Did Judge Navarro Manipulate The Verdicts?
By Shari Dovale
The first tier defendants in the Bundy-Bunkerville Protest Trial completed this week with mixed verdicts. The jury found former FBI Informant Greg Burleson guilty on 8 of 10 charges, with brandishing enhancements for the firearms charges.
Additionally, the jury found Todd Engel of Boundary County, Idaho, guilty of 2 of the charges against him.
But what about the main charges of Conspiracy?
- Conspiracy to Commit an Offense Against the United States
- Conspiracy to Impede or Injure a Federal Officer
Court documents were released this week that suggest the jury had unanimously found all defendants Not Guilty of these two charges.
It is important to review the timeline for the events as we look at the documents.
The jury received the case for deliberations on Thursday, April 13th, though they did not have their first full day of deliberations until the following Monday, April 17th.
The jury sent questions to the court, which Judge Navarro promptly sealed from public view. No one has access to the actual wording of the questions from the jury, except the judge and the attorneys. This becomes an important point later in the discussion.
Based on the responses and discussion from the court, the gallery surmised that the jury had ‘hypothetical’ questions pertaining to the possibility of a hung jury. This meant they did not have consensus on all of the charges the defendants were facing.
Judge Navarro’s main concern through this entire trial has been the possibility of jury nullification. She appeared to have the same fears regarding the jury’s questions and responded that she was concerned with the jury considering sentencing or other extremes. She wanted to guide the jury “back down to a more narrow point of view.”
Three days later, the jury had more questions, which the court promptly sealed again from public view. These questions specifically seem to pertain to the conspiracy charges.
It was felt that the jury was confused on the jury instructions. The instructions apparently contradicted themselves, in that on one page they refer to “the defendants” yet another page would refer to “a person”.
The jury appeared unsure that if they found the defendants ‘guilty’ or ‘not guilty’ of the conspiracy charges, would they then be required to find all other charges with the same verdict?
Therefore, on April 20th, it would indicate that they had found agreement on several of the charges.
The jury took the weekend off and resumed their deliberations on the following Monday, April 24th. It was shortly after beginning that they came back with a response of having an agreement on some charges, yet they were deadlocked on many others.
Judge Navarro sent them back to deliberate longer under an “Allen Charge”, which is an instruction given by a court to a deadlocked jury to encourage it to continue deliberating until it reaches a verdict.
Some states prohibit Allen charges, because they deem them coercive, but the U.S. Supreme Court upheld their use in Allen v. U.S., 164 U.S. 492 (1896). Also called dynamite charge, nitroglycerin charge, shotgun charge, and third-degree instruction.
The prosecution had asked for the Allen charge, but the defense did not.
Later that same day, the jury stated they could not reach a full agreement and Judge Navarro accepted guilty verdicts on the aforementioned charges while declaring a mistrial on the remaining charges, including the two main conspiracy charges.
This is where it gets interesting.
*Disclaimer: I do not claim to be a legal expert, so my conclusions are not based on legal training.
The documents released are the official jury verdict forms. You can view them below.
The official forms are a part of the trial documents and cannot be altered or removed from the record. These documents are given to the jury for their deliberations. If a mistake is made on these documents, the jury foreman is to destroy that copy and request a new form.
The documents clearly show that the jury had reached an agreement on the conspiracy charges, marking ‘not guilty’ next to the names of all the defendants for both charges. However, it does appear that there had been a ‘strike-through’ made on these checkmarks.
However, there are no marks at all listed on the ‘guilty’ side of these charges. If the jury had changed their minds, it would be reasonable that they would have either gotten a new form, or marked the other side of the current form.
This suggests that the jury had unanimously decided that there was no actual conspiracy.
Going back to the questions that the jury posed to the court last Thursday, the jury gave the impression they were confused on whether or not they would be required to find all charges not guilty if they found the conspiracy charges not guilty. They clearly were in agreement on the guilty charges for Greg Burleson and Todd Engel.
There was a very interesting discussion between several people that was broadcast live. The points were made that this could be a case of “implied acquittal”. Following the case of Brazzel v. Washington, 484 F.3d 1087 (9th Cir. 2007), the court observed that:
“The doctrine of implied acquittal states that when a jury convicts on a lesser alternate charge and fails to reach a verdict on the greater charge–without announcing any splits or divisions and having had a full and fair opportunity to do so–the jury’s silence on the second charge is an implied acquittal.
A verdict of implied acquittal is final and bars a subsequent prosecution for the same offense. Putting a defendant in jeopardy a second time is not necessarily harmless error or moot, even if the defendant is only convicted of the lesser crime, because the Double Jeopardy Clause is cast in terms of the risk or hazard of trial and conviction, not of the ultimate legal consequences of the verdict.”
This begs the question of whether or not the jury was genuinely deadlocked on the conspiracy charges? It also asks, “Did Judge Navarro know about the verdict before she ruled on the mistrial?”
If the jury was unanimous, then the acquittals should be entered into the record. However, Judge Navarro ruled a mistrial, therefore declaring the jury to be NOT unanimous on the conspiracy charges.
They were clearly unanimous at one point, so when did they become Not Unanimous? Before or after the Allen Charge?
Navarro accepted the guilty verdicts, yet did not accept the not guilty verdicts. It does seem plausible that she could have known the jury had reached consensus on the two main charges but they were confused, based on her instructions, as to the remainder of the charges. They clearly intended to find guilt on the 2 charges against Todd Engel and the 8 charges against Greg Burleson.
If Judge Navarro knew that the jury had reached an agreement on the 2 main conspiracy charges, yet did not accept them, could there be an argument to her manipulating the verdicts?
Additionally, there is the question that, if Judge Navarro knew of the not guilty agreement before she issued the Allen Charge, did she use that instruction as a tool to coerce the jury to change their verdict?
Therefore, the ultimate question is: “What did Judge Navarro know, and when did she know it?”
We thank Deb Jordan for releasing the documents to the public.