Bundy Trial Landmark Day – January Eighth
Judge Navarro is scheduled to rule on which classification of mistrial is appropriate for Cliven, Ryan and Ammon Bundy, and their co-defendant, Ryan Payne. The classification she decides on will make a huge difference and could bring anything from a retrial, or the end of this case. Her decision could also affect the other 15 defendants indicted in USA v Cliven Bundy et al.
Judge Navarro indicated that the remedy for the Brady violations she was seeking was only for the evidence that was in violation for missing the October 1st, 2017 deadline, which would indicate only the four defendants in this trial. On December 20th, when Navarro declared a mistrial, she mentioned two options. A mistrial without prejudice would allow the prosecution to retry the current four defendants; or a mistrial with prejudice would bar a retrial. The status of all other defendants in Cliven Bundy et al would remain as they were unless they individually appealed to a higher court. The lawyers representing the four defendants, and the prosecution filed their briefs, as instructed, on December 29th.
Myhre wrote in his brief;
…“The Brady violations found by the court are regrettable and benefit no one,”…. “But because the government neither flagrantly violated nor recklessly disregarded its obligations, the appropriate remedy for such violations is a new trial.”
Ryan Bundy’s brief, referred to the “Federal Rules of Criminal Procedure, Rule 26.3 Mistrial” that states;
“Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives”… “The Rule ensures that a defendant has the opportunity to dissuade a judge from declaring a mistrial in a case where granting one would not be an abuse of discretion”.
Judge Navarro not only failed to give the defendants this opportunity, but when Ryan Bundy requested to comment, she refused to allow it. Because of Navarro not following this procedure, the mistrial should be with prejudice.
There is a third option that Navarro failed to mention but the defense lawyers have strenuously brought to her attention in the briefs they filed on December 29th. They are in favor of a “dismissal of the indictment, with prejudice”. The grand jury Indictment, the formal accusation that a person has committed a crime, would then be dismissed. This type of dismissal was the choice in the USA v Chapman case, also headed by Steven Myhre as prosecutor, dismissed with prejudice on May 06, 2008. A dismissal of the indictments would bolster the legal status of the other 15 defendants in all tier groups of the trials.
As the Chapman case was concluded, two new Assistant United States Attorneys appeared on behalf of the government to argue against dismissal. The district court listened to the arguments and then granted the defendants’ motion to dismiss an indictment with prejudice. Myhre had acted “flagrantly, willfully, and in bad faith”.
Such a severe finding regarding Myhre’s misconduct as the lead prosecutor did not stop him from becoming the Acting United States Attorney for the Southern District of Nevada. On the federal level, the Office of Professional Responsibility and the Inspector Generals Office were in the chain of command for disciplinary actions, but those institutions failed to protect the public from Myhre’s unethical prosecutions. The Nevada Bar Association was responsible for disciplinary actions at the state level.
When a prosecutor violates the defendants constitutional rights, the court is supposed to pay for their wrongdoing by giving the defendants an advantage. In USA v Cliven Bundy et al, the defendants seemed to be well on their way to an acquittal. It is clearly to their disadvantage to start over with a new jury. The prosecution would have the advantage of a fresh start with a new jury that might not see the same struggle the defense team had to make to overcome the Brady violations that blocked crucial evidence. The government witnesses that have already impeached themselves have learned not to get caught in some of their own lies. Giving the prosecution another chance to correct their mistakes would put the defense at a disadvantage and therefore ‘dismissal without prejudice’ should not even be considered.
A district court may dismiss an indictment on the ground of outrageous government conduct if the conduct amounts to a due process violation. If the conduct does not rise to the level of a due process violation, the court may nonetheless dismiss under its supervisory powers. Judge Navarro had found the Brady violations in the Bundy trial were to the level of due process violations.
The nineteen men arrested for the Bundy Ranch Protest were indicted together by the same grand jury. The trial was later broken up into three tiers, each having their own trial for the courts convenience. That arbitrary division should not block any group or groups from the benefits of a dismissal of the indictment. In the best case scenario of dismissing the indictment with prejudice, Judge Navarro’s decision could help in termination of past plea bargains, convictions and both Tier 1 and Tier 2 group trials.
There is also evidence of worse prosecutorial misconduct that is not a part of the court record. Judge Navarro has not discussed this evidence, in the form of the ‘Wooton email’ publicly. This is the 17 page email plus a cover page written by BLM’s lead investigator of the Bundy case. Wooten held this position for nearly three years until he was removed on February 18th, 2017. Myhre requested Wooten’s removal from the Bundy investigation to Wooten’s BLM supervisor just the day or days before. Special Agent Larry Wooten’s summary of the email subject reads: “Bureau of Land Management Law Enforcement Supervisory Misconduct and Associated Cover-ups as well as Potential Unethical Actions, Malfeasance and Misfeasance by United States Attorney’s Office Prosecutors from the District of Nevada, (Las Vegas) in Referencer to the Cliven Bundy Investigation.”
There have been several sealed hearings in Judge Navarro’s courtroom since Larry Wooten’s email was made public by Washington State Representative Matt Shea and Shari Dovale of Redoubt News. Also, the “Motion to Dismiss” written by Public Defenders Brenda Weksler and Ryan Norwood in behalf of defendant Ryan Payne stated: “While violations already found by this court are already enough to justify dismissal, there remain other issues that have yet to be explored—notably those arising from (half a line of text redacted) provided to the defense on December 8, 2017.
The “Motion to Dismiss” continues; “The information therein provides further evidence of flagrant government misconduct, and a pervasive, willful failure to provide the defense exculpatory evidence. The Court should direct an extensive inquiry into the matter if it does not dismiss the indictment.” They later stated; “THE INDICTMENT SHOULD BE DISMISSED WITH PREJUDICE”. The attorneys give several court case examples that prove that the misconduct of the prosecution of the Cliven Bundy case fulfills the requirements to dismiss the indictment with prejudice, and then it continues with the statement; “The facts relied upon by the Chapman court to dismiss the case with prejudice pale in comparison to this case.”
Mixed in with heavily redacted pages is the following information; “The court should also hear evidence from the other parties directly involved with his dismissal, (redacted text), and Acting U.S. Attorney, Myhre,”…“A fair inquiry into circumstances (redacted text) will make the US Attorney a necessary witness, and will require their recusal from the case.” The heavily redacted text in this December 29th brief can be taken as a warning that there are still far too many governmental secrets involving this case.
The prosecution used false statements and hid evidence to make false charges against nineteen men indicted by the grand jury, the only remedy to preserve justice is to go back to the root of the deceit and dismiss the indictment, with prejudice.
U.S. Attorney General Jeff Sessions announced Wednesday, January 3rd, 2018, that Dayle Elieson will replace Acting U.S. Attorney Steven Myhre effective Friday, January 5th, 2018. Myhre will return to his role as First Assistant U.S. Attorney. Elieson was one of 17 interim U.S. attorneys appointed by Sessions in districts throughout the United States.
January 8th, 2018 will be a historic day, not only for the trial of USA v Cliven Bundy et al, but for many legal proceedings to come. Judge Gloria Navarro will decide between liberty and tyranny.
The Judicial Doctrine of Immunity states that “Immunity applies even when the judge is accused of acting maliciously and corruptly”…”Judicial immunity is not overcome by allegations of bad faith or malice,” the Supreme Court said in its opinion in Mireles v. Waco. The opinion went on to explain; “… judges lose their immunity only in two circumstances: when they are sued for a ‘nonjudicial action,’ like a personnel decision, or when they are sued for an action that, ‘though judicial in nature,’ was ‘taken in the complete absence of all jurisdiction.’”
However, the Supreme Court does not have the authority to block impeachment of a judge through the U. S. House of Representatives, an avenue that Washington D.C. attorney Larry Klayman may be taking with the complaint he has filed.
The climax to the USA v Cliven Bundy et al trial will be at the Lloyd George Federal District Courthouse, 333 S Las Vegas Blvd., Las Vegas, Nevada, 9:00 am on January 8th, 2018.
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