Head spinning developments in the so-far ‘non-trial’ of Bunkerville defendants

Caution: Following the Bunkerville standoff trial proceedings can cause whiplash.

Today the federal judge again delayed the start of the trial for Cliven Bundy, his sons Ammon and Ryan, and self-styled militia member Ryan Payne. This time for a week. She agreed to hold hearings after Cliven Bundy’s attorney asked the charges be dropped because the prosecution had failed to reveal any recordings or notes taken off live surveillance video of the Bundy ranch during the April 2014 standoff. Ryan Bundy raised the question as to whether there was surveillance video several weeks ago.

“If it has potentially useful information, then the defense is entitled to it,” the judge is quoted by Reuters as saying. “I‘m not convinced that it doesn’t exist.”

The federal agents reportedly shredded documents after the standoff ended.

And now, after more than a year and a half in jail, the judge said she would hold a hearing Thursday to determine the four men should be hould be released from jail during the trial. “It’s possible a halfway-house setting could be devised,” the judge is quoted as saying by the AP. Now but not a year and half ago?

The four 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.

So far, in the case — which goes out of the armed protest against the BLM 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.

Equal justice or crapshoot?

Outside courthouse (R-J pix)

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What fate awaits the Bunkerville standoff defendants in latest trial?

Bunkerville standoff. (R-J pix)

Equal justice under the law?

Today Bunkerville rancher Cliven Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, go on trial 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.

They have been jailed for nearly two years pending trial. The trial is expected to take months to complete. Six more defendants, including two more Bundy sons, Dave and Mel Bundy, is scheduled for 30 days after the current trial ends.

In an earlier trial defendants Ricky Lovelien of Oklahoma and Steven Stewart of Idaho were acquitted of all charges by a jury. That jury acquitted two others of many charges but could not reach a unanimous verdict on four counts against Eric Parker and two counts against Scott Drexler, both of Idaho. Parker’s attorney told The Associated Press that a juror told him that votes were 11-1 for acquittal on those six counts.

Parker and Drexler have since pleaded guilty to a misdemeanor and released for time served.

Internet blogger Peter Santilli entered a guilty plea to a conspiracy charge earlier this month and faces a potential six-year term.

Gerald “Jerry” DeLemus of New Hampshire pleaded guilty to conspiracy to commit an offense against the U.S. and interstate travel in aid of extortion. He was sentenced to seven years in prison.

A jury convicted Gregory Burleson of Arizona of eight counts, including assault, threats, extortion, obstruction of justice, and multiple gun charges. He was sentenced to more than 68 years in federal prison. Todd Engel of Idaho was convicted by the same jury but apparently has not yet been sentenced but faces up to 30 years in prison.

The fate of those now on trial may depend largely upon who is picked as jurors. The judge in the case has ruled that the defendants may not argue that their actions were justified by the First Amendment right to free speech or their Second Amendment right to bear arms. She 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.”

So far the Bunkerville prosecutions have not resulted in equal outcomes.

Facade of U.S. Supreme Court

Bunkerville case: Sometimes you have to play the odds

Justice as a crap shoot?

After a year and half in jail facing life in prison, after two trials with dismissal of some charges and hung juries on others, while facing a third trial along with well known defendants in the 2014 Bunkerville standoff, two Idaho men decided to not roll the dice again but accept a plea bargain to a misdemeanor charge on Monday.

Eric Parker and Scott Drexler — originally accused of conspiracy, extortion, assault on federal officers and other counts — pleaded guilty to a misdemeanor charge of obstructing a court order. They are freed following their second trial and are expected to not serve any more time in jail. They will retain their rights to own weapons but will be on probation, according to news accounts.

During the second trial for Parker and Drexler jurors could not reach a unanimous verdict on four counts against Parker and two against Drexler. Parker’s attorney told The Associated Press that a juror told him that votes were 11-1 for acquittal on those six counts. The jury acquitted two other Idaho men of all charges.

“We started off with 11 different felonies with the possibility of life in prison,” Las Vegas defense lawyer Jess Marchese quoted as saying. “Now we are talking about a year of probation.”

The lawyer also said the October 1 massacre on the Strip by a man from Mesquite played a role in the decision, since the co-defendants are from the same area. The next trial in the Bundy case is scheduled to begin Oct. 30. The trial was delayed several weeks because of the shooting that left 58 dead and about 500 injured at an outdoor music concert.

What were the odds? That’s what Parker and Drexler had to ask themselves, not whether they would get justice.

Bunkerville standoff (Reuters pix)

 

Newspaper column: Time to release Bunkerville defendants on bail?

Bunkerville standoff (Reuters pix)

Whether you think the defendants in the Bunkerville standoff are a bunch of lunatic, dangerous gun-nuts who should be locked up and the key thrown away or upstanding patriots defending property and constitutional rights in the face of belligerent bureaucrats, it matters not what you think.

What matters is what jurors think.

So far jurors seem less than enthusiastic about embracing the pile of charges heaped on the first of the standoff defendants.

When Bureau of Land Management agents and their hired cowboys showed up at Cliven Bundy’s ranch in April 2014 to confiscate his cattle — for which he had refused to pay grazing fees for decades — hundreds of people showed up to exercise their First Amendment right to protest. Some also exercised their Second Amendment right to bear arms.

A year and half ago prosecutors filed charges of obstruction of justice, conspiracy, extortion, assault and impeding federal officers among other things against 17 of those protesters, including Bundy and four of his sons. Until this past week all remained jailed without bail.

The defendants were separated into three groups for trial. The first trial took place in April with the other two to follow shortly thereafter. But those plans went awry.

The April trial of six men ended with no one being convicted of conspiracy, the most serious charge. Two men were convicted of some of the charges and jurors hung on the remaining four. Jurors told defense lawyers after the trial they never came close to convicting four defendants, voting 10-2 in favor of acquitting two of them and splitting on the others.

Despite the majority of jurors in the first trial voting to acquit, all four were retried. This past week the jurors in that trial — despite not being allowed to hear defense arguments about constitutional rights or possible law enforcement excesses —reached not-guilty verdicts on 34 of 40 counts.

The six men and six women acquitted Ricky Lovelien of Oklahoma and Steven Stewart of Idaho of all charges.

The jurors could not reach a unanimous verdict on four counts against Eric Parker and two counts against Scott Drexler. Parker’s attorney told The Associated Press that a juror told him that votes were 11-1 for acquittal on those six counts.

Prosectors nonetheless have decided to retry Drexler and Parker on those six counts in September, meaning the remaining 11 defendants will have their trials pushed back yet again, even though the Sixth Amendment guarantees a speedy trial.

Drexler and Parker, both of Idaho, are being allowed to return home pending their third trial on ever dwindling charges.

Cliven Bundy’s attorney, Bret Whipple, and the attorneys for several other defendants have filed motions seeking to have their clients released pending trial.

“Our position has always been that it’s political instead of criminal,” Whipple told the Las Vegas newspaper. “And now it seems to be subjective instead of factual. There’s a whole fairness issue that I think is overlooked.”

Etched on the facade of the Supreme Court building in Washington is: “Equal Justice Under Law.”

In the Bunkerville standoff prosecution thus far two have been convicted of some charges, two acquitted of all charges and two face retrial on some charges, reportedly due to the intransigence of one juror.

Only one man has been sentenced, and his conviction may have had less to do with what he said and did at the standoff than what he said afterward.

Gregory Burleson, an avowed Arizona militiaman, told an undercover FBI agent posing as a documentary filmmaker, “I was hell bent on killing federal agents that had turned their back on we the people.”

Burleson testified, “Yes, I said a lot of crazy things. I’m ashamed of them actually. … Looking back at them, it’s like, ‘Wow, obviously I shouldn’t drink.’”

He was sentenced to 68 years in prison. For shooting off his mouth, not his guns?

Shortly after Cliven Bundy, 71, was arrested the prosecution argued that “Bundy is a danger to the community and poses a risk of non-appearance,” even though he agreed to any travel, firearm or GPS tracking restrictions the government might impose.

“Cliven Bundy is about as likely to hurt someone or to flee Nevada as a desert tortoise,” attorney Joel Hansen argued at the time. “It just isn’t going to happen.”

It costs nearly $90 a day to house a federal prisoner. Perhaps it is time the judge considers freeing the remaining defendants on bail pending trial.

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: According to the AP, a federal judge has scheduled jury selection to begin Oct. 10 for the trial of Cliven Bundy, two of his sons and four others — including two whose recent retrial ended in a hung jury on some charges.

 

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 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.