Bunkerville standoff case likely to be determined by the 9th Circuit

Cliven Bundy released from jail. (Photo by R-J’s K.M. Cannon via AP)

As Yogi Berra said, “It ain’t over till the fat lady sings.”

In the matter of the Bunkerville standoff case, the fat lady may be the 9th U.S. Circuit Court of Appeals. Though the judge on Monday dismissed the case against Cliven Bundy, two of his sons and a Montana militia man “with prejudice,” meaning the charges can’t simply be refiled and another trial scheduled, according to the Reuters account, The Associated Press notes that the U.S. attorney, Dayle Elieson, released a one-sentence statement saying she will make a determination about whether to challenge the ruling before the appellate court.

Four years after the standoff, in which armed protesters faced off with heavily armed BLM agents attempting to impound Bundy’s cattle for failure to pay $1 million in grazing fees and fines for two decades, and millions of tax dollars spent by the prosecution, what are the chances the feds will not appeal to the reliably liberal and prosecution-sympathetic 9th Circuit?

Witness the court’s pro-government rulings in both the Walker River Irrigation District and the Wayne Hage ranch cases. On both cases the court found that a federal judge’s hard-earned, keen-eyed determination that the federal land agencies were running rough shod over the defendants amounted to bias on the judge’s part rather than accurate judgment.

In the Walker River case the court found evidence of bias in the fact that the judge had stated, “I believe in constitutional rights. I believe in protecting the rights of the Native Americans and in property rights that have been recognized over time, I believe in that and that’s my agenda.”

Another factor may be that nearly all the disclosure evidence that the prosecution failed to turn over to the defense, which resulted in a mistrial and the dismissal of charges, were deemed not admissible in earlier trials. Could that be grounds for appeals in the handful of convictions in those trials, since the discovery was not available then? One man was sentenced to 68 years in prison.

For example, the judge noted that the prosecution failed to give to the defense log entries that said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no excuse, the judge chided.

In an earlier trial, the same judge kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense. The judge had ruled that evidence of provocation was not admissible.

Also, according to AP, the judge has set a Feb. 26 trial date for four defendants still awaiting trial, including two more Bundy sons, Mel and David. What will they be allowed to argue in their defense, if the trial goes forward?



Welcome to the Star Chamber

Justice must not only be done, but it must be seen to be done.

Much of the evidence in the high-profile Bunkerville standoff case has been cloaked in secrecy due to a blanket court protective order that requires just about everything filed in the case to be filed under seal.

Ammon Bundy (R-J pix)

Now, U.S. District Judge Gloria Navarro is conducting hearings behind closed doors. After dismissing the jury until Dec. 20, the judge closed the court to all but the parties in the trial to hear arguments about whether the prosecution failed to disclose evidence to the defendants in a timely manner, according to a press account.

Cliven Bundy, his sons Ammon and Ryan, and self-styled militia member Ryan Payne face felony charges, including conspiracy, assault and threats against federal officers, firearms counts, obstruction and extortion for which a conviction could carry a sentence of 170 year in prison. They are accused of staging an armed confrontation in 2014 with BLM agents who were rounding up Bundy’s cattle for failing to pay grazing fees for for 20 years. The roundup to collect $1 million in grazing fees is said to have cost $3 million, though it is questionable whether Bundy’s mangy range cows were worth even $1 million. Who knows how much the string of trials is costing taxpayers.

Ryan Bundy (R-J pix)

Prosecutors have been given until Friday to respond to the judge’s questions about whether they failed to meet deadlines for providing discovery evidence on at least seven occasions and and 14 other potential violations of the defendants’ rights.

The judge has hinted that failure by the prosecution to adequately respond could result in a mistrial because the failures might be “sufficient to undermine the confidence in the outcome of the trial,” but defense attorney are asking that the charges be dismissed outright  due to prosecutorial misconduct.


The newspaper quoted Cliven Bundy’s attorney Bret Whipple as saying, “I hope to get the case dismissed before the jurors come back.”

Daniel Hill, an attorney for Ammon Bundy, said, “That’s exactly what dismissal is designed for — when the government proceeds while violating their constitutional mandates.”

But, since the hearings were behind closed doors, the taxpayers were denied the ability see just how serious the allegations against their tax-funded prosecutors really are. We can’t see what we are paying for — justice or injustice.

Justice must not only be done, but it must be seen to be done.



Editorial: A suggestion for a presidential commutation

The Hammond family.

The Hammond family.

President Obama has now commuted the federal prison sentences of more than 1,000 prisoners, mostly non-violent drug offenders. Most have served far more time in prison than if they committed the same crime today, because previous mandatory sentencing laws have been relaxed.

Which brings us to H.R. 5815 — Resource Management Practices Protection Act of 2016 — introduced by Oregon Rep. Greg Walden. The bill would amend the Antiterrorism and Effective Death Penalty Act of 1996, which was passed following the Oklahoma City bombing and requires a minimum of five years in prison for anyone convicted of damaging federal property by fire or explosives.

The bill would exempt from prosecution anyone who sets a fire on his own property to prevent damage — such as a backfire — or if that person is using a generally accepted practice for managing vegetation on timber, grazing, or farm land and fire doesn’t result in death or serious bodily injury — even if that fire spreads to federally controlled land.

Which brings us to Dwight Hammond and his son Steven, two Oregon ranchers now serving mandatory five-year sentences because fires set on their own property escaped onto federal land, burning a grand total of 140 acres — one was a controlled burn and the other a backfire to protect their own property from a lightning sparked blaze.

Even if passed, the bill would not result in the freeing of the Hammonds but could protect others from such frivolous prosecution in the future.

The bill has cosponsors from Idaho, Washington, Arizona and Utah but none from Nevada.

When the Hammonds were first convicted veteran federal Judge Michael Hogan refused to impose the five-year mandatory minimum, saying that was “grossly disproportionate to the severity of the offenses here.”

The judge reasoned, “Out in the wilderness here, I don’t think that’s what the Congress intended. And in addition, it just would not be — would not meet any idea I have of justice, proportionality.” He gave the father three months in jail and the son a year and a day.

The U.S. attorney appealed and the 9th U.S. Circuit Court of Appeals, based in San Francisco, ordered the Hammonds must serve the remainder of that five-year sentence.

It was the resentencing of the Hammonds that prompted protesters to take over the buildings at the Malheur National Wildlife Refuge for more than a month this past January. But the Hammonds made it clear at the time they had nothing to do with the protesters and peacefully turned themselves in to the authorities and have been jailed since.

The protesters included two of the Bunkerville Bundy brothers, Ammon and Ryan, already notorious for their standoff with federal agents in 2014 who were trying to confiscate their cattle.

A jury earlier this year refused to convict the Bundys and five other protesters for the refuge takeover, but the Bundys and others face charges next year over the Bunkerville incident.

Obama announced in 2014 that he would use commutations to right the wrong of overly harsh sentences that did not fit the crime.

White House Counsel Kathryn Ruemmler said at the time, “The president believes that one important purpose [of clemency] can be to help correct the effects of outdated and overly harsh sentences that Congress and the American people have since recognized are no longer in the best interests of justice.”

The Hammonds would appear to fit in that category.

A version of this editorial appeared this week in some of the Battle Born Media newspapers — The Ely Times, the Mesquite Local News, the Mineral County Independent-News, the Eureka Sentinel,  Sparks Tribune and the Lincoln County Record.