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LAS VEGAS —
A federal judge declared a mistrial Wednesday in the case against Nevada rancher Cliven Bundy, saying U.S. prosecutors willfully withheld critical and “potentially exculpatory” evidence from the defense.
Judge Gloria Navarro dismissed jurors and ended the trial against Bundy, his sons Ammon and Ryan Bundy, and militia member Ryan Payne, who are accused of leading an armed standoff with federal land agents in 2014.
Her ruling came more than a month into the trial, which has suffered multiple delays over the handling of evidence by the Nevada U.S. Attorney’s Office.
Navarro cited five key pieces of evidence that prosecutors failed to disclose. That evidence, Navarro said, was favorable to the defense and could have changed the outcome of the trial.
Records about surveillance at the Bundy ranch;
Records about the presence of government snipers;
FBI logs about activity at the ranch in the days leading up to standoff;
Law-enforcement assessments dating to 2012 that found the Bundys posed no threat;
And internal affairs reports about misconduct by Bureau of Land Management agents.
“Failure to turn over such evidence violates due process,” Navarro said. “A fair trial at this point is impossible.”
Acting Nevada U.S. Attorney Steven Myhre, who led the prosecution, did not make any comment after Navarro’s ruling, and his office did not respond to interview requests Wednesday.
The judge’s rebuke is the latest in a chain of failures by federal prosecutors, who have been unable to secure clear victories against the Bundys and their supporters during three trials in Nevada and another in Oregon.
The Bundy Ranch standoff is one of the most high-profile land-use cases in modern Western history. It pitted cattle ranchers, anti-government protesters and militia members against the BLM over control of vast tracts of public land.
Ammon and Ryan Bundy, who were conditionally released from prison last month, called the outcome “vindication.” Walking out of the courthouse Wednesday, Ammon Bundy said the case stands as an example of government overreach and abuse — and shows how far the government will go to protect its own interests.
“This was a hard decision for Judge Navarro, and I applaud her for making it,” he said. “All I can say is I hope by going through this, I hope I have done enough to bring attention to this issue.”
Withheld evidence at issue
Navarro suspended the trial two weeks ago and warned of a potential mistrial after prosecutors for the first time disclosed several documents that appeared to supportdefense claims about the government’s use of video surveillance and sniper teams during the standoff.
Defense lawyers filed motions to dismiss the case, arguing the new documents provided critical evidence that would have allowed them to challenge the government’s charges, impeach government witnesses and lay the foundation for self-defense claims.
Ammon Bundy is greeted by family and friends at the U.S. District Courthouse in Las Vegas after being released from federal custody on Nov. 30, 2017. A mistrial was declared in the case Dec. 20, 2017. (Photo: Ken Ritter/Associated Press)
Federal prosecutors sat in silence Wednesday as Navarro spent about 45 minutes methodically laying out her reasoning for the mistrial. She cited legal standards and case law on the so-called “Brady rule,” which requires prosecutors turn over evidence prior to trial that could be used to exonerate defendants.
She said it didn’t matter if the failure to disclose was intentional or inadvertent. But Navarro detailed several instances where prosecutors denied evidence existed and used hyperbole to mock defense requests for information.
For instance, she said, prosecutors derided defense requests for a BLM internal affairs report into misconduct as a “bright shiny object … that did not exist.”
But documents later showed an internal investigation had taken place, and had found misconduct.
“Failure to turn over such evidence violates due process. A fair trial at this point is impossible.”
Judge Gloria Navarro
Likewise, Navarro pointed out that during two previous trials of militia members who supported Bundy, prosecutors insisted there was no evidence that video surveillance and sniper teams were in use around the Bundy Ranch prior to the the standoff.
Prosecutors charged defendants with making false claims about snipers and videos to incite their supporters in the runup to the standoff. But documents that surfaced after the start of trial last month showed there were tactical teams and multiple video cameras positioned around the ranch.
She said assessments written by federal agents that dismissed the Bundys as a threat as early 2012 were not turned over to the defense. Navarro said these reports could have been used to challenge prosecution claims.
One undated BLM report described the Bundys as non-violent, Navarro said, quoting: “They might get into your face, but they won’t get into a shootout.”
Navarro said since the Oct. 1 discovery deadline, when prosecutors were required to turn over all material evidence to the defense, the prosecutors turned over 3,300 pages of additional documents. She said much of that has occurred since the start of trial.
Navarro walked through other potential remedies — allowing the defense to recall and challenge witnesses, delaying trial — and rejected them as impractical.
“I will try to put it as simply as possible: The defense has a right to information,” Navarro said, adding, “I believe it is very useful and very material.”
Will there be a retrial?
Navarro stopped short of dismissing charges against the four men.
Any retrial will depend on Navarro’s ruling during a Jan. 8 hearing, in which she will decide whether to end the mistrial with or without prejudice.
If there is a retrial, it could begin as early as Feb. 26.
Las Vegas defense lawyer Dan Hill, who represents Ammon Bundy, said if Navarro rules without prejudice, then the government could refile charges and retry the men. If she rules to end the mistrial with prejudice, then a double-jeopardy standard would apply.
Double jeopardy refers to a basic legal tenet that a person cannot be tried twice for the same crime.
“If she decides with prejudice … it’s over,” he said.
Hill said he was not surprised by Navarro’s ruling. He said the judge made it clear during hearings that were closed to the public last week there had been Brady violations, “and the trial cannot proceed with Brady violations.”
Hill said there were clear constitutional violations by the government against the Bundys and Payne that will factor strongly in the decision on prejudice.
Bundy Ranch standoff trials
“This is one of the few cases where the entire defense team is in agreement they (the defendants) didn’t do anything they were charged with.”
Navarro’s ruling for a mistrial was limited to defense motions filed two weeks ago. It did not take into account another document turned over to the defense last week and leaked on pro-Bundy websites that raises more criticism of the BLM’s conduct and use of force during the cattle roundup.
A federal investigator alleged in a Nov. 27 memo to the assistant U.S. attorney general that prosecutors in the Bundy ranch standoff trial covered up misconduct by law-enforcement agents who engaged in “likely policy, ethical and legal violations.”
In an 18-page memo, Special Agent Larry Wooten said he “routinely observed … a widespread pattern of bad judgment, lack of discipline, incredible bias, unprofessionalism and misconduct” among agents involved in the 2014 standoff.
He said his investigation indicated federal agents used excessive force and committed civil-rights and policy violations.
Rallying anti-government groups
For many Americans, images of the four-day standoff in a dusty wash below Interstate 15 northeast of Las Vegas were shocking. Hundreds of protesters, ranchers and militia members took armed positions around federal law-enforcement officers, some lying prone on freeway overpasses and sighting down long rifles.
The Bundys and Payne have been charged with 15 felonies, including conspiracy, obstruction of justice, extortion, using firearms in the commission of crimes, assault and threatening federal officers. If convicted, they could spend the rest of their lives in prison.
The Bundys and other defendants have maintained there was no conspiracy and that supporters were staging a peaceful protest and exercising their constitutional rights to bear arms.
For decades, the Bureau of Land Management ordered Cliven Bundy to remove his cattle from federal lands, and in 2014 the agency obtained a court order to seize his cattle as payment for more than $1 million in unpaid grazing fees.
The Bundys launched a social-media rallying cry. Hundreds of supporters, including members of several militia groups, converged on the Bundys’ ranch. Federal agents abandoned the roundup, saying they were outgunned and in fear for their lives.
Last year, the government charged 19 people for their roles in the standoff. Two men took plea deals. Trials for the remaining 17 defendants were broken into three tiers based on their alleged levels of culpability.
Myhre and his team have described the Bundys and supporters as vigilantes, willing to risk a gunbattle in defiance of lawful court orders. He has said they were prepared to do anything to stop Bundy’s cattle from being seized.
Myhre rejected the notion that the Bundys were staging a lawful protest over land rights along with claims they were acting in self defense against aggressive government agents.
False starts, acquittals stymie prosecution
Making a solid case against Bundy and his supporters has so far eluded prosecutors. Two federal juries in Las Vegas have rejected conspiracy claims against six defendants in earlier trials.
A jury in April deadlocked on charges against four of the first six defendants. It convicted Gregory Burleson of Arizona and Todd Engel of Idaho on weapons and obstruction charges but dismissed all of the conspiracy charges.
The government launched its retrial of the four defendants in July. But a second federal jury did not return any guilty verdicts after four days of deliberation.
Richard Lovelien of Oklahoma and Steven Stewart of Idaho were acquitted on all counts and walked out of court in August free after spending more than a year in prison.
Eric Parker and O. Scott Drexler were acquitted on most charges, but jurors deadlocked on a few weapons charges. Rather than face a third trial, both pleaded guilty to a misdemeanor charge of obstructing a court order.
Ryan Bundy, who is serving as his own lawyer, stood up in court Wednesday and asked Navarro if the government’s misconduct would result in overturning the convictions of Burleson and Engel.
Navarro said those issues would need to be addressed separately.
The Bundy family was greeted by a knot of supporters and reporters as they walked out of the courthouse Wednesday.
Cliven Bundy’s wife, Carol, strode arm-in-arm with her son Ammon and shouted, “Let’s go home!”
Cliven Bundy remains incarcerated of his own volition. Navarro recently recently freed Ammon and Ryan Bundy and Payne after more than 18 months in custody.
Cliven declined release as a form of protest over the other defendants who remain incarcerated. He appeared in court Wednesday wearing a blue prison jumpsuit.
Ammon said he believed they all would have been acquitted if the case had not ended in mistrial. And he said the remaining defendants who have yet to stand trial also will win.
“I am grateful and humbled that the God of this great universe has given us complete advantage,” he said, adding that he remains prepared to stand against government overreach. “I’m prepared to to do what it takes … to promote and offer freedom to our children.”
Now, he said, he wants to get back to his home in Idaho.
“I have little babies that need their father and a wife that needs her husband,” he said.
Standing near his mother and brother outside the courthouse, Ryan Bundy said there is still work to be done to get the case entirely dismissed.
He does, however, have plans for Christmas.
“I’m going to eat some pie, how about that?” he said. “I’m going to enjoy my family.”