, then you need to explain how the world has managed to avoid anarchy for so long.

    The origin of jury nullification traces back to the mother country in the 1670 decision in Bushell’s Case, which arose out of the underlying prosecution of Quakers William Penn and William Mead for unlawful assembly.36 At trial, the evidence of the defendants’ guilt under the applicable statutes was “full and manifest,” but the jury “acquitted [the defendants] against the direction of the court in matter of law, openly given and declared to them in court.”37 After juror Bushell was imprisoned for disobeying the judge’s instructions, he sought habeas relief in the Court of Common Pleas, where Chief Justice Vaughan ruled that the detentions were unlawful, stating that “how manifest soever the evidence was, if it were not manifest to [the jury], and that they believed it such, it was not a finable fault, nor deserving imprisonment. …”38 Bushell’s Case is widely cited as the first precedent for the independence of the jury.

  19. Steve says:

    Forgot my link. And it’s a very good one too.

    http://www.badgerlawyer.com/blog/?p=132

  20. Stoner says:

    Deleted, I’m sorry you keep insisting on redefining/ignoring history to suit your Marxist/Authoritarian worldview, but those of us that still love our Foundational Principles of liberty will defend them to the death. Your paltry attempts to negate the truth using the opinions of modern legal scholars and judges, instead of the understanding the actual words and deeds of our Founders, are based on either ignorance or disingenuousness.

    You know, over the years, you’ve become a mere caricature of a sycophant of tyranny, not an actual tyrant, but an apologist for evil, conspiring men that use their wealth and power to control society and destroy the self-government that our Founders envisioned.

    Begone with you, and take your weak arguments and lying heart elsewhere, to fool people who are less knowledgeable of history and politics than are here, perhaps in North Korea.

    Oh, and have a nice day. 🙂

  21. deleted says:

    Stoner:

    Caricature? Sycophant of tyranny? Apologist for evil? Lying heart?

    I usually try not to start the name calling during any discussions I want to have, and let it be noted here, that you did so, I’m happy to join but I will defer, for now, and I’ll just point out that my initial series of posts, were QUESTIONS addressed primarily to Thomas, who at least provided some answer, even if in my opinion, it wasn’t a direct answer.

    The questions were mostly rhetorical since the answer was obvious and had to do with which part of the a Constitution granted juries the authority to make law. This had nothing to do with Marxism, or communism, or socialism, and many other -isms and was just a question of fact as in, does the Constitution provide for the power of juries to make law or not.

    My later posts were mostly statements about the inevitable result of jury nullification being anarchy and that because jury nullification means each member of a jury gets to decide for himself what the law is, every man becomes the law unto himself.

    Again, this had nothing to do with distorting history, or Marxism, or my particular belief system toward tyranny or anything else other than a simple statement of fact which is, again, where every man gets to decide for himself what the law is, that every man is a law unto himself.

    You came in sort of late to the “discussion” and to your credit this time, rather than post some irrelevant right wing video which no one in their…right, mind would ever look at given your history here, you actually tried to make a comment, however ignorant it was, even though it had nothing to do with much that had been said before then.

    I say that your efforts here, for the most part, add nothing to any of the discussions, and in the future, ignoring the things I write, particularly if you can’t help but launch some mindless personal attacks on me, would serve both our interests.

    The things you have said to date, are so irrational, and mostly irrelevant, that I sure won’t miss them.

    Have a nice day though!

  22. Barbara says:

    Well said Stoner.

  23. Rincon says:

    Actually, juries have always ruled based on their perception of the fairness of laws. This is why whites who murdered blacks were routinely exonerated in many of the Southeast states. The shocker is that the stoners among us believe it should be codified. Hell, if juries can decide the laws, why not have the police decide innocence or guilt? Skip the middlemen. Get rid of the Supreme Court too. The juries can take care of it.

  24. Rincon says:

    “You know, over the years, you’ve become a mere caricature of a sycophant of tyranny, not an actual tyrant, but an apologist for evil, conspiring men that use their wealth and power to control society and destroy the self-government that our Founders envisioned.” This is very good. Describes Conservative zealots perfectly. Do you mind if I borrow it?

  25. Steve says:

    reducto ad absurdum.

    Go read PAtric’s 63 page dissertation link, then tell me ho my stuff is long winded.

  26. deleted says:

    Yes Rincon, jury nullification certainty has a rich history doesn’t it. “To Kill a Mockingbird” was one of my mothers favorite movies which depicted exactly what you reference, albeit in the instance of rape.

    Modern day “conservatives” are an interesting lot they forget apparently that the ideas they claim to treasure, like mostly the “right of property” is meaningless in the face of a jury who decides that, as the law unto themselves, that there is no such “right” or any other that the individual fancies at the particular moment.

    I just don’t understand.

  27. Rincon says:

    Boy, I can’t wait to serve on a jury. Finally, I get to make and enforce the laws the way I want them to be, not the way they’re written. I hope I get a Conservative defendant 🙂

  28. Steve says:

    You two forget, you have to get the others to go along or it’s a mistrial and they get another jury to do it all over again.

    Both of you have lousy arguments.
    I predict, if either of you try this, you will fail miserably.

    laugh

  29. Rincon says:

    Steve, you can’t really be that dim. It only takes a single juror to prevent a conviction – and if there’s a retrial, which often does not occur, there would likely be a few liberals on that jury too.

    I assume you realize that you’re advocating juries to disregard the standard instructions given to them by judges. If they can disregard one instruction, why not just disregard other instructions as well?

    I noticed that you failed to address my comment about white criminals being routinely acquitted in the South. You’re advocating the same behavior for all juries: “Go with your political opinion. To hell with rules.”

  30. Steve says:

    “It only takes a single juror to prevent a conviction” in that trial, it ends with mistrial and prosecutors try the case again with a different jury. Shit, speaking of being dim.

    “I assume you…. ” Keep ASSuming! It works so well when you make shit up!

  31. deleted says:


    There are two court systems in the United States: federal and state courts. Each covers different types of cases.

    In the federal system, whether the trial is criminal or civil, the jury must reach a unanimous verdict.

    State Court Jury Verdicts: Unanimity Not Always Required

    In state courts, whether a jury needs to be unanimous depends on the state and the type of trial. For criminal trials, nearly every state requires the jury to produce a unanimous verdict.

  32. Anonymous says:

    Thomas I have a couple of questions for you that this whole subject raises:

    If jurors have the right to decide what is legal and what isn’t, can they make that decision in their everyday life as well?

    And if not, why not. If so, they who gets to tell them what they did was “wrong” and mete out the consequences?

  33. Did you have those same questions when the racially biased LA jury found OJ Simpson not guilty of two counts of first degree murder?

  34. deleted says:

    No, I just figured the jury was dumb.

    Apparently though, most of the people here cheered them for their principled stand.

    You?

  35. Steve says:

    “Apparently though, most of the people here cheered them for their principled stand.”

    Feh

  36. Rincon says:

    “It only takes a single juror to prevent a conviction” in that trial, it ends with mistrial and prosecutors try the case again with a different jury. Shit, speaking of being dim.

    My words: “It only takes a single juror to prevent a conviction – and if there’s a retrial, which often does not occur, there would likely be a few liberals on that jury too.” Sorry you couldn’t comprehend it. I tried to make it clear, but apparently, it wasn’t enough.

  37. Rincon says:

    “You guys support having juries rule on the way they think the laws should have been written rather than they way they actually were, but with the Constitution, you insist that we interpret it very strictly.
    Am I on Candid Camera?

  38. Steve says:

    Bullshit, DA’s are like pit bull’s, they never let go of a bone.

    Your post has no foundation in reality. Stop wearing those blue blockers.

  39. Rincon says:

    “I assume you…. ” Keep ASSuming! It works so well when you make shit up!”

    My assumption was that you “realized”. That jury nullification goes against the instructions commonly given to juries is a fact. I apparently cannot make you realize that fact. Obstreperous, you is.

  40. Steve says:

    Strike that, reverse it.

    The instructions given to juries go against the very long history of jury nullification.

    that history originated in 1670, as I made clear a few posts above.

  41. Rincon says:

    It’s one thing to be wrong. Being wrong when accusing another of the same is egregious:

    “Obtaining information on dispositions for cases that were originally declared a mistrial
    due to jury deadlock was difficult. Of the 30 counties that provided filing and disposition
    information for felony cases, only 9 counties were able to provide follow-up data on hung jury
    cases. Even with these limited data, however, we observe similarities to the post-hung
    dispositions found in the Planning and Management study in California.
    The 9 counties reported a total of 453 hung juries during the period 1996 through 1998.
    Of those cases, over half (53.4%) did not require a second trial. Plea agreements
    resolved 144 (31.8%) cases and 98 (21.6%) were dismissed. Just under one-third of the cases (32.0% were retried to a new jury and a very small number (2.4%) were retried as bench trials.
    http://www.ncsc-jurystudies.org/What-We-Do/~/media/Microsites/Files/CJS/What%20We%20Do/Are%20Hung%20Juries%20A%20Problem.ashx page 26

  42. Steve says:

    wow, you went to a lot of trouble to find partial statistics from a small number of counties.

    However, that very lack of statistical data indicates a lack of transparency in and of itself. How about joining the conservative call for more, verifiable, real transparent government?

    Nevertheless, that same lack of statistical data does nothing to support you or detract from my statement.

    woo

  43. deleted says:

    HFB I missed your response about the Simpson jury.

    Did you cheer the jurors because the took a stand for liberty? Or is jury nullification only appropriate when you agree with the outcome?

  44. The Simpson jury wasn’t a stand for liberty…it was a payback for Rodney King and other perceived slights against the black community in LA and across the country. I was one of those people with the stunned look on their face knowing that the Juice had just gotten away with two brutal murders. Having listened or watched most of the that trial and hearing the mountain of evidence against Simpson it was obvious that a travesty of justice had just taken place. No one died in the Bundy standoffs…except Lavoy Finicum who was shot and killed by an adrenalized cowardly, federal swat team.

  45. Anonymous says:

    HFB:

    What the jury obviously did was ignore the law as it was written, and substituted their own idea of what the law should be. Which is the very definition of jury nullification.

    Apparently, the decided that a black man, ought not be subject to the white man’s law. Just as members of the misnamed “patriot movement” believe that they are not subject to any law other than that they want to be subject to.

    And Finicum got no less than what he deserved when he tried to kill law enforcement officers for doing their jobs.

  46. Apparently the citizens of Oregon who were bussed in from a nearby city to be on the jury disagree with you. They weren’t a part of any patriot movement…but they certainly recognized the overreach of the FEDS when they saw it.

  47. Steve says:

    Brien brings up a strong point about jury nullification.

    Even when a judge tries to rewrite the law, higher courts can and do, overrule. The very same thing happens with jury nullification on a regular basis. (In spite of the very limited 100-page study Rincon posted)
    https://www.justice.gov/usao-or/pr/eastern-oregon-ranchers-convicted-arson-resentenced-five-years-prison

  48. Anonymous says:

    HFB:

    The question really is whether you believe jury’s have some right to say what the law is and isn’t?

    And I don’t just mean in cases where you would side with the person being freed. I mean, in every case, do you believe that a juror in a criminal case gets to say that the law doesn’t apply to a particular defendant because a juror thinks that the law is wrong?

    If you believe that, I’ll follow-up with the question I asked Thomas:

    If a juror gets to decide whether a law is a good law that should be followed, or a bad law that doesn’t need to be followed (with no repercussions for not following a bad law) does the same juror, who is not in the jury box at the time, get to decide what laws are good and have to be followed, or bad such that they don’t have to follow them (or suffer any repercussions)

    And I’d love to get some idea as to the reasons why you believe what you do in either case.

  49. Cannot jurors determine the law was misapplied?

  50. Anonymous says:

    No they can’t.

    The jurors job is to find facts.

  51. Steve says:

    There you have it, Patrick is for tyranny.

  52. Anonymous says:

    Coke, categorically proclaimed that “the most usual trial
    of matters of fact is by twelve such men; for ad quaestionem facti non
    respondent judices [judges do not answer a question of fact]; and matters
    in law the judges ought to decide and discuss; for ad quaestionem
    juris non respondent juratores [juries do not answer a question of law]

    CoxE, Comn r1rsARY ON I,rEToN 460 (Thomas ed. 1818) ; see, e.g., Altham’s Case,
    8 Co. Rep. 150b, 155a, 77 Eng. Rep. 701, 709 (K.B. 1611).

  53. Russell best says:

    Recall this bad judge and get one is constitutional .get rid of liberal judge.

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