Defense attorneys accuse Bunkerville prosecution of making a ‘mockery’ of trial

The federal public defenders representing Montana militia member Ryan Payne mince no words in responding to the prosecution’s response to their motions — unsealed on Wednesday, though heavily redacted — to have charges dismissed against their client and co-defendants Cliven Bundy and his sons Ammon and Ryan.

The attorneys accuse the government of failing to turn over pertinent evidence to the defense. They write that the government is relying on incorrect legal arguments to excuse their failure.

Quoting the 9th U.S. Circuit Court of Appeals, the motion states, a “trial prosecutor’s speculative prediction about the likely materiality of favorable evidence . . .should not limit the disclosure of such evidence, because it is just too difficult to analyze before trial whether particular evidence ultimately will prove to be ‘material’ after trial,” adding, “Thus, ‘there is a significant practical difference between the pretrial decision of the prosecutor and the post-trial decision of the judge.’”

The four face charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers as a result of the 2014 armed standoff with federal agents who unsuccessfully attempted to impound Bundy’s cattle for failing to pay grazing fees for two decades.

Ryan Payne at an Oregon protest

About a month into their trial the judge declared a mistrial over the fact the prosecution had failed to timely disclose evidence to the defendants. But the very evidence that prompted the mistrial was evidence the judge had earlier deemed inadmissible because it amounted to an argument that the accused were provoked to act.

“As a general defense to the numerous discovery violations this Court recognized in its preliminary oral findings, the government now claims the withheld materials are irrelevant because Payne’s purported defense is ‘non-cognizable,’” the public defenders argue. “This argument misrepresents both the nature of Payne’s defense and the government’s awareness of it, and seeks to relitigate matters this Court has already decided. More fundamentally, however, the government ignores that the withheld evidence undermines its own theory of prosecution advanced in the indictment and in every trial since then.”

Some of the withheld evidence was an admission that snipers were deployed around the Bundy ranch, though the indictment itself stated, “On or about April 7, 2014, PAYNE used the internet and other facilities in interstate commerce to recruit gunmen and others to travel to the Bundy Ranch for the unlawful purpose of interfering with impoundment operations, stating falsely, among other things, that the Bundy Ranch was surrounded by BLM snipers …”

The motion called the prosecution’s handling of disclosure reckless and said “for nearly over a year, while Payne sat in pretrial detention, the government assured both the Court and the defense that it was aware of its disclosure obligations, that it had complied with its obligations, and that the defense was merely fishing in a dry pond by making outlandish discovery requests.”

The motion concludes, “The government has treated this trial as a scrimmage game, a practice exercise, to see what it can get away with, peeking into the defense case while it did so and taking advantage of its preview. The government’s handling of its disclosure obligations and the government’s late disclosures have made a mockery of this trial and ‘nothing more than a colossal waste of everybody’s time,’ during which Payne remained incarcerated for the vast majority of that time.”

The attorneys asked that the charges be dismissed with prejudice because of the government’s conduct, as has occurred in a similar case.