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)


22 comments on “Bunkerville standoff prosecutors again try to limit defense arguments

  1. deleted says:

    Because jurors don’t get to decide what the law is. That’s what the legislature is for.

  2. Might they be allowed to decide that the prosecutor misapplied the law?

  3. Jurors routinely ignored those run-away-slave laws.

  4. deleted says:

    Prosecutors don’t apply the law judges do. And Jurors did lots of things, ever read “To Kill A Mockingbird”.

    Ever wonder why blacks think the system is slanted against them when they can’t get a white jury to convict a white man for killing a black man in the south?

    There’s your jury nullification for you; the “right” of the majority in power to negate all laws because they say so.

  5. Steve says:

    “In the only well-documented Supreme Court case involving a jury trial, first Chief Justice of the Supreme Court John Jay, explicitly acknowledged to jurors their right to judge the law as well as the facts in the case. Samuel Chase, the only Supreme Court justice ever impeached, was impeached in part because of his refusal to allow attorneys to argue jury nullification to the jury.”

    Sometimes it is even discussed in open court, before a judge and jury.

    A recent example of this took place in 2015 in the case of Kyler Carriker
    While the prosecution had reportedly taken steps pre-trial in order to preclude discussion of jury nullification, during the trial the state apparently then turned around and brought it up before the jury. Because of this, defense attorney Sarah Swain was able to discuss the subject in the presence of the jury as well.

    The jury found Carriker Guilty of a minor marijuana-related charge, but found him Not Guilty of the felony murder charge. Reportedly jurors were polled after the verdict was delivered and comments from jurors indicated that the Not Guilty verdict was a case of jury nullification.

    Jury nullification is an integral part of our legal and justice systems, upheld by SCOTUS precedent.
    Moreover, despite “instruction” people are people and they will always consider their own opinions in any such situation. Unless you think people are little more than robots, that is.

  6. Rincon says:

    The risk posed by allowing judges to dismiss evidence willy nilly is greater than the risk posed by juries misapplying the law. Let the juries hear the evidence.

  7. deleted says:

    With the exception of the “unanimously unqualified” judges the Dotard and his fellow conservatives seem intent on vomiting on the American judicial system, judges are trained to know and decide what evidence the jury is to hear, and for good reason; juries are supposed to decide cases based on the evidence and not on irrelevant, inflammatory….stuff.

    And certainly juries are not qualified, nor authorized, to make law. Therefore, they may not nullify the law made by legislatures vested with that authority pursuant to the Constitution.

    Otherwise, you get To Kill A Mockingbird whenever a black man faces an all white jury in some southern (or rural) county.

  8. Rincon says:

    As if judges were beyond reproach. If judges are so trustworthy, why not just get rid of juries?

  9. deleted says:

    Judges are far beyond reproach but they are trained, they are licensed, and they are answerable. None of which jurors are.

    And, most importantly for purposes of our “beloved” constitutional republic; they are the ones given the authority.

    Other than that though jurors rule.

  10. deleted says:

    Should be “judges are not beyond reproach”

  11. Rincon says:

    Certainly, judges should prevent chaos in the courtroom and direct the proceedings, but so far as I can tell, they have immense powers to suppress evidence for questionable reasons and I feel that power should be limited more than it is. Whether they are answerable is highly debatable. Unless they pull some truly ridiculous shenanigans, I don’t think most of them have anything to worry about.

  12. deleted says:

    Well judges are either appointed or elected and even the appointed judges, mostly, are appointed for a set term. That means the elected ones are answerable to the electorate, and the appointed ones are answerable to whomever appointed them who in turn are answerable to the people that elected them.

    And jurors are answerable to no one.

    And as I said, judges are trained, educated, and licensed, and jurors are not. So like with any profession, the ones that are trained, educated, and licensed, to do something, are presumed to know more than those that aren’t.

    Letting jurors decide things, means the lunatics are in charge of the asylum which can’t be a good thing if there’s any hope for anyone getting justice.

  13. deleted says:

    I think a great example Rincon of even judges having lifetime appointments being answerable’ is the lunatic judge that sat on the case involving Wayne Hage.

    He’d been cautioned several times for his refusal to do what the law said, until finally after issuing the baseless decision he did, the court yanked him off the case and removed him from further cases.

    Don’t know how you feel about the jurors (or even the case) involving OJ’s murder trial, but as far as I can see, the only thing they answered to was their publishers when they called to ask where to send the checks.

  14. Steve says:

    OH you love to blame the jurors for Ito’s failure to keep the media out of his courtroom.
    All that did was make it impossible for him to keep a nameplate on his door!

    But Marsha Clark is worth some 4.2 million dollars from her media and book deals!

    Yeah, jurors get ALL the big interest….what a sham! HA!

  15. The judge in the Hage case was right. The 9th was wrong.

  16. Anonymous says:

    The judge in the Hage case was definitely “right” unfortunately he was wrong about everything that had to do with the law.

    And its not bad enough that he was wrong about the law, it was that his bias was SO extreme, that he wasn’t fit to even be on the case. Which is why they removed him and put him in the closet or maybe more appropriately :”out to pasture”.

  17. No, the judge understood how irrational the prosecutions arguments were.

  18. Steve says:

    And, Gloria Navarro is being spoken to as we enjoy our holiday season…..bet me?

  19. Steve says:

    All bets are off! Not only is she being taken to the woodshed, the prosecutors are being whupped to!


  20. deleted says:

    Well Thomas, that’s certainly one mans opinion.

    Maybe the 9th Circuit Courts opinion about his (consistently bias and egregious behavior, which included cited case law that stood for precisely the opposite of what Judge Jones said it did) would break the tie.

    Click to access 13-16974.pdf

  21. Steve says:

    In Patrick’s sham world, discovery is at the behest of the prosecutor……

    Shammy, the sham plea king, strikes again!

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