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The Prosecution’s Unjust Use Of Res Judicata

The primary purpose of res judicata is “judicial economy” meaning that the courts should not be bogged down with the time and expense of matters that have already been decided.

Res Judicata

The Prosecution’s Unjust Use Of Res Judicata

by Loren Edward Pearce

In his motion to deny the Bundy et al defendants their right to raise the subject of water rights, fencing laws and other matters that the prosecution considers irrelevant, Myhre stated, “A party is not entitled to collaterally attack the merits of a final order for relief. The doctrine of res judicata precludes a party from re-litigating issues that were or could have been raised in the original action.”

Renewed Motion to Exclude
Irrelevant Evidence

Res judicata is Latin for, “a matter already adjudged”. It comes from the legal doctrine that once something has been fully adjudged on the merits then the judgment is final and is not open to attack in a later judgment or hearing.

The primary purpose of res judicata is “judicial economy” meaning that the courts should not be bogged down with the time and expense of matters that have already been decided. Additionally, res judicata is meant to protect a party, who may have prevailed in a controversy, from having to go through the inconvenience and expense of litigating the same matters again. For the winner of a controversy, res judicata is closely related to double jeopardy, in preventing the pain, injury, trouble, expense and inconvenience of trying the same matter over again.

Res Judicata and the 7th Amendment

Res judicata is not mentioned in the constitution but, in the Seventh Amendment, a similar doctrine is stated,

“…no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

There are several ways a res judicata claim may not apply:

  1. Was the matter really litigated on the merits? Was the matter of water rights, etc. actually adjudged by the courts and is it exactly the same matter or has it been presented under a different theory?
  2. Did the party objecting to res judicata truly get due process or were there material errors or fraud preventing and obstructing due process and that lead to wrongful final judgment?
  3. Jurisdiction of the court can be attacked at any time. Did the court have jurisdiction? A fundamental challenge by the Bundys et al is the matter of the constitutional authority of administrative law judges versus Article 3 courts as provided for by the constitution. The Bundys allege that the BLM and other big federal bureaucracies do not have constitutional authority to create their own courts with administrative law judges who issue decisions that are latter enforced by their own self-serving law enforcers, such as what we saw at Bunkerville. Were some of the orders that the prosecution refers to issued under Article 3 authority or were they issued under administrative courts who have no constitutional authority?

The Use and Abuse of Res Judicata by the Prosecution

On one hand, the prosecution invokes res judicata as a way to avoid litigating something that allegedly has already been dealt with in a previous trial under the pretext of judicial economy. On the other hand, the prosecution seeks to defy judicial economy by “re-trying” the same issues that were brought up in earlier trials that were declared mistrials because of hung juries.

In the previous trials, the majority of the jurors voted for acquittal and while the decisions were not unanimous, common sense would indicate to the prosecution and to all the world that these re-trials are violating the spirit of the law, if not the letter of the law, by violating the Seventh Amendment wherein,

no fact tried by a jury, shall be otherwise re-examined in any Court of the United States”

Nobody knows for sure how many millions of dollars are being spent by the prosecution in aggressively going after the defendants in multiple retrials. Rumors have it that over $100,000,000 has been spent in retrying the defendants. Without question, judicial economy is not being served by the vindictive prosecution.

If the prosecutors want to apply res judicata to water rights, then they need to apply res judicata to all the matters already tried before a jury and stop putting the defendants and their families through hell and only using judicial economy when convenient to the government.

Res judicata, like double jeopardy, are doctrines that can promote the ends of justice, when wielded in the hands of just people. But, when wielded by prosecutors who seek a “whatever it takes” position without regard to the pretrial prison suffering of the defendants and the destruction of the right to a “speedy” trial, then res judicata can be used to deny the jury the right to “have the truth, the whole truth and nothing but the truth” in making a just decision about the guilt of the defendants.


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4 Comments on The Prosecution’s Unjust Use Of Res Judicata

  1. Mistrials are “void judgments”, where re judicata cannot apply.
    In civil law, Cliven’s existing water right permits were summarily dismissed decades ago, & are thus FRCP 60(b)(4) ‘void orders or judgments’, with no statute of limitations for relief.
    Decades ago, US Attorney Blaine Welsh tried the same res judicata trick on me, to dismiss enforcement of my 80 acre Title, without ever examining my existing Title, but my Title still exist.
    Void judgments or orders can be used as toilet paper, until a trial on the merits of the property rights is finally decided & decreed.

  2. Thank you Loren: Their reaching for an arcane doctrine like Res Judicata – one that most of us have never heard of – is an act of desperation by Myhre and Co. With a case devoid of substance or merit, they are staring into a yawning chasm, a defeat in the trial of the century. They are grasping at straws. It’ll be up to Navarro, but she has already drawn the line on one of Myhre’s outlandish claims, his “No video record” bit about the survellance cameras.

    • As always, thanks Neil for your incisive and profound analysis. Your credibility is butressed by the fact that you were there, you practice what you preach and you know what you are talking about.

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