Prosecution asks judge to reconsider Bundy case dismissal

Cliven Bundy released from jail. (AP pix)

Who didn’t see this coming?

On Wednesday federal prosecutors asked the federal judge to reconsider her decision to dismiss with prejudice the indictment against Bunkerville rancher Cliven Bundy, two of this sons and a Montana militiaman for the armed standoff with federal agents attempting to impound Bundy’s cattle in 2014 for failure to pay grazing fees and fines amounting to about $1 million.

The reason, as we noted here previously, is that the evidence the prosecution failed to turn over — which prompted the dismissal — had previously been deemed inadmissible and, therefore, could not be exculpatory under the Brady rule.

“To the extent the Court’s dismissal with prejudice is predicated on the materiality of the late-disclosed evidence to defendant’s theories of ‘self-defense, provocation, and intimidation,’ it is in error,” the appeal states. “Because these theories are not cognizable on the undisputed facts, they cannot form the basis of a Brady violation.”

The Appellate Chief for the U.S. Attorney’s Office Elizabeth White further argued, “The government believes the Court’s ruling is clearly erroneous in at least two ways, i.e., 1) it dismissed the superseding indictment with prejudice for ‘outrageous’ and ‘flagrant’ government misconduct predicated on the government’s failure to disclose certain documents that could be used only to support the legally non-cognizable and unsupportable defenses of self-defense, ‘provocation,’ and ‘intimidation’; or arguably to rebut three overt acts (out of more than 70) in furtherance of the alleged conspiracy; and 2) even assuming its findings of discovery violations were correct, the Court failed to consider less drastic remedies or tailor the remedy to the violations, as required by Ninth Circuit law. Reconsideration is therefore warranted.”

The Oregonian cited so-called federal legal experts who said the move was a tactical choice. They could have appealed directly to the 9th U.S. Circuit Court of Appeals instead. “The Nevada prosecutors may believe they can expand on arguments they made earlier and change the judge’s mind, or they may want to include information that they hadn’t presented before but believe they need to now to have in the court record before seeking an appeal,” the paper stated.

In another document the prosecution asked that the indictment of the remaining four defendants yet to face trial — Bundy sons Mel and Dave and two others — be dismissed with prejudice.

The chances of the judge reversing herself are slim, so expect this to be heard by the 9th Circuit.

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5 comments on “Prosecution asks judge to reconsider Bundy case dismissal

  1. txhoosick says:

    And we know the 9th’s predelictions ….

  2. Vernon Clayson says:

    More exacting detail is required in this rather small case than for the FICA court involving surveillance of the Trump campaign and presidency. Can we somehow bring Russia into the Bundy case to make it more threatening to the state and nation????

  3. deleted says:

    The Brady Rule, named after Brady v. Maryland, 373 U.S. 83 (1963), requires prosecutors to disclose materially exculpatory evidence in the government’s possession to the defense.

    A “Brady material” or evidence the prosecutor is required to disclose under this rule includes any evidence favorable to the accused–evidence that goes towards negating a defendant’s guilt, that would reduce a defendant’s potential sentence, or evidence going to the credibility of a witness.

    It’s a good argument and no matter how the court described the conduct, if her analysis was other than that the information withheld was directly related to the question of guilt, or of the credibility of witnesses, there was no need to disclose the information.

    Too bad Bundy is free because now, if the court does reconsider, and decides that he ought to be back in the slam, they’re probably going to have to call out the Feds again.

  4. Vernon Clayson says:

    Deleted, the Feds killed one protester for not moving quickly enough, do they really want to make an insurrection out of cow grazing??

  5. Steve says:

    “Who didn’t see this coming?”

    Hate say it…..but,
    I saw it. And I see it.

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