Bunkerville standoff prosecutors again try to limit defense arguments

The prosecution in the Bunkerville standoff case have once again asked the judge to prohibit the defendants from arguing to the jury that their actions were justified because they were provoked by the aggressive deeds of federal agents attempting to impound Cliven Bundy’s cattle.

In a motion filed Monday, the prosecution is asking federal Judge Gloria Navarro to not allow the introduction of “evidence or argument at trial that relate to instigation/provocation, self-defense/defense of others, entrapment, justification for violent self-help, impermissible state of mind justification, and collateral attacks on the court orders.”(Bundy motion on jury nullification) The motion said this would amount to jury nullification.

The judge granted a similar motion this past summer in the second of three scheduled trial. She said the defense would not be allowed to mention the tasering by law enforcement of one of Bundy’s sons and the wrestling to the ground of one of his sisters.

The current trial is to resume Wednesday unless the judge declares a mistrial or dismisses charges due to claims the prosecution failed to provide defendants with timely exculpatory evidence.

Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, are being tried in federal court in Las Vegas for charges stemming from the April 2014 armed standoff with BLM agents attempting to confiscate Bundy’s cattle for failure to pay grazing fees on public land. Charges include obstruction of justice, conspiracy, extortion, assault and impeding federal officers. The agents released the cattle rather than risk a shootout.

“The law does not permit the defendants to expand the legally cognizable defense of self-defense against a law enforcement officer by incorporating instigation and provocation,” Monday’s motion states. “To do so would eviscerate the well-recognized elements of self-defense. Defendants, rather, seek to introduce evidence of instigation and provocation to obtain jury nullification. Jury nullification is illegal.”

The motion argues:

Most recently, Ryan Payne says he was at Bundy Ranch solely to protect the Bundy’s from what “he reasonably and sincerely believed to be a threat of unlawful violence.” … He further asserts that his actions were provoked or instigated by “the government’s own and unreasonable conduct.” … According to Payne, the government provoked and/or instigated him into doing something lawful – that is, according to Payne, “protect” Bundy without forming any intent to do a criminal act. It remains difficult to see how the information produced in discovery, including recently produced information, supports this claimed defense theory.

Defendant Cliven Bundy, and perhaps others, seeks to rely on the defense of entrapment. But his entrapment defense relies exclusively on his theories of instigation and provocation, when, in fact, neither instigation nor provocation supports a defense of entrapment. Furthermore, not a shred of evidence supporting the legally cognizable elements of entrapment — inducement and predisposition — exists.

The motion uses the term jury nullification repeatedly.

In her earlier ruling, Navarro quoted a 9th U.S. Circuit Court of Appeals ruling: “Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt.”

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 as to the truth of the printed statements.

In his closing argument Hamilton declared, “It is the cause of liberty … 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.

In 1794, Chief Justice John Jay said to jurors in a rare Supreme Court jury trial, “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.”

The prosecution in the Bunkerville case argues:

They justify their attacks on the court orders, or their arguments around the court orders by arguing the relevancy of the states of mind or of the justification. Regardless of how they shroud their arguments, they are impermissible attacks on impenetrable court orders, attacks that attempt to obtain jury nullification.

The Court needs to put a stop to these illegal theories and defenses in order for the government to receive a fair trial. The government, too, is entitled to a fair trial.

What’s the point of a trial by jury if the jurors cannot use their own judgment?

Protest signs outside courthouse (Oregonian pix)