What are the chances Bundy mistrial ruling could be reversed?

Bundy case protesters (Pix via Oregonian)

As we noted two weeks ago, it is rather curious that the judge in the Bunkerville standoff case declared a mistrial because the prosecution failed to timely turn over evidence that she previously had deemed inadmissible.

Today the Las Vegas newspaper picked up on the fact the prosecution made this very argument in “recently unsealed court papers opposing the dismissal,” though the unsealing was two weeks ago. The paper quoted that document as saying, “The government did not withhold material to gain a tactical advantage or harm the defendants. Rather, it litigated these issues in good faith, arguing the materials were neither helpful nor material and provided reasoned explanations for its decisions.”

The prosecution further argued in that unsealed document, which was reported by The Orgeonian two weeks ago:

The government has extensively briefed the issue of evidence relevant to a claim of self-defense and/or third-party state of mind (beliefs). … The gravamen of these motions was seeking the Court’s guidance regarding the limits of what did or did not relate to a cognizable defense or relevant state of mind (beliefs), to preclude the possibility of jury nullification.

Excessive force claims usually arise in the context of arrest/resisting arrest cases
where police force is used. In those case, the courts analyze the force requirement under
the Fourth Amendment — a situation wholly different from the charges in the Indictment.
The Indictment does not charge that any defendant resisted arrest. Under these
circumstances, any use or threat of use of force is analyzed under the Due Process Clause. (“Inasmuch as no juror has a right to engage in nullification—and, on the contrary, it is a violation of a juror’s sworn duty to follow the law as instructed by the court — trial courts have the duty to forestall or prevent such conduct…”) (citation omitted).

The government’s disclosure decisions were informed, in part, by the Court’s ruling
on these issues…. Relevant to the government’s disclosure decisions are the Court’s recent in limine rulings regarding the limits of cognizable defenses. First, the Court explained that its ruling from Trial 1—that Defendants were not entitled to a jury instruction on self-defense or justification—“is applicable to the upcoming trial because Defendants have failed to establish the essential elements necessary for the defense.”

This could be the basis for an appeal the 9th U.S. Circuit Court of Appeals seeking to overturn the mistrial.

The prosecution also argued:

Where both flagrancy and substantial prejudice are shown, a district court may
dismiss an indictment on one of two bases: outrageous government conduct that amounts
to a due process violation, or as an appropriate exercise of the Court’s supervisory powers.
… The standards to dismiss, either for a due process violation or under the district court’s supervisory powers, are high and permit dismissal only in extreme cases.

(“This is a high standard … and even in some of the most egregious situations it has not
been met” (internal citation omitted)).To violate due process, governmental conduct must be “‘so grossly shocking and so outrageous as to violate the universal sense of justice.’”

The morning paper helpfully broke down the case results so far:

Breakdown by the numbers

4 defendants’ cases were dismissed — Cliven Bundy, Ryan Bundy, Ammon Bundy, Ryan Payne

2 acquitted — Steven Stewart, Richard Lovelien

4 awaiting trial — David Bundy, Melvin Bundy, Joseph D. O’Shaughnessy, Jason Woods

7 pleaded guilty — Pete Santilli, Eric Parker, Scott Drexler, Micah McGuire, Gerald Delemus, Blaine Cooper, Brian Cavalier

2 convicted — Gregory Burleson, Todd Engel

Burleson was sentenced to 68 years in prison. The mistrial due to failure to disclose evidence surely will grounds for appeals, too.


One comment on “What are the chances Bundy mistrial ruling could be reversed?

  1. […] reason, as we noted here previously, is that the evidence the prosecution failed to turn over — which prompted the […]

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