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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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?

 

 

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.

 

 

Newspaper column: What evidence is pertinent in Bundy trials?

Pardon us plebs, but we are a tad bit confused about just what is admissible evidence in the Bunkerville standoff trials.

This past week, about a month into the second of three scheduled trials, the judge declared a mistrial because the prosecution had failed to timely turn over potentially exculpatory evidence to the defense.

Federal Judge Gloria Navarro listed six instances in which prosecutors willfully withheld evidence — including information about an FBI surveillance camera, documents citing the presence of snipers, certain maps, FBI logs, threat assessments that showed the Bundys weren’t violent and internal affairs documents detailing possible misdeeds by the Bureau of Land Management agent in charge, who was later fired.

The judge ruled the material might have been useful in shaping a defense for the protesters who showed up at Cliven Bundy’s ranch in April 2014 when BLM agents attempted to impound 500 head of his cattle for failing to pay $1 million in grazing fees and fines for two decades.

Cliven Bundy (Getty pix)

According to press accounts, Judge Navarro noted FBI log entries 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 accuse, the judge chided.

Curious. In an earlier trial, Judge Navarro 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.

During that trial the judge had granted a sweeping prosecution motion to bar arguments about the defendants’ “state of mind,” such as whether they were provoked by the government’s massive show of force.

She ruled that defense could not mention nor show video or audio depicting the arrest of Cliven’s son Dave Bundy in which he was wrestled to the ground; nor any recordings showing the tasering of son Ammon Bundy or a BLM agent grabbing Cliven’s sister Margaret Houston from behind and throwing her to the ground; nor any testimony or opinion about the level of force displayed by law enforcement; nor references to Bundy’s grazing, water, or legacy rights on the public lands; no references to infringements on First and Second Amendment rights; and no mention of the punishment the defendants faced if convicted.

It appears some of the very things not allowed in evidence at an earlier trial are now grounds for a mistrial because the defense was not provided documentation.

To add further to the contortions and machinations of this case, just days before the judge declared a mistrial the prosecution filed a motion similar to the one granted in the prior trial. It asked the judge to not allow the introduction of “evidence or argument at trial that relate to instigation/provocation, self-defense/defense of others, entrapment, justification for violent self-help, impermissible state of mind justification, and collateral attacks on the court orders.” The motion said presenting any of this to the jury would amount to jury nullification. (Bundy motion on jury nullification)

In this trial Cliven Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, face charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Faced with armed protesters during the cattle impoundment, agents released the cattle rather than risk a shootout.

“The law does not permit the defendants to expand the legally cognizable defense of self-defense against a law enforcement officer by incorporating instigation and provocation,” the latest motion states. “To do so would eviscerate the well-recognized elements of self-defense. Defendants, rather, seek to introduce evidence of instigation and provocation to obtain jury nullification. Jury nullification is illegal.”

Rather than slap a lien on the Bundy ranch and cattle or freeze the ranch’s bank accounts, the BLM instead chose to send in an armed force to oversee the rounding up of Bundy’s cattle by contracted cowboys. The operation has been estimated to have cost $3 million. Once the cattle were corralled and off the grazing range, there was no hay to feed them and reportedly no one willing to take the cattle.

Additionally, withheld documents reportedly included statements that no threatened desert tortoises were ever found to be harmed by Bundy’s cattle, the reason the BLM tried to limit his grazing in the first place.

A hearing in the case is set for January. Unless the judge decides to dismiss the charges, a retrial is slated for late February. What evidence would be allowed?

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.

Update: Motions seek to have charges thrown out.

Attorneys seek to have charges against Bunkerville defendants thrown out

Bunkerville standoff defendants and family members (AP pix)

Unsealed but redacted motions by federal public defenders demand that the judge dismiss charges against the four Bunkerville standoff defendants with prejudice.

Among other things the motions noted that the indictment of rancher Cliven Bundy, four of sons and others included allegations that  armed protesters were recruited to come to the ranch to oppose a BLM impoundment of Bundy’s cattle “by falsely stating Cliven Bundy’s house was ‘surrounded by snipers.’ … The government also alleges Cliven Bundy’s message over the internet stating
that ‘they have [his] house surrounded … [that the BLM] are armed with assault rifles … [and that] they have snipers’ was a deceptive statement made to encourage others to travel to Bundy Ranch for unlawful purposes.”

But there were in fact, according to documents revealed at the start of the current trial, snipers deployed.

“In essence, the government’s theory is that the recruitment of others flourished as a result of a ‘false narrative’ that was being disseminated, one which highlighted the surrounding of Cliven Bundy’s house and the presence of snipers,” one motion states. “This false narrative is an anchor in the government’s case: the government argues hundreds of people came to the Bundy Ranch in reliance on the false narrative and that the false narrative was further used as a pretext to mount a massive armed assault on the government on April 12, 2017. Given the government’s theory of the case, it was stunning to hear the government state on November 29, 2017, that it did not know information on the surveillance cameras and snipers would be helpful to the defense because it was ‘it’s not apparent to us that an LPOP would be or a surveillance camera would be interpreted as a sniper.'”

So the whole false narrative argument is itself false.

The motion argues that it matters not whether the prosecution intentionally withheld evidence from the defendants, but whether there was “flagrant prosecutorial misconduct” in a case in which defendants face sentences upward of 57 years, “a life sentence for any of them.”

This motion concludes:

The fact that the government sought to ask a jury to convict these defendants and then ask this Court to sentence them to prison for the rest of their lives without giving the defense the information recently disclosed should more than trouble this Court. Anything short of dismissing this case with prejudice implicitly conveys to the prosecution that “behave[ing] with such casual disregard for [their] constitutional obligations and the rights of the accused” is acceptable conduct
and “endorse[s] and invite[s]” repetition of those transgressions.

This motion further raises the issue as to the fairness of the earlier trials in which some defendants were convicted — with one being sentenced to 68 years in prison, noting that it is clear those defendants did not have the information the defendants in this trial have just received. “The legal theories of defense may have been structured differently, which would have allowed those defendants to present critical evidence,” the motion states.

Motions posted by The Oregonian include:

Ryan Payne motion to dismiss based on discovery provided Nov. 17, 2017

Ryan Payne motion to dismiss based on discovery provided Nov. 21, 2017

Ryan Payne motion to dismiss based on continuing pattern of evidence violations

Ryan Payne reply to a government response to motion to dismiss

From the indictment:

Another mistrial declared in Bunkerville standoff case

Justice delayed is justice denied.

Today the judge in the latest Bunkerville standoff trial declared yet another mistrial, according to a Gannett news account. The first trial earlier this year ended in a mistrial. She has tentatively set a new trial for February, nearly four years after the standoff between armed protesters and BLM agents attempting impound Cliven Bundy’s cattle for failure to pay grazing fees for two decades.

Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, were being tried in federal court in Las Vegas for charges stemming from that April 2014 armed standoff. Charges include obstruction of justice, conspiracy, extortion, assault and impeding federal officers. The agents released the cattle rather than risk a shootout. A third trial, including two other Bundy sons, is scheduled for after this trail ends, if it ever does.

As grounds for the mistrial, Judge Gloria Navarro cited five instances in which prosecutors failed to disclose to the defense certain evidence in a timely manner. This included records about surveillance and snipers at the Bundy Ranch, FBI logs, threat assessments about the Bundys and internal affairs reports about BLM agents. Navarro said that evidence could have been useful to the defense and altered the trial outcome.

The judge has scheduled a hearing for January.

So far, in the case two have been acquitted by a jury, two have pleaded to a misdemeanor and released on time served, one pleaded to conspiracy charge and faces up to six years in prison, another was convicted and sentenced to seven years another was convicted and sentenced to 68 years in prison and still another was convicted and is awaiting sentencing but faces up to 30 years.

Ammon Bundy outside courthouse earlier in trial. (AP pix)

 

Bunkerville standoff prosecutors again try to limit defense arguments

The prosecution in the Bunkerville standoff case have once again asked the judge to prohibit the defendants from arguing to the jury that their actions were justified because they were provoked by the aggressive deeds of federal agents attempting to impound Cliven Bundy’s cattle.

In a motion filed Monday, the prosecution is asking federal Judge Gloria Navarro to not allow the introduction of “evidence or argument at trial that relate to instigation/provocation, self-defense/defense of others, entrapment, justification for violent self-help, impermissible state of mind justification, and collateral attacks on the court orders.”(Bundy motion on jury nullification) The motion said this would amount to jury nullification.

The judge granted a similar motion this past summer in the second of three scheduled trial. She said the defense would not be allowed to mention the tasering by law enforcement of one of Bundy’s sons and the wrestling to the ground of one of his sisters.

The current trial is to resume Wednesday unless the judge declares a mistrial or dismisses charges due to claims the prosecution failed to provide defendants with timely exculpatory evidence.

Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, are being tried in federal court in Las Vegas for charges stemming from the April 2014 armed standoff with BLM agents attempting to confiscate Bundy’s cattle for failure to pay grazing fees on public land. Charges include obstruction of justice, conspiracy, extortion, assault and impeding federal officers. The agents released the cattle rather than risk a shootout.

“The law does not permit the defendants to expand the legally cognizable defense of self-defense against a law enforcement officer by incorporating instigation and provocation,” Monday’s motion states. “To do so would eviscerate the well-recognized elements of self-defense. Defendants, rather, seek to introduce evidence of instigation and provocation to obtain jury nullification. Jury nullification is illegal.”

The motion argues:

Most recently, Ryan Payne says he was at Bundy Ranch solely to protect the Bundy’s from what “he reasonably and sincerely believed to be a threat of unlawful violence.” … He further asserts that his actions were provoked or instigated by “the government’s own and unreasonable conduct.” … According to Payne, the government provoked and/or instigated him into doing something lawful – that is, according to Payne, “protect” Bundy without forming any intent to do a criminal act. It remains difficult to see how the information produced in discovery, including recently produced information, supports this claimed defense theory.

Defendant Cliven Bundy, and perhaps others, seeks to rely on the defense of entrapment. But his entrapment defense relies exclusively on his theories of instigation and provocation, when, in fact, neither instigation nor provocation supports a defense of entrapment. Furthermore, not a shred of evidence supporting the legally cognizable elements of entrapment — inducement and predisposition — exists.

The motion uses the term jury nullification repeatedly.

In her earlier ruling, Navarro quoted a 9th U.S. Circuit Court of Appeals ruling: “Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt.”

The concept of jury nullification dates to colonial days and is widely taught in journalism schools, because it involved printer John Peter Zinger who was indicted for criminal libel against the colonial governor and tried in 1735. His attorney Andrew Hamilton offered as a defense that what was printed was true, even though under the law truth was not a defense but rather a confirmation of guilt.

The judge at Zenger’s trial ruled that Hamilton could not present evidence as to the truth of the printed statements.

In his closing argument Hamilton declared, “It is the cause of liberty … and by an impartial and uncorrupt verdict have laid a noble foundation for securing to ourselves, our posterity, and our neighbors, that to which nature and the laws of our country have given us a right to liberty of both exposing and opposing arbitrary power (in these parts of the world at least) by speaking and writing truth.”

The jury quickly returned with a verdict of not guilty.

In 1794, Chief Justice John Jay said to jurors in a rare Supreme Court jury trial, “It may not be amiss, here, Gentlemen, to remind you of the good old rule, that on questions of fact, it is the province of the jury, on questions of law, it is the province of the court to decide. But it must be observed that by the same law, which recognizes this reasonable distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and to determine the law as well as the fact in controversy.”

The prosecution in the Bunkerville case argues:

They justify their attacks on the court orders, or their arguments around the court orders by arguing the relevancy of the states of mind or of the justification. Regardless of how they shroud their arguments, they are impermissible attacks on impenetrable court orders, attacks that attempt to obtain jury nullification.

The Court needs to put a stop to these illegal theories and defenses in order for the government to receive a fair trial. The government, too, is entitled to a fair trial.

What’s the point of a trial by jury if the jurors cannot use their own judgment?

Protest signs outside courthouse (Oregonian pix)