What Evidence Is Pertinent in Bundy Trials?

Pardon us plebs, but we are a tad bit confused about just what is admissible evidence in the Bunkerville standoff trials.

This past week, about a month into the second of three scheduled trials, the judge declared a mistrial because the prosecution had failed to timely turn over potentially exculpatory evidence to the defense.

Federal Judge Gloria Navarro listed six instances in which prosecutors willfully withheld evidence — including information about an FBI surveillance camera, documents citing the presence of snipers, certain maps, FBI logs, threat assessments that showed the Bundys weren’t violent and internal affairs documents detailing possible misdeeds by the Bureau of Land Management agent in charge, who was later fired.

The judge ruled the material might have been useful in shaping a defense for the protesters who showed up at Cliven Bundy’s ranch in April 2014 when BLM agents attempted to impound 500 head of his cattle for failing to pay $1 million in grazing fees and fines for two decades.

According to press accounts, Judge Navarro noted FBI log entries said “snipers were inserted” outside the Bundy home, though prosecutors previously denied any snipers were posted and now say they were unaware of the FBI log showing otherwise. Ignorance is no accuse, the judge chided.

Curious. In an earlier trial, Judge Navarro kicked defendant Erik Parker off the witness stand for trying to mention where a BLM sniper was positioned. He was not allowed to continue his defense.

During that trial the judge had granted a sweeping prosecution motion to bar arguments about the defendants’ “state of mind,” such as whether they were provoked by the government’s massive show of force.

She ruled that defense could not mention nor show video or audio depicting the arrest of Cliven’s son Dave Bundy in which he was wrestled to the ground; nor any recordings showing the tasering of son Ammon Bundy or a BLM agent grabbing Cliven’s sister Margaret Houston from behind and throwing her to the ground; nor any testimony or opinion about the level of force displayed by law enforcement; nor references to Bundy’s grazing, water, or legacy rights on the public lands; no references to infringements on First and Second Amendment rights; and no mention of the punishment the defendants faced if convicted.

It appears some of the very things not allowed in evidence at an earlier trial are now grounds for a mistrial because the defense was not provided documentation.

To add further to the contortions and machinations of this case, just days before the judge declared a mistrial the prosecution filed a motion similar to the one granted in the prior trial. It asked the judge to not allow the introduction of “evidence or argument at trial that relate to instigation/provocation, self-defense/defense of others, entrapment, justification for violent self-help, impermissible state of mind justification, and collateral attacks on the court orders.” The motion said presenting any of this to the jury would amount to jury nullification.

In this trial Cliven Bundy and sons Ryan and Ammon, as well as self-styled militia member Ryan Payne, face charges that include obstruction of justice, conspiracy, extortion, assault and impeding federal officers.

Faced with armed protesters during the cattle impoundment, agents released the cattle rather than risk a shootout.

“The law does not permit the defendants to expand the legally cognizable defense of self-defense against a law enforcement officer by incorporating instigation and provocation,” the latest motion states. “To do so would eviscerate the well-recognized elements of self-defense. Defendants, rather, seek to introduce evidence of instigation and provocation to obtain jury nullification. Jury nullification is illegal.”

Rather than slap a lien on the Bundy ranch and cattle or freeze the ranch’s bank accounts, the BLM instead chose to send in an armed force to oversee the rounding up of Bundy’s cattle by contracted cowboys. The operation has been estimated to have cost $3 million. Once the cattle were corralled and off the grazing range, there was no hay to feed them and reportedly no one willing to take the cattle.

Additionally, withheld documents reportedly included statements that no threatened desert tortoises were ever found to be harmed by Bundy’s cattle, the reason the BLM tried to limit his grazing in the first place.

A hearing in the case is set for January. Unless the judge decides to dismiss the charges, a retrial is slated for late February. What evidence would be allowed?

Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at thomasmnv@yahoo.com. He also blogs at http://4thst8.wordpress.com/.