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)

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?

 

 

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.

Welcome to the Star Chamber

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

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

Ammon Bundy (R-J pix)

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

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

Ryan Bundy (R-J pix)

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

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

 

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

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

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

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

 

 

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.