The Las Vegas Review-Journal, this newspaper and The Associated Press are continuing to push for public access to evidence in the federal case against Bunkerville rancher Cliven Bundy, four of his sons and 14 others.
This past week attorney Maggie McLetchie, who represents the press as intervenors, filed another motion seeking to overturn an overly broad protective order that places everything being provided by government prosecutors in the discovery process to defense attorneys under a veil of secrecy. The reason given for the secrecy is some vague fear of intimidation. The government cites some threatening Internet posting, without any measure of confidence that the threat is anything more than some crackpot bloviating, but with no intention or capability to carry out a threat.
The 19 defendants are jailed without bail on charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers growing out of the armed standoff in April 2014 between Bundy supporters and Bureau of Land Management agents attempting to roundup cattle Bundy had been grazing on public land for 20 years without benefit of a permit or the accompanying grazing fees. Fees and interest and penalties were said to top $1 million. Most of those defendants also oppose the protective order.
The Constitution guarantees a right to a public trial and the right to confront witnesses, and that includes during the procedures leading up to the trial, which is scheduled for nearly a year from now.
One of the more specious claims supporting sweeping secrecy is the fact Jerad and Amanda Miller, who later ambushed and killed two Las Vegas police officers and a civilian, were present at the standoff. No mention is made of the fact the Millers were told to leave the ranch because they were lunatic radical leftists involved in the Occupy Movement.
Prosecutors seeking the blanket secrecy wrote, “The Government has a reasonable fear that the defendants, or other supporters will further disseminate this information into the public domain for the purpose of harassing and intimidating these third parties, including victims and witnesses.”
McLetchie points out in her motion, “Intervenors are concerned about the First Amendment implications of the government’s proposed protective order … Intervenors have reported and will continue to provide members of the public with information about this case, which is a small part of a larger national dialogue about the ongoing competition for natural resources between ranchers, environmental groups, and the federal government. Given these concerns, as well as the controlling case law, it is imperative that the Court consider the First Amendment implications of the government’s proposed protective order in determining whether the government has established good cause.”
The attorney adds that Cliven Bundy himself has said, “(W)e want the press to shine the light of truth on this case so that the government cannot hide its misdeeds by burying those deeds …” — clearly a First Amendment concern.
“This case in part involves the fine line the government must walk when criminalizing speech — especially when the speech at issue is critical of the very government that is prosecuting the case,” the motion states. “The public has a right to evaluate the nature of the government’s case for itself. The need for transparency is especially important in light of the fact that this case involves government critics.”
Under the prosecution’s free-wheeling presumptions, every case would necessarily have to be conducted in secrecy because someone somewhere for some unknown reason might try to do something that might intimidate someone somewhere.
McLetchie cites case law that clearly requires something a little more specific than such vagaries. “Good cause is established on a showing that disclosure will work a clearly defined and serious injury to the party seeking closure. The injury must be shown with specificity. Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning, do not support a good cause showing,” she quotes.
The very purpose of providing discovery to defense attorneys is so they might be able to form a proper rebuttal to charges, which requires them to be able to talk to people about the evidence and witness statements and perhaps seek input from the public via the press.
If there are specific examples of real endangerment, prosecutors can redact that specifically and not keep everything under seal. — TM