7-21-17 Thomas Mitchell : 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.
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?