Newspaper column: Judicial bias depends on the party involved

Bias, like beauty, is in the eye of the beholder.

Earlier this year a three-judge panel of the San Francisco-based 9th U.S. Circuit Court of Appeals overturned a decision by Reno federal Judge Robert Clive Jones involving water rights in the Walker River Basin and ordered him removed from the case, saying he was biased against the federal government’s attorneys.

“We reluctantly conclude that reassignment is appropriate here because we believe (1) that Judge Jones would have substantial difficulty putting out of his mind previously expressed views about the federal government and its attorneys, and (2) that reassignment will preserve the appearance of justice,” wrote Judge A. Wallace Tashima, noting that in two previous cases the 9th Circuit had said Jones “harbored animus toward the federal agencies” and that “the judge’s bias and prejudgment are a matter of public record …”

In the Walker River case the previous evidence of bias was based on the fact Jones had stated, “[E]ven though the government in many cases didn’t have the right to insist upon a permit … nevertheless, the government in many cases has insisted upon it. … I don’t like and never have liked the BLM’s or Forest Service’s arrogant presumption that they could assess to people for … trespass, their own travel costs, office costs, sitting in their big chair already paid for by the American taxpayer.”

Sounds like a factual assessment rather than bias.

The other case in which bias was alleged involved the Hage family ranch near Tonopah in which Jones accused government officials of entering into “a literal, intentional conspiracy to deprive the Hages not only of their permits but also of their vested water rights. This behavior shocks the conscience …”

He ruled the government had interfered in the case by urging others to apply for the Hages’ grazing permits, by applying themselves for the Hages’ water rights and by issuing trespass notices against witnesses soon after they had testified.

Now, if one wants to consider bias, perhaps one should review the federal judge’s behavior in the trial of some of the defendants in the 2014 Bundy ranch standoff, in which federal agents attempted to confiscate Bunkerville rancher Cliven Bundy’s cattle for trespassing on federal land without a permit. The agents backed down when confronted by armed protesters.

Federal Judge Gloria Navarro granted the prosecution’s sweeping call for limits on defense evidence — including arguments that the defendants felt justified to show up and protest the confiscation of Bundy’s cattle because of abusive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

Navarro noted in her ruling, “The Court also rejected Defendants’ proposed instructions on the First and Second Amendment because they are not legally cognizable defenses, or in other words, the law does not recognize these Amendments as legal defenses to the crimes charged.”

Navarro later declared a mistrial because prosecutors failed to disclose evidence of that “abusive force,” which was barred from being presented as evidence.

Then there is the federal judge who heard the trial of Cliven Bundy’s sons Ammon and Ryan and others for the 41-day armed takeover of the Malheur National Wildlife Refuge in Oregon to protest the lengthy sentences assessed two ranchers for letting backfires burn a few acres of federal land.

After they were acquitted, Utah lawyer and rancher Todd Macfarlane reported in the spring issue of Range magazine that the judge in the case, Anna Brown, once was quoted as saying, “The federal government has so many resources at its disposal, and is so meticulous in its work, that I would never expect to see a criminal defendant acquitted in my court.”

Macfarlane described the judge’s treatment of the prosecution and defense in the trial as grossly disparate.

“What I have learned since then is that this is not unique to the Bundy cases. According to a growing body of evidence, federal judges have become so accustomed to favoring the prosecution that they no longer seem to recognize what they’re doing,” he wrote.

No one raised so much as an eyebrow over the behavior of Navarro and Brown in their cases, but Judge Jones gets slapped down — not so much for showing bias, but for which party he allegedly showed bias.

One person’s bias is another’s hard-earned experience.

A version of this column appeared this week in many of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel and the Lincoln County Record — and the Elko Daily Free Press.

Malheur standoff (AP pix)

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