Bunkerville trial takes another twisted turn

First, the judge in the federal trial of four defendants in the Bunkerville standoff case delayed the trial for a week because the defense accused the prosecution of not providing potential evidence. Now, three weeks into that trial, the judge has halted the trial over similar allegations.

According the website of the morning newspaper, the judge today hinted at the possibility of a mistrial, saying the failure to disclose potentially exculpatory evidence might be “sufficient to undermine the confidence in the outcome of the trial.”

The judge, after dismissing jurors until Wednesday, read a long list of documents, witness names and other information that she said government prosecutors did not provide to defendants in a timely fashion. The story at this time provides no details.

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.

After holding the four in jail since February of 2016, shortly after the start of the trial the judge agreed to release all four on what amounts to house arrest. Three accepted but Cliven Bundy refused her terms and remains jailed.

Will this case take another strange twist?

So far, in the case — which grows out of the armed protest against the BLM’s attempted confiscation of Bundy’s cattle for refusing to pay grazing fees — 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.
The trial of six more defendants, including two more Bundy sons, Dave and Mel Bundy, is scheduled for 30 days after the current trial ends … if it ever does.
Dave and Mel Bundy and two other defendants were finally released this past week.

Protesters outside courthouse. (R-J pix)

Advertisements

The strange Bunkerville case has further twists

The twists and turns in the Bunkerville standoff trial defy logic.

Weeks into the federal trial of 71-year-old rancher Cliven Bundy, two of this sons and self-styled militia man from Montana, the judge has decided that all of the defendants should be released from jail to what amounts to house arrest. Ryan Bundy was so released at the beginning of the trial but the judge refused to do the same for the others.

The four have been jailed since February 2016. The judge said she “reweighed” the evidence.

But in a further twist, after previously demanding he be released under whatever terms the court might impose — travel, firearm or GPS tracking restrictions — Cliven Bundy now refuses the offer, with his lawyer saying, “To be released, he would have to agree to conditions. In his opinion, he’s not willing to take a deal with the government when he hasn’t done anything wrong to begin with. … He’s very principled and he doesn’t want to violate those principals and I respect that,” according to High Country News.

This the third trial growing out of an April 2014 confrontation in which the BLM tried to confiscate Bundy’s cattle for failure to pay grazing fees for more than two decades, but backed off when confronted with armed protesters. Originally 17 people were charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers among other things. The defendants have claimed they were simply exercising their First and Second Amendment rights, but the judge has refused that to be used as a defense.

So far in this 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.

The trial of six more defendants, including two more Bundy sons, Dave and Mel Bundy, is scheduled for 30 days after the current trial ends, which is expected to last into February, unless something else odd happens.

Outside courthouse (R-J pix)

 

 

 

 

A jury of their peers? Hardly

A federal jury is set to begin hearing opening statements Tuesday in the trial of four defendants in the Bunkerville standoff.

There are six women and six men on the jury and there are four alternates, three men and a woman.

The judge said the trial is expected to take four months. A number of potential jurors were dismissed because they could not take four months out of their lives to devote to the trial. How many people can or are willing to? Is it a jury of their peers?

On trial are rancher Cliven Bundy, 71, sons Ammon Bundy, 42, and Ryan Bundy, 45, and a self-styled militia member Ryan Payne, 34, who showed up to protest the confiscation of Bundy’s cattle by the BLM. They are charged with conspiracy, extortion and various firearm charges. They have all been jailed for going on two years.

How can 16 people be found who can devote a third of a year of their lives to sitting in a jury box listening to tedious and repetitious testimony who are resentative of the population as a whole? It is not possible. The jurors are by definition outliers.

The jurors were asked 110 questions about their opinions on guns, protests, ranching, familiarity with the case, etc. Who but a hermit hasn’t heard of the case? Who doesn’t have opinions on guns, protests and ranching?

Peers? Hardly.

Federal courthouse in Las Vegas (AP pix)

According to The Oregonian, the jurors include:

— An Oregon native who moved to Nevada about four and a half years ago. She said she used to spend time in the Portland, Bend and Sunriver areas before moving to Nevada, where she enjoys the weather.

— A man who works at Mandalay Bay Resort and Casino and was there when the Oct. 1 shooting occurred and was escorted out of the casino at the time. He’s lived in Nevada for 25 years and said he likes the entertainment and slow place.

— A Texas native who said he’s lived in Nevada for nine years.

— A Nevada native who has spent 35 of his 45 years in the state. He said he liked Las Vegas for its 24-hour lifestyle.

— A woman who has lived in Nevada for 25 years, and during questioning, said she felt protests have become more violent in recent years.

— A Nevada native who recalled that her high school graduation was held at the Las Vegas convention center.

— A Minnesota native who said she has lived here about 30 years and likes the weather.

— A Nevada native who cited some “mild reservations” about repercussions to her family from serving on a jury in this case.

— A New Mexico native who said she enjoys the city parks and dog parks in the Las Vegas area.

Among the alternates is:

— A man who was questioned often about having seen some campaign literature that mentioned Cliven Bundy. The man said his step-uncle tried to show him the flier and believed Cliven Bundy was innocent. But the man said he wasn’t interested in looking at it. He also said he didn’t know much about the case. He raised his hand when Ryan Bundy asked if jurors understood what a “redress of grievance” is and he voiced his opinion that he doesn’t think an average person should have a “weapon of terror.”

— A man who said he understands there’s a constitutional right to bear arms, but that over time, amendments are adopted that reflect changes in the environment or society.

Prosecution continues to stretch out lengthy Bunkerville cases

Protesters outside courthouse in Las Vegas (R-J pix)

Speedy trial?

The prosecutors broke the 17 defendants in the Bunkerville standoff into three groups. Six would be tried in April and the others — including 71-year-old rancher Cliven Bundy and his sons — would be tried shortly thereafter.

But in April the jurors convicted only two of the six of any charges. Jurors told defense lawyers after the trial they never came close to convicting four defendants, voting 10-2 in favor of acquitting two and splitting on the others.

The government decided to retry those four and rejected Cliven Bundy’s bid to move up his trial, saying he would have to wait in jail until after the retrial. That retrial ended this week with two of the four being acquitted and the remaining two acquitted of all but a handful of lesser charges. All have been freed.

But the prosecutor has decided to retry for a third time the two for whom some charges remain unresolved, even though defense attorneys were told jurors at one point voted 11-1 for acquittal on all charges. The retrial of Scott Drexler and Eric Parker is scheduled for Sept. 25.

Meanwhile, 11 defendants remain in jail awaiting trial, even though two juries have largely voted against conviction of their co-defendants. This was even though in the latest trial the defense was handcuffed by the judge prohibiting any defense based on First and Second Amendment rights or excessive force by federal agents.

The 11 have been jailed for year and half. The further delays in their trials are due entirely to the prosecution being unable to convince jurors of guilt. So trials that could have started in May or June are again delayed?

The standoff occurred after heavily armed Bureau of Land Management agents attempted to confiscate Bundy’s cattle after he had refused for 20 years to pay grazing fees. Faced with armed protesters the agents eventually released the cattle. The 17 Bunkerville defendants were charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Is it time to consider freeing the remaining defendants on bond?

How much is this prosecutorial intransigence costing taxpayers?

 

 

 

 

Bunkerville defendant kicked off the witness stand by judge for, well, defending himself

First Amendment area cordoned off by BLM.

The judge in the trial of four defendants in the 2014 Bunkerville standoff with BLM agents attempting to confiscate rancher Cliven Bundy’s cattle has made it clear she will not allow a defense based on First or Second Amendment rights or claims that BLM misbehavior provoked the protest.

On Thursday she cut short the testimony of defendant Eric Parker after he tried to mention in his defense testimony a “First Amendment area” the BLM had set up to isolate protesters — an area that Gov. Brian Sandoval said “tramples upon Nevadans’ fundamental rights under the U.S. Constitution” — and attempted to mention where a BLM sniper was positioned.

BLM snipers?

The judge told Parker to step down without completing his testimony.  Reportedly there will be no cross examination and no jury questions.

Now, if Parker can’t even mention the First or Second Amendment, can he mention the Sixth?

You know, the one that guarantees the right to a speedy and public trial, rather than one that takes place a year and a half after an arrest; the one that guarantees an impartial jury, rather than one stacked by the prosecution to remove anyone who has ever even heard the phrase “jury nullification”; the one that guarantees the right to obtain witnesses in his favor, rather than having witnesses testify without the jury present, as happened earlier in the week.

This is the text of the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

No need to mention the Eighth’s prohibition against excessive bail and cruel and unusual punishment, nor the Fifth’s double jeopardy clause since the first trial ended in a hung jury, probably due to all that nonsense about constitutional rights to free speech, assembly and bearing arms that this jury will not hear.

Protesters outside courthouse. (R-J pix)

 

 

Newspaper column: Bundy acquittal renews debate over federal land

Ryan Bundy at the Malheur National Wildlife Refuge in Oregon this past January. (AP photo)

Ryan Bundy at the Malheur National Wildlife Refuge in Oregon this past January. (AP photo)

Apparently the unexpected acquittal in Oregon — on charges of illegally occupying a wildlife refuge to protest the jailing of father and son ranchers over fires that got out of control and burned a few acres of federal public land — has emboldened one of the Bundy brothers to the point of braggadocio.

In a telephone interview this past week from his jail cell Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area, next to his family’s Bunkerville ranch, as a national monument.

Bundy — who remains jailed while awaiting a February trial in Nevada, along with his father, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

The Post dismissed out of hand his arguments about who lawfully should be controlling federal public land, saying his arguments are “disputed by most mainstream constitutional scholars.”

Bundy argues that the Constitution does not grant the federal government the power to control vast tracts of land, nor does it give the president authority to single-handedly create national monuments.

His ill-advised bluster about revolution aside, there are legal scholars — perhaps not mainstream in the eyes of the Washington Post — who say Bundy and his ilk have a point.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress may abdicate that power, as it did with the Antiquities Act of 1906, granting presidents the power to create monuments.

A Heritage Foundation essay by a federal judge argues it does not: “Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the ‘accumulation of all powers, legislative, executive, and judiciary, in the same hands,’ writes James Madison in Federalist No. 47, ‘may justly be pronounced the very definition of tyranny.’”

The Supreme Court three times has upheld the Antiquities Act, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast acreage inside sovereign states.

Rufus King

Rufus King

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states has ever consented.

This issue was addressed in 1828, when Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land within their boundaries.

Their petition to Congress read in part: “If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse …”

It went on to say the land needed to be sold “within a reasonable time” so it could be taxed and government services provided.

Today the federal government controls only 4 percent of the lands in those states, while it controls 50 percent of the Western states, including 86 percent of Nevada.

The 1864 Nevada statehood document promises the state would get 5 percent of proceeds when “public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

It is 152 years subsequent to admission. Is that within a reasonable time?

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.

Behind the Bundy bluster is there a constitutional leg to stand on?

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

A sign at the entrance to the Bundy family’s ranch in Bunkerville, Nev. (Ronda Churchill for The Washington Post)

Even though he is still in jail, apparently the acquittal in Oregon has emboldened one of the Bundy brothers to bluster.

In a Monday telephone interview from jail Ryan Bundy told The Washington Post that there could be protests if Obama goes ahead with plans to designate the Gold Butte area next to his family’s Bunkerville ranch a national monument, something Sen. Harry Reid has said is all but certain before he and Obama leave office in January.

Ryan Bundy

Ryan Bundy

Bundy — who still faces a February trial in Nevada, along with his father Cliven, three brothers and others, over the armed standoff in 2014 with BLM agents trying to confiscate the family cattle — told the Post, “The government should be scared. They are in the wrong. The land does not belong to the government.”

He warned that, as the Declaration of Independence states, the people have a right to abolish an abusive government.

 

“The only peaceful resolution to all this is for them to obey the Constitution,” he told the Post. “Read it, understand it, abide by it. There doesn’t have to be violence. None of that has to happen if they would just abide by the Constitution.”

Asked whether violence was justified, Bundy tersely told the paper, “Ask George Washington.”

The Post dismissed his constitutional arguments out of hand, saying:

Repeating an argument common in the West but disputed by most mainstream constitutional scholars, Bundy said the Constitution does not grant the federal government power to own large tracts of land, nor does the president have legal authority to create national monuments. Bundy said that creating the Gold Butte monument would be an abuse of presidential power and a valuation of tourism and endangered species over the economic needs of struggling communities.

Article IV, Section 3 of the Constitution reads: “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States …”

The question is whether Congress has the power to abdicate that power and turn it over to the president, as it did with the Antiquities Act of 1906.

Heritage Foundation essay by a federal judge argues it may not:

Although the Constitution contains no explicit prohibition against Congress delegating its legislative powers (to the President or an administrative agency, for example), the principle of non-delegation is fundamental to the idea of a limited government accountable to the people. Indeed, the people, in whom sovereignty ultimately resides, carefully assign certain powers to each branch of government. The delegated powers are defined as placed in distinct branches of government for the “accumulation of all powers, legislative, executive, and judiciary, in the same hands,” writes James Madison in Federalist No. 47, “may justly be pronounced the very definition of tyranny.” While the executive must exercise some discretion in the application of law, lawmaking remains the prerogative of Congress. Since the New Deal, the Supreme Court has unfortunately sanctioned ever greater delegations of legislative power to administrative agencies. That the courts have flouted this principle does not mean that Congress can or should ignore this element of constitutional construction.

Still the Supreme Court has upheld the Antiquities Act three times, but on arguments other than constitutionality.

Then there is also the question of whether the Founders intended that the federal government control vast swaths of land in the sovereign states.

James Madison wrote in 1787 that Elbridge Gerry raised concerns during the drafting of the Constitution about giving Congress exclusive power over purchased lands, saying “that this power might be made use of to enslave any particular state by buying up its territory, and that the strongholds proposed would be a means of awing the state into an undue obedience to the general government.”

Delegate Rufus King moved to add the phrase “by consent of the legislature of the state.” It passed unanimously.

Yet none of the legislatures of the Western states, where the federal government controls so much land, ever consented.

This previously was addressed in 1828, when the Western states of Illinois, Indiana, Missouri, Arkansas, Louisiana, Alabama, and Florida petitioned to gain control of federal land:

The petition read:

It is of pressing moment that the public lands should become the property of their citizens, with the least delay compatible with the national interest.  The numerous petitions, memorials, and legislative resolutions, heretofore presented from them, evince the lively and anxious concern with which the present state of things impresses them.

If these lands are to be withheld from sale, which is the effect of the present system, in vain may the People of these States expect the advantages of well settled neighborhoods, so essential to the education of youth, and to the pleasures of social intercourse, and the advantages of religious instruction.  Those States will, for many generations, without some change, be retarded in endeavors to increase their comfort and wealth, by means of works of internal improvements, because they have not the power, incident to all sovereign States, of taxing the soil, to pay for the benefits conferred upon its owner by roads and canals.

When these States stipulated not to tax the lands of the United States until they were sold, they rested upon the implied engagement of Congress to cause them to be sold, within a reasonable time. No just equivalent has been given those States for a surrender of an attribute of sovereignty so important to their welfare, and to an equal standing with the original States.

Today the federal government controls only 4 percent of the lands in those “Western” states, while it controls 50 percent of the current Western states, including 86 percent of Nevada.

In fact, the Nevada statehood document includes language saying the state would get “five percentum of the proceeds of the sales of all public lands lying within said state, which shall be sold by the United States subsequent to the admission of said state into the Union …”

That is an implicit promise that the land shall be sold.

So, who is right? Bundy or most mainstream constitutional scholars? With or without the saber rattling.