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Is It Evident That The Judge Has Too Much Discretion?

In the case of Navarro, who owes a debt of gratitude to Harry Reid, how can we be sure that she is not abusing her discretion to further Reid’s interests?

Is It Evident That The Judge Has Too Much Discretion?


Is It Evident That The Judge Has Too Much Discretion?

“Therefore, the jury have the power of deciding an issue upon a general verdict. And, if they have, is it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience? … [I]s a juror to give his verdict generally, according to [the judge’s] direction, or even to find the fact specially, and submit the law to the court? Every man, of any feeling or conscience, will answer, no. It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”  JOHN ADAMS

by Loren Edward Pearce

Recently, the federal prosecutors, key members of the federal team (judge, prosecutors, enforcers), filed motions to suppress and quash most of the defense arguments in the federal case against the Bundy et al defendants.

Government’s Motion In Limine To Preclude…

Of course, the federal team gets a third bite of the apple, another chance to get it right, in what they failed to do in the first 2 trials against protesters in the 2014 Bunkerville event in which Bundy cattle and water infrastructure were destroyed or harmed by the BLM agents.

From lessons learned in the first two trials that ended in hung juries (with a strong vote for acquittal by the majority of jurors), the federal team has anticipated what the defense arguments will be and what evidence they will attempt to admit.  The recently filed motions are intended to nip it in the bud, to shorten the trial in favor of the government, basically leaving the defense, well, defenseless.


In this writer’s opinion, the key language used in the prosecutor’s filing was that the judge had the discretion to decide what evidence is relevant and admissible.

Over the last one hundred years, legal scholars, have pushed for “reform” to the legal matter of how to handle evidence in a trial, by giving more authority to the person presiding at the trial, the judge, to rule on evidence.

One Hundred Years of Evidence Law Reform

When we hear the word “reform” we should grab the Bill of Rights and run for cover.  When the so called legal experts want to reform something, it usually means that they want to reform, or change, what our founders and framers originally gave us.

We saw what happened to the right to a presumption of innocence when congress, at the urging of the legal experts, gave us the Bail Reform Act.  Prior to reforming the right to bail, it was a constitutional right to be granted bail unless there was a capital offense and even when accused of something like murder, there needed to be compelling probable cause that the accused may have actually committed the murder.  But, anything that was not a capital offense, meant a presumption of innocence and the right to bail.

Prior to reforming bail law, judges did not have the discretion to deny bail:

“But in the United States the accused has a constitutional right to bail in all ‘except in capital cases.’ . . . Under the [B]ill of [R]ights, bail before conviction is a matter of right (and not of discretion) for all offenses, except those that are capital . . . .”) Street v. State, 43 Miss. 1 (1870)

Had the right to bail not been “reformed” and greater discretion given to one human being, a judge, the Bundys and other political prisoners would not have spent over 600 days in pretrial prison, without ever having been tried by a jury of peers.


The legal scholars, who claim to know better than the founders, have argued that the judge needs to have more discretion to make decisions about the admissibility of evidence.  But, the more discretion given to that one human being, a judge, means less power, authority and discretion for the jury and to the appellate court.

Without going into all the history and reasons for juries, suffice it to say that the founders of the American republic, had been badly burned by the concept of one person, or a few people, having a lot of power at the expense of the individual or the masses of individuals who did not occupy positions of political power.

The founders described in the Declaration of Independence all the injustices that were heaped on the people by the King and his elite group of supporters because the power had been concentrated in one person.  The founders knew the mischief that could result from one person having “broad discretion” to make decisions that affected their welfare, property and their pursuit of happiness.

Juries were an integral part of removing the power of a few elite, the oligarchy, and spreading it to a group of peers.  However, judges and the professional legal class did not see the average person, the peer, as having the intelligence, sophistication, knowledge or aptitude for making correct decisions.  Consequently, strong currents have moved in opposition to what the founders gave us.  The professional legal class wants to remove power and authority from juries, and give it back to one person, a federal judge.

One of the reformers, Thayer, a strong proponent of shifting the power away from juries and giving more say so, discretion, to the judge, had this to say about juries:

“I think that it would be juster and more exact to say that our law of evidence is a piece of illogical, but by no means irrational, patchwork; not at all to be admired, nor easily to be found intelligible, except as a product of the jury system,… where ordinary, untrained citizens are acting as judges of fact.” THAYER, PRELIMINARY TREATISE

In the two previous bites of the apple, the earlier trials, those who attended those trials, witnessed first hand the consequences of these “reforms” as Judge Gloria Navarro used her discretion to deny, dozens of times, the defense’s attempts to introduce evidence and testimony favorable to the defense and denied the jury the right to sift and sort through the evidence as they saw fit.  Often, Navarro would treat the jurors as if they were children, concerned that they would be confused by defense evidence or decide for the jury that something was not “helpful”.


Three reformers, Thayer, Wigmore and Morgan, gave us the Federal Rules of Evidence which were supposed to “guide” the judge in how to handle evidence.  The problem is, the rules of evidence are still vague and ambiguous enough to allow the judge to use her discretion. The appellate courts generally uphold the judge’s discretion, even if it appears to violate the rules of evidence.

“Reversal is justified not when the appellate court disagrees with an outcome, but only when the trial court “abuses” its discretion. Such abuse can occur if the court did not apply the requisite guidelines to its decision making, did not give these guidelines their received meaning, or reached a result plainly against the logic and effect of the facts of the case.”  California Law Review pg 41

The above scholarly article goes on to say it is very difficult for the appellate court to substitute its judgment for that of the lower court judge and determine if the lower court “abused” its discretion.  Therefore, it rarely does so.

This, then, explains the seeming arrogance of Navarro and her prosecutors, given that reformers worked so hard to give the lower court judges near absolute discretion in deciding what evidence is relevant and what evidence can be admitted.


Although all the reformers wanted to give more discretion to the judge, Wigmore was the most outspoken about that discretion must be very controlled and limited and he wrote scathing rebuttals to the Thayer and Morgan supporters who wanted near absolute power given to the judge.  Wigmore wrote:

“…it is recalled that there are upwards of 5000 court-of-record trial judges, and that perhaps 20% of them come newly to the Bench every 6 years or so, is it not probable that in those proposed large areas of “discretion” the Law of Evidence will suffer, not a re-form, but a relapse into that primal condition of chaos, described in Genesis 1:2, when the Earth “was without form and void”?”

From the treatise on the Model Code

Wigmore’s fear is manifested in Navarro, who, unlike most appointees to Federal Chief Justice positions, did not come with vast amounts of experience as a judge.  She came with no experience as a judge.  She has been learning the rules as she plays the game, and her tutors have been the federal prosecutors, among others.  However, experience is no guarantee that the judge will be righteous and fair.  Vast experience can lead to vast abuses.


Thayer and Morgan won the battle to get the most discretion for judges and their win is reflected in today’s Federal Rules of Evidence.  The Supreme Court weighed in by supporting this increased discretion, at the expense of safeguards in Jury and appellate court discretion:

“We are confident that federal judges possess the capacity to undertake this review. Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test.’”   509 U.S. 579 (1993).

Like Thayer, the Supreme Court gave a vote of confidence to judges to have “broad discretion” without any evidence that they can be trusted with such discretion and not use their discretion to promote the agendas of other federal team members.  In the case of Navarro, who owes a debt of gratitude to Harry Reid, how can we be sure that she is not abusing her discretion to further Reid’s interests?


Like individual judges, juries and the jury process are not perfect.  There are many examples of juries coming up with ridiculous verdicts, outrageous jury awards and other examples of bad decision making.

However, the founders knew that the greater evil is in entrusting the weighty decisions that will forever affect the lives of the defendants in the hands of one person, a judge, who may be tempted to use such vast powers for corrupt purposes.  In federal courts, these weighty decisions are made more dangerous due to the extremely severe penalties that are attached to federal laws, penalties far more severe than what states impose for similar crimes.

A jury, as imperfect as it may be, has built in checks and balances as the 12 jurors must challenge and question each other on their analysis of the evidence.  Therefore, the role of the judge should be to make the job of the jury to consider all the facts as easy as possible.

The job of the judge is to give the benefit of the doubt of competence to the jury and not  worry about confusing them or misleading them.   As John Adams said in the opening quote:

“It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court”.


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2 Comments on Is It Evident That The Judge Has Too Much Discretion?

  1. “When we hear the word “reform” we should grab the Bill of Rights and run for cover. When the so called legal experts want to reform something, it usually means that they want to reform, or change, what our founders and framers originally gave us.”

    What does the Bill of rights do? Seriously, do you know? Here is the Preamble to the Bill of Rights;

    Preamble to the Bill of Rights: Congress OF THE United States begun and held at the City of New York, on Wednesday the Fourth of March, one thousand seven hundred and eighty nine.
    THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”

    What this says is that the Bill of Rights is a partial list of things that those who SERVE WITHIN our governments are NOT allowed to mess with in any way; some things they are ALLOWED to mess with, but ONLY if they do it if the described circumstance(s) are involved, and then they must enforce exactly as written. The Ninth Amendment was written to make sure that all who served within government, and all of the American people who would bother to read the US Constitution would know that all of those powers that the people have when there is no government was retained (kept) by the people EXCEPT those things specifically listed within the Constitutions – state and federal – as having been delegated to them. This is in writing so one can ALWAYS know exactly what authority both those that serve within state governments and those that serve within federal governments are ALLOWED to use while occupying that position/office and only as long as they keep the supreme contract they are under.

    These are the jurisdiction of those that serve within the federal government;
    — Military defense, international commerce & relations;
    — Control immigration & naturalization of new citizens;
    — Domestically, to create a uniform commercial system: weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
    — With some of the amendments, secure certain civil rights.

    – As stated in the 10th Amendment, all others powers are reserved by the States OR To THE PEOPLE….

    What about law enforcement duties, which are under the federal government to perform? The U.S. Constitution, the supreme law of this land, haas it in writing that the only crimes assigned to the federal government for law enforcement purposes are Treason, Piracy, Counterfeiting, and International law violations.

    What about duties of the federal judges? That is found in the US Constitution, Article 3, Section 2: “The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;
    –to all cases affecting ambassadors, other public ministers and consuls;
    –to all cases of admiralty and maritime jurisdiction;
    –to controversies to which the United States shall be a party;
    –to controversies between two or more states;
    –between a state and citizens of another state;
    –between citizens of different states;
    –between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

    In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

    The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.”

    It has already been pointed out that the federal government has “limitations and forbiddens” placed upon its being able to own land, and that the place claimed by those that serve within the federal government does NOT meet the qualifications needed in order to be LAWFULLY owned by the federal government. It was LAWFULLY state land. Those that own, rent, lease, etc land do NOT have the federal government to “manage their land” if they do not want them to.

    So now we need to find out if a federal judge has any LAWFUL jurisdiction over this “case”. It does NOT involve “… affecting ambassadors, other public ministers and consuls;”, nor “admiralty and maritime jurisdiction;”. This was not a case in which “to which the United States shall be a party” because the US Constitution, the supreme contract that they are REQUIRED to follow in order to meet the requirements of the position they occupy, says it does NOT because they are NOT allowed to own land in that manner, or create a building, etc – this IS in writing. This was not a controversy “between two or more states”. So are they saying that this is a controversy “between a state and citizens of another state” so that is where the feds believe that they get their jurisdiction?

    Because that is the only one that MIGHT give them jurisdiction, but it does NOT give them the authority to have been involved in anyway in the arrests, in the charging of crimes because we still need to charge them for the crimes those serving within our federal government committed against the supreme LAW of our land, and for breaking their Oaths – felony and Perjury, and lots of others in the facts presented in this case, and the false and unlawful claims to property, authority within a state, plus First Degree MURDER.

    I am not sure if Judge Navarro would be considered an accessory after the fact for trying to cover up for those who are federal agents.etc in this trial. To keep their crimes from being brought to light – but feel it is a distinct possibility because she also took an Oath to the US Constitution that makes HER, along with all Oath takers, personally responsible for her actions while serving. She is REQUIRED to refuse to not follow the supreme contract from which she gets her authority. But that is for the trial of all these federal employees at all levels involved in this case to be decided when “we the people of the United States” do bring the charges against them.

    WE should do it soon, bring charges against them. It will help to start bringing the US Constitution, the supreme CONTRACT for all who serve within our government back to the forefront. Is that not where we want it?

  2. Thank you Loren, for giving us this grounding in how far the Federal courts have strayed. As Seen by us blue collars, Navarro appears to be on a madcap crusade, and her conduct of the case is indeed “Without form and void”. Even for us sidewalk lawyers, the trial appears shot through with open and shut appeal causes. Didn’t John Adams warn against those “Sappers and miners in black robes”? I do have to say that we are entering the fifth bite, not the third, as the two Malhure trials are inextricably linked to Vegas. Looking back, our trial in Judge Brown’s courtroom was a freewheeling affair, with a defense witness who at the same time had a petition to impeach the judge….An FBI informant who testified for the defense…..and a witness for the prosecution – Butch Eaton – nearly in tears in his praise for the accused. After the lessons of Portland, Navarro and her gang will have none of this. With all due respect to the others who are being persecuted in this Bundy et al case, this upcoming trial is the Main Event. People across the country have had plenty of time to mull over being there or not, and plenty of time to plan. You can’t make history sitting down folks, you have to stand up. Stand now with the Bundys.

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