Newspaper column: Bundy case judge trying to prevent jury nullification

The retrial of four defendants in the 2014 Bunkerville standoff at the Bundy ranch got underway this past week in Las Vegas, and this time the prosecution and the judge seem determined to avoid another mistrial due to a hung jury by eviscerating defense arguments.

Federal Judge Gloria Navarro granted a prosecution motion to bar presentation of evidence “supporting jury nullification.”

In April, the first of three scheduled trials for the 17 Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others.

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.

Two more trials are pending, with Cliven Bundy and his four sons scheduled to be the last. Most defendants have been jailed without bail for a year and half.

In mid-June the prosecution filed a motion asking the judge to bar the jurors in the retrial from hearing certain so-called state of mind arguments — arguments that the defendants felt justified to show up and protest because of “perceived government misconduct” due to excessive use of force by law enforcement and that they were simply exercising their First and Second Amendment rights.

The defense will 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 judge said the reasons the defendants went to Bunkerville are not relevant to the charge, but she will allow prosecutors to introduce testimony about the four men’s associations with militia groups.

“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 wrote, though the Bill of Rights were added to the Constitution to spell out natural rights that Congress must not trammel with its laws.

The First Amendment bars Congress from making laws abridging free speech and peaceful assembly, while the Second states the right to keep and bear arms may not be infringed.

But apparently those are not defenses against laws prohibiting behavior that causes federal officers to feel threatened.

Navarro concluded, “The Court will not permit argument, evidence, or testimony regarding Defendants’ beliefs about the constitution as such beliefs are irrelevant and a possible jury nullification attempt.”

The judge 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.” And you thought jurors made that determination.

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.”

Did jurors in the first trial nullify the law or merely find the law was misapplied?

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.

Protests outside courthouse. (R-J pix)

Federal judge won’t allow Bundy defendants to present evidence that might’ve resulted in hung jury

Protesters outside courthouse during first Bunkerville standoff trial, which ended in a mistrial. (R-J pix)

railroad —  to convict with undue haste and by means of false charges or insufficient evidence; to push through hastily or without due consideration

Before jury selection began Monday in the retrial of four defendants in the 2014 Bunkerville standoff at the Bundy ranch federal Judge Gloria Navarro granted a prosecution motion to bar presentation of evidence “supporting jury nullification.”

In April, in the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

The standoff occurred after armed Bureau of Land Management agents attempted to roundup Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties. Faced with armed protesters the BLM agents eventually released the cattle and left to avoid potential bloodshed.

Two more trials are pending, with Cliven Bundy and his four sons scheduled to be the last. Most defendants have been jailed without bail for a year and half.

Two of Bundy’s sons, who had been arrested on separate but similar charges of illegally occupying an Oregon wildlife refuge to protest the jailing of father and son ranchers under a terrrorism law for letting fires get out of control and burn a few acres of federal public land, were acquitted of those charges this past fall by a jury, along with their co-defendants.

In mid-June the prosecution filed a motion asking the judge to bar the jurors in the current trial in Las Vegas from ever even hearing certain so-called state of mind arguments — 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 Monday that in the first trial she had rejected the Bill Rights arguments and that would stand for this trial. “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 ruling)

A rather convoluted argument, but what else would one expect from those who see their jobs as enforcing laws rather than upholding rights.

The Bill of Rights were added to the Constitution in order to spell out certain inalienable rights that Congress must not trample with its laws.

First Amendment: “Congress shall make no law … abridging the freedom of speech … or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”

Second Amendment: “… the right of the people to keep and bear arms, shall not be infringed.”

But those are not defenses against laws prohibiting behavior that causes federal officers to feel threatened.

Navarro quoted from a 9th U.S. Circuit Court of Appeals ruling on the topic of jury nullification:

Jury nullification occurs when a jury acquits a defendant, even though the government proved guilt beyond a reasonable doubt. …  [J]uries do not have a right to nullify, and courts have no corresponding duty to ensure that juries are able to exercise this power, such as by giving jury instructions on the power to nullify. … On the contrary, “courts have the duty to forestall or prevent [nullification], whether by firm instruction or admonition or . . . dismissal of an offending juror,” because “it is the duty of juries in criminal cases to take the law from the court, and apply that law to the facts as they find them to be from the evidence.”

Juries are just rubber-stamps.

Navarro concluded, “The Court will not permit argument, evidence, or testimony regarding Defendants’ beliefs about the constitution as such beliefs are irrelevant and a possible jury nullification attempt.”

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 of the truth of the printed statements. “The law is clear that you cannot justify a libel,” the judge said. “The jury may find that Zenger printed and published those papers, and leave to the Court to judge whether they are libelous.”

Here is a portion of Hamilton’s closing argument:

It is natural, it is a privilege, I will go farther, it is a right, which all free men claim, that they are entitled to complain when they are hurt. They have a right publicly to remonstrate against the abuses of power in the strongest terms, to put their neighbors upon their guard against the craft or open violence of men in authority, and to assert with courage the sense they have of the blessings of liberty, the value they put upon

Andrew Hamilton arguing Zenger case.

it, and their resolution at all hazards to preserve it as one of the greatest blessings heaven can bestow. …

The loss of liberty, to a generous mind, is worse than death. And yet we know that there have been those in all ages who for the sake of preferment, or some imaginary honor, have freely lent a helping hand to oppress, nay to destroy, their country. … This is what every man who values freedom ought to consider. He should act by judgment and not by affection or self-interest; for where those prevail, no ties of either country or kindred are regarded; as upon the other hand, the man who loves his country prefers its liberty to all other considerations, well knowing that without liberty life is a misery. …

But to conclude: The question before the Court and you, Gentlemen of the jury, is not of small or private concern. It is not the cause of one poor printer, nor of New York alone, which you are now trying. No! It may in its consequence affect every free man that lives under a British government on the main of America. It is the best cause. It is the cause of liberty. And I make no doubt but your upright conduct this day will not only entitle you to the love and esteem of your fellow citizens, but every man who prefers freedom to a life of slavery will bless and honor you as men who have baffled the attempt of tyranny, 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.

 

 

During Bundy case retrial, state wants to quash evidence

Bundy ranch standoff. (Reuters pix)

Voir dire begins this week in the retrial of four defendants in the 2014 Bundy ranch standoff — or as a friend of mine always notes, voir dire is French for jury tampering.

In April, in the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

The seating of a jury sympathetic to a given side’s arguments is always paramount in such trials.

The prosecution wants jurors ready and willing to punish those who dare to “threaten” and “extort” law enforcement officials simply doing their duty.

The defendants want jurors who are willing to accept that people may exercise both their First and Second Amendment rights in the face of excessive force by government agents.

In mid-June the prosecution filed a motion asking the judge to bar the jurors from ever even hearing such arguments. The judge reportedly has not yet ruled on the motion, which makes it tough for the defendants to prepare for trial.

The motion signed by Assistant U.S. Attorney Steven Myhre argues that certain evidence, such as the culpability of the law enforcement victims, should not be allowed to be presented.

The government specifically wished to prohibit:

  • April 6, 2014, officer encounters with civilians during the arrest of Dave Bundy, including any testimony concerning, or video/audio depicting, that event;
  • April 9, 2014, officer encounters with civilians during the convoy block, including any testimony concerning, or video/audio recordings depicting officer encounters with Ammon Bundy or Margaret Houston;
  • Third-party/lay person testimony or opinion about the level of force displayed or used by law enforcement officers during impoundment operations, including operations on April 12, 2014;
  • References to the opinion/public statement of Governor Brian Sandoval of April 8, 2014, and/or opinions registered by other political office holders or opinion leaders about BLM impoundment operations;
  • References to First Amendment zones;
  • References to Cliven Bundy’s grazing, water, or legacy rights on the public lands;
  • References to infringements on First and Second Amendment rights; and
  • References to punishment the defendants may face if convicted of the offenses.

And you thought the jury tries the facts and the facts include the circumstances. The state doesn’t want the jury to also try the law, a process called jury nullification — a term that recurs often in the prosecution motion.

The concept of jury nullification dates to colonial days when a jury acquitted printer John Peter Zenger of libeling the colonial governor even though he was clearly guilty under the law as written. The jury nullified the law, because they deemed the law wrong.

Jurors have since acquitted people accused of harboring slaves and violating Prohibition, among other things.

The state argues, “To adduce evidence of these events, whether on direct or cross-examination or in closing argument, unfairly prejudices the government by placing it in a position of having to prove a negative; that is, to explain or prove that the officers did not act unlawfully or otherwise supposedly overreach their authority.”

Isn’t that what trials are for?

But the motion goes on to argue:

To allow otherwise, merely provides the defendants with a vehicle to expound upon their beliefs about the First Amendment, the BLM, their alternative reality view of the world, and a host of other irrelevant matters – all in an attempt to nullify the verdict. … (“To permit nullification in cases where a defendant has a ‘good’ reason for his conduct when motive is not an element of the crime allows jurors to use their individualized set of beliefs as to ‘good’ reasons to be determinative of guilt or innocence”).

The state apparently is fearful the jurors might not fully buy into the ready answer to the question: “Did this defendant intentionally threaten a law enforcement officer?”

The officer might have felt threatened, but did the defendant threaten or merely exercise his free speech right while carrying a gun?

As for the remaining Bundy case defendants who have spent a year and a half in jail, pay no attention to the Sixth Amendment guarantee of a speedy trial.

If judge calls Bundy defendant a ‘bully vigilante’ during sentencing, how fairly will others be treated?

Gerald DeLemus (Facebook)

The first man to be sentenced for charges growing out the Bundy ranch standoff in April 2014 is to be imprisoned for more than seven years, even though he did not arrive at the ranch until hours after it ended when BLM agents released Cliven Bundy’s cattle rather than risk a shootout with armed protesters.

Gerald “Jerry” DeLemus of New Hampshire pleaded guilty in August to conspiracy to commit an offense against the U.S. and interstate travel in aid of extortion. U.S. District Judge Gloria Navarro sentenced DeLemus to year longer than expected, saying she faulted him for trying to withdraw his plea and that she didn’t think he accepted responsibility for his deeds.

The judge also called DeLemus “a bully vigilante, threatening peacekeepers of the community.” Can’t help but wonder how the other defendants who were actually at the standoff will fare before this judge. Might attorneys quote that in arguments seeking a different judge who has not yet made up her mind?

After showing up at the Bundy ranch DeLemus camped out for a month helping to organize arms patrols and acting as a spokesman for the militia members.

One of the reasons DeLemus may have tried to withdraw his plea is how the case against others is turning out.

Two of Cliven Bundy’s sons, who had been arrested on separate but similar charges of illegally occupying an Oregon wildlife refuge to protest the jailing of father and son ranchers under a terrrorism law for letting fires get out of control and burn a few acres of federal public land, were acquitted of those charges this past fall by a jury, along with their co-defendants.

In April, the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

The four defendants against whom jurors were deadlocked on all charges are scheduled to be retried in July, meaning the other defendants might not face trial till next year, after having been jailed without bail for two years.

One other person has pleaded guilty and is awaiting sentencing, as are the two convicted in the April trial.

DeLemus, who co-chaired the New Hampshire Veterans for Trump coalition, reportedly will seek a pardon from Trump and ask Attorney General Jeff Sessions to intervene in the prison sentence.

DeLemus’ wife Susan, a former two-term Republican state representative in New Hampshire, has been quoted as saying her husband signed his guilty plea to “take the fall.”

DeLemus told the court that he crossed the country with his guns because he had heard government snipers were posted on the ranch and said was willing to “take a bullet” to protect the family. “My concern was that someone would get hurt,” he was quoted as saying. “It wasn’t the cows. I didn’t want that family injured. God will know in the end.”

He also quoted a Bible passage about there being no greater love than to lay down one’s life for one’s friends. “I may not have given it out there,” he said. “I’m giving it now, in jail.”

Bunkerville standoff (Reuters pix)

 

Editorial: Rip the veil of secrecy from the Bundy case

Bunkerville standoff (Reuters pix)

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

The wheels of justice continue to grind in the federal criminal case against Cliven Bundy, four of his sons and a dozen co-defendants over the April 2014 armed standoff with federal agents trying to confiscate Bundy’s cattle at his Bunkerville ranch. All of the defendants have been jailed for more than a year.

The standoff occurred after armed Bureau of Land Management agents attempted to roundup Bundy’s cattle after he had refused for 20 years to pay grazing fees in the Gold Butte area. The BLM said he owed $1 million in fees and penalties.

Faced with armed protesters the BLM agents eventually released the cattle and left to avoid potential bloodshed.

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

But the press — specifically the Las Vegas daily newspaper, this newspaper and The Associated Press — continue to fight for openness. Just this past week attorney Maggie McLetchie filed a writ with the 9th U.S. Circuit Court of Appeals asking that the veil of secrecy be lifted, because it “is anathema to the First Amendment” and longstanding court precedent from the 9th Circuit itself.

McLetchie argues, among other things, that much of the rationale for keeping material secret is merely to protect government agents from legitimate criticism of their conduct. She also says the protective order is  based on “speculation and scaremongering” supported almost entirely by a series of years-old online social media posts.

Since the arrests of most of the defendants back in February 2016, things have not gone swimmingly for the government.

Two of Bundy’s sons, who had been arrested on separate but similar charges of illegally occupying an Oregon wildlife refuge to protest the jailing of father and son ranchers under a terrrorism law for letting fires get out of control and burn a few acres of federal public land, were acquitted of those charges this past fall by a jury, along with their co-defendants.

In April, the first of three scheduled trials for the Bunkerville defendants — charged with obstruction of justice, conspiracy, extortion, assault and impeding federal officers — ended in a mistrial. The jury found only two of six people on trial guilty of some charges but deadlocked on the others. The jurors agreed to convict on only 10 of the 60 charges brought. None of the conspiracy charges stuck.

In January, the Interior Department’s Inspector General released a 16-page investigative report outlining misconduct and ethical violations by the BLM agent who supervised the Bundy cattle roundup. The report never named the agent but said he abused his powers by obtaining preferential treatment for family and friends at the 2015 Burning Man event on BLM land, misused BLM personnel and equipment, improperly intervened in hiring a BLM agent and attempted to influence an employee’s testimony during the Inspector General’s investigation of him.

News accounts identify the agent as Dan Love.

McLetchie noted that the misconduct allegations add fuel to the “general public’s concern that the government mishandled the investigation in this case.”

Her writ quotes from a 9th Circuit ruling from 1983 in which The Associated Press sought information about a criminal case. The court stated there “can be little dispute that the press and public have historically had a common law right of access to most pretrial documents. … Moreover, pretrial documents, such as those dealing with the question whether [a defendant] should be incarcerated prior to trial and those containing allegations by [a defendant] of government misconduct, are often important to a full understanding of the way in which ‘the judicial process and the government as a whole are functioning.’”

Seems on point for the Bundy case.

The defendants from the first Bundy trial are to be retried in late June on the same day Cliven Bundy, his sons and others were scheduled for trial. The court has yet to say what the schedule will be for the long-jailed remaining defendants.

The court needs to shine more light on this case so the public can see whether justice is being done.

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.

 

Is Cliven Bundy an anti-Federalist?

Cliven Bundy with his ever-present copy of the Constitution in his pocket.

When you work with words, your words should work.

While it was gratifying to see the morning paper finally get around to writing about the difficulty federal prosecutors are having getting jurors to convict armed protesters in Oregon and Bunkerville of conspiracy — Now, where have I read that before? — this one description of cattle rancher Cliven Bundy caused a bit of whiplash: “notorious anti-federalist rancher Cliven Bundy …”

This is being said of a man who is invariably photographed with a copy of the U.S. Constitution prominently protruding from a breast pocket.

Strictly speaking — and you may accuse me of being a stickler — anti-Federalists were those who opposed the ratification of that Constitution in 1788. Bundy frequently cites the Constitution as the grounds for his contention that the state rather than the federal government is the proper custodian of public lands, and he and his supporters have on occasion cited the principles of Federalism.

Federalism is a system of governance in which federal powers are enumerated and limited, such as interstate commerce, while the state and local governments and citizens are free to exercise other powers, such as law enforcement and land use.

James Madison wrote in Federalist Paper No. 45: “The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

Yes, the anti-Federalists did in fact warn about the potential for the central federal government to grow too big and powerful until it usurps the rights and powers of the states and citizens — hence the Ninth and Tenth Amendments were added to assure ratification.

But Bundy and his ilk surely consider themselves strict constructionists rather than anti-Federalists.

Bundy talks about Federalism:

 

By the way, isn’t a conspiracy charge just a cheap way for prosecutors to pile on and try to double the penalty for a conviction? It is one thing to accuse someone of a crime and assess a penalty upon conviction, but then to double the penalty simply because that person had the audacity to talk to someone about it?

 

Jurors not buying into prosecutors’ conspiracy theories

An agreement between two or more persons to engage jointly in an unlawful or criminal act, or an act that is innocent in itself but becomes unlawful when done by the combination of actors. — Legal definition of conspiracy

The feds have a poor batting average of late in proving conspiracy.

In the first trial of two Bunkerville Bundy brothers and others accused of conspiring to illegally occupy a wildlife refuge in Oregon to protest the sentences for father and son ranchers for setting fires, the jury acquitted them all.

In a second trial of four others in the refuge takeover, only two were convicted of conspiracy.

Now, a Las Vegas jury hearing the case against six men accused of conspiracy for showing up armed to protest the behavior of federal land agents rounding up Cliven Bundy’s cattle in April 2014 has refused to convict any of them of the charge of conspiracy. Two men were convicted of other charges and the jury hung on the other four. The judge declared a mistrial.

It took six days for the jurors in the Bunkerville standoff trial to declare themselves hung.

It took six hours for the Oregon jurors to acquit in the first trial there.

According to Oregonlive, the jurors “decided the government hadn’t proven that protesters deliberately conspired to stop federal employees from carrying out their duties through intimidation, threat or force.”

The jurors apparently believed they each acted on their own accord, spontaneously showing up. “The jury kept looking for evidence of an agreement between two or more people to interfere with federal workers at the refuge and found none, said Juror 4, a Marylhurst University business administration student and the only one to speak publicly about the decision,” the news website states.

After the mistrial in Las Vegas the judge set a retrial of those six for June 26, the same date Cliven Bundy and four sons and others were scheduled to be tried for their roles in the Bunkerville cattle roundup protest. Presumably this pushes the Bundy family trial further into the year. Their trial was supposed to start 30 days after the first trial but the judge set June 26 at the request of prosecutors.

Cliven Bundy’s attorney already has accused the judge of violating his constitutional right to a speedy trial due to the June 26 date. Bundy has been jailed since February 2015.

Might the prosecutors be contemplating a superseding indictment without all those conspiracy charges?

Bundy family members read Monday’s jury decisions outside the federal courthouse in Las Vegas. (R-J pix)