The lead prosecutor in the Nevada standoff case against Cliven Bundy, two of his sons and a fourth alleged ringleader told a jury in his opening statement last month that the case centered on the need to respect the rule of law.
Five weeks later, it was the prosecution team’s abuse of the rule of law that sunk the case, leading to a judge’s declaration Wednesday of a mistrial.
U.S. District Judge Gloria M. Navarro methodically listed the prosecution’s six separate violations of the Brady law, which requires turning over evidence potentially favorable to the defense. The judge further ruled that each violation was willful.
If ever there was a time when federal prosecutors needed to make sure they acted with complete integrity it was in the high-stakes Bundy case, legal observers say. The defendants already held a deep suspicion of the government and had successfully rallied followers to their cause.
Now, the question becomes whether prosecutors can pursue a new trial, and the judge’s finding of deliberate misconduct gives the Bundys a good argument to seek an outright dismissal and walk away free men, legal experts said.
In the meantime, the dissection has begun: How could prosecutors have lost sight of due process, one of the basic tenets of the legal system.
“At the heart of this case is the question, Is the government an entity you can trust? Certainly if you’re the prosecution in this case, you needed to do everything you can to show the government can be trusted,” said Kevin Sali, a Portland criminal defense lawyer.
The judge’s rebuke of Nevada’s Acting U.S. Attorney Steven Myhre, the lead, and two seasoned veteran Assistant U.S. attorneys, Daniel Schiess and Nadia Ahmed, was remarkable in and of itself.
“This is every prosecutor’s nightmare,” said Kent Robinson, a retired federal prosecutor who served six years as chief of the criminal division in Oregon’s U.S. Attorney’s Office.
When a judge makes a finding of misconduct by a prosecutor, the U.S. Department of Justice’s Office of Professional Responsibility investigates and determines if discipline is warranted, which can range from a reprimand to a suspension.
That scrutiny is underway. Ian D. Prior, deputy director of public affairs in the Justice Department, announced that U.S. Attorney General Jeff Sessions “takes this issue very seriously.”
Sessions “has personally directed that an expert in the department’s discovery obligations be deployed to examine the case and advise as to next steps,” Prior said.
The government also could pull the plug on the case, without a judge’s further ruling, as it has done in the past on other prosecutions.
Cliven Bundy, sons Ammon and Ryan Bundy and Ryan Payne, a Montana militiaman who came to help them, faced multiple charges, including federal conspiracy to impede federal officers through intimidation, threat or force, assault on federal officers and extortion. If convicted, they could face more than six decades in prison, what would essentially be a life term for the 71-year-old patriarch.
CASE WAS CHALLENGING FROM THE START
The complexity of the case presented a significant challenge for prosecutors, say seasoned defense lawyers and current and former prosecutors.
For one, the Nevada indictments didn’t come until nearly a year and a half after the 2014 armed standoff. Cliven Bundy, his two sons and Payne were accused of rallying militia members and other supporters to thwart the court-ordered impoundment of the family’s cattle on federal public land after years of Bundy’s failure to renew a grazing permit or pay resulting fees and fines. Federal officers, outnumbered and outgunned, retreated.
With the passage of so much time, prosecutors had to track down numerous witnesses and documents in a vast bureaucracy and jog foggy memories.
Another complication was the number of agencies involved — including the U.S. Bureau of Land Management, the National Park Service and the FBI – and reports that went back at least a decade.
Federal land agents and Park Service rangers aren’t as familiar with what they must turn over as evidence because they’re not as accustomed to federal prosecutions of such breadth, other prosecutors said. In the judge’s ruling, however, she specifically criticized the FBI, an agency that routinely works on these types of cases, for failing to share agents’ basic reports.
“I think it’s an agency problem more than a prosecution problem,” Robinson said. “I think sometimes agencies just don’t understand what they need to show to prosecutors.”
Regardless, as the judge made clear, the law requires prosecutors to “learn of the material in the possession of other agencies as well.”
Prosecutors often rely on the lead case agents from the investigating agencies for that information because it’s impractical for any individual prosecutor to wade through what could be millions of pages of reports, other prosecutors say.
It didn’t help that Dan Love, the Bureau of Land Management special agent in charge of the Bundy cattle roundup, was subsequently investigated for misconduct in an unrelated case and no longer works for the agency.
Additionally, the Nevada prosecutors faced increased pressure after they were largely unsuccessful in two other trials this year of more minor players in the Bunkerville standoff, and their counterparts in Portland failed to convince a jury last year to convict Ammon and Ryan Bundy in the January 2016 armed takeover of the Malheur National Wildlife Refuge in southeastern Oregon.
Some legal observers questioned whether that heightened strain in a such a high-profile case caused prosecutors to cut corners.
Yet the 1963 landmark U.S. Supreme Court case Brady v. Maryland has long set out their fundamental obligations to share any potentially favorable evidence with the defense.
Other high-profile cases that have been tossed over similar Brady violations – such as the botched 2008 corruption trial against former Alaska U.S. Senator Ted Stevens – should have put every prosecutor on notice of the seriousness of their obligations, legal observers say.
“They’re adversaries looking to win a case. They’re also public officials required to help the other side,” Sali said. “I recognize that it’s a challenge to do this, and the defense attorney does not have the same burden.
“But there’s been so many high-profile failures by prosecutors in recent years that you’d think they’d get it and err on the side of caution, and if there’s any doubt they’d just turn the material over.”
PROSECUTORS DIDN’T TAKE BUNDYS SERIOUSLY
Ian Bartrum, a constitutional law professor at University of Nevada Las Vegas, said he’s struggled to understand what led to the prosecutors’ “tone deafness” to their obligations.
He rejects a conspiracy theory floating around that prosecutors intentionally threw the case because their bosses in Washington, D.C., in the Trump administration may not support it.
“To me, the more likely scenario is they’re not taking the Bundys seriously, and there was this mindset ‘we can kind of just show up to win,”’ he said.
The judge, for example, noted in her ruling how the prosecutors dismissed Ryan Bundy’s pretrial motion for information on “mysterious devices” outside his family ranch as “fantastical” and a “fishing expedition,” and shrugged off another defense request for a suspected federal investigative report into BLM agent Love, calling it “urban legend.” This month, the government turned over nearly 500 pages of internal affairs documents on Love.
Perhaps the government wanted to keep “the Bundys’ rambling defenses” restricted to what it viewed as relevant, “and giving them more stuff to pore over and work with probably seemed like a bad idea,” Bartrum said.
“It’s either startling incompetence or striking arrogance,” he said.
Dwight Holton, a former Oregon U.S. attorney, said he believes some agents in the FBI still resist turning over information they deem too sensitive or confidential. The FBI keeps a “remarkably close hold on the counterterrorism side” of investigations, said Holton, speaking generally and not specifically about the Bundy case.
“I think there’s still an education process going on at the Department of Justice as to what material the FBI produces and needs to be turned over,” Holton said. “The ‘turn it all over’ attitude sometimes bumps squarely into the FBI ethos around maintaining control over security matters, especially in counter-terrorism operations.”
Holton said prosecutors also sometimes are unable to anticipate the defense theories. “It assumes we understand the defense. You don’t always know what’s helpful to the defense,” he said.
But that’s exactly why prosecutors must be cautious and turn over whatever they have, Bartrum said.
“Prosecutors don’t get to decide what’s relevant or not relevant,” he said.
Oregon’s U.S. Attorney’s Office took action after a federal judge in 2014 rebuked prosecutors over similar Brady violations in the quadruple murder case of Joey Pedersen.
“Our office led training for federal and state law enforcement agencies to make sure they understand what it means when we say give us everything,” Robinson said.
SECURITIES CASE MAY PROVIDE ROAD MAP
A criminal case heard 11 years ago in the same Nevada federal courthouse may provide some guidance on what’s to follow in the Bundy case.
Bret Whipple, Cliven Bundy’s lawyer, and other defense lawyers point to United States v. Chapman.
The 2006 securities fraud case ended with a mistrial based on fewer evidence violations by prosecutors than in the Bundy case and then was dismissed at a follow-up hearing. The 9th U.S. Circuit Court of Appeals upheld the dismissal.
In her Bundy ruling this week, Navarro said she chose to declare that each of the government’s violations were deliberate, though that finding wasn’t necessary for a mistrial.
“It does help to clarify the next step,” Navarro noted. She said she will decide later if the mistrial will be with prejudice, meaning prosecutors couldn’t retry the case.
Whipple said the judge’s findings provide a good argument for a dismissal; Navarro said the evidence withheld was “material” to the defense case and that each of the prosecution’s six “willful” violations resulted in due process violations. The documents confirmed a live-feed camera was aimed at the Bundy Ranch, and armed federal agents were watching the family home before the standoff, which the government had negated. About 3,300 pages of documents were turned over to the defense too late, the judge said.
In the Chapman case, prosecutors failed to share 650 pages of reports on prior criminal convictions, pleas and cooperating agreements of government witnesses, including three who had already testified at trial.
The judge ordered a mistrial in the third week of testimony in the Chapman case, mirroring Navarro’s words, saying he “regrettably” didn’t see how the trial could go forward. The judge ordered lawyers from both sides to submit briefs within 20 days arguing for and against a dismissal, held a hearing and then dismissed the indictment. In Chapman, the judge found the prosecutors’ Brady violations to be willful and in bad faith. The appellate court affirmed the dismissal, noting it stood on grounds of outrageous government conduct and due process violations.
Defense lawyers said the violations in the Bundy case are more extensive, involving thousands of pages of documents deliberately withheld.
“All we need to do is point out her findings that the evidence was ‘material,’ and the violations were ‘willful,’ and attach the Chapman case. In my mind that seals the deal,” Whipple said. “I’m confident we’ll get a mistrial with prejudice. One step at a time. We’re getting close.”
— Maxine Bernstein