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Outrageous Prosecutorial Misconduct: Cliven Bundy Case Dismissal – Lessons for Every American

A federal judge has dismissed with prejudice the charges brought against Cliven Bundy and it’s a big deal.  It’s always a big deal for a judge to dismiss a case “with prejudice,” because that means the case is over.  There’s no option for the government to re-file their criminal lawsuit.  It’s over.

Dismissed with Prejudice Because of Federal Prosecutorial Misconduct

But this Bundy Dismissal Order is an even bigger deal than the “with prejudice” decision.  That’s because the basis of this dismissal is because of PROSECUTORIAL MISCONDUCT.

The case has been dismissed with finality because the judge found that the Attorney General’s Office did some very bad things.

 

 

This is tremendously important for every American to know about and understand.  So, first things first, we’re including the complete transcript of the hearing where Federal U.S. District Judge Gloria Navarro ruled right here:

Transcript of Dismissal Ruling Cliven Bundy by Michael Lowe, Attorney at Law on Scribd

 

The Cliven Bundy Case

Here in Texas, you may or may not remember the Cliven Bundy case and what happened up in Nevada a while ago.  Here’s the background.

Bundy is a rancher.  For many years (think decades) he had been allowing his cattle to graze on public lands held by the federal government and overseen by the Bureau of Land Management (BLM) and the National Park Service.  Grazing is okay with the government.   Not paying the “grazing fee” to do it, apparently, is not.

It’s reported that the grazing fee was $1.35/month for each cow and calf pair when the controversy began.  The rationale for the fee: it’s charged to cover part of the cost of maintaining the lands.  Bundy and his dad had paid the grazing fees for years.  Then Cliven Bundy stopped.

Why?  Cliven Bundy argued that the government, specifically the BLM, had no right to charge the fee.  Bundy believes that the United States Constitution forbids the federal government from owing land.

Of course, in due time the BLM revoked rancher Bundy’s grazing rights because of non-payment of these grazing fees.  Twenty years went by. The BLM did nothing.

Then, in 2014, federal agents showed up to take the cattle that were on BLM acreage.  By now, Bundy owed grazing fees (with interest and fines) that exceeded $1,000,000.00.

We all remember about “forfeiture” right?  Well the federal government showed up to take Bundy’s herd in payment for those back grazing fees.

And Bundy fought back.  He filed a motion to dismiss the federal action against him.  And he prepared to defend himself and his property.  He was joined by friends and allies – and soon there was international news coverage of the Libertarian Militia armed with rifles and wearing cowboy hats facing down federal agents.

Federal Charges Against Bundy; Trial Begins in October 2017

Seventy-one year old Cliven Bundy was arrested along with his sons, Ammon and Ryan.  Other charges were filed against his sons Melvin and David, and against fellow ranchers.

Read the federal indictment here.

Jury selection began in October.  Acting Nevada United States Attorney Steven Myhre was lead prosecutor on the case.  For details here read, “Experts, attorney offer keys and what to watch for in Bundy trial,” written by Chris Kudialis and published in the Las Vegas Sun on October 30, 2017.

Then came the motion to dismiss the case based upon misconduct by the federal government and its prosecutors.

Misconduct by the Federal Government

As we’ve discussed before, the prosecutor in a criminal case is extremely powerful.  This is true both in the federal system and the Texas courts.  The prosecutor may decide to do wrong.  He (or she) may make a mistake out of zeal, greed, or ambition.

And these things most likely will happen with impunity unless there’s a passionate criminal defense lawyer watching over things.  This is because the defense attorney knows to be on the lookout for misconduct.  And it’s the defense that brings the problem to the attention of the judge via a motion based upon what’s going on.

Regardless of the motivation, prosecutorial misconduct endangers the very heart of the justice system.  It is unethical and immoral – and at epidemic proportions in this country today.  Including Texas.

Why the Bundy Case Was Dismissed: They LIED and HID THINGS

Cliven Bundy saw his entire criminal case dismissed in a court hearing this month.  The judge was clear:  she found the federal government’s actions as an “outrageous” violation of due process, a guarantee provided by the Fifth Amendment.

What did the government do? (For details, read the coverage in Slate magazine written by Mark Joseph Stern and published on January 9, 2018, entitled “The Cliven Bundy Prosecution Was a Miscarriage of Justice. He Deserved to Walk Free” and the National Review coverage by David French, entitled “The case against the Nevada rancher, characterized by the government as ‘paranoid,’ is dismissed.”)

  1. Prosecutors lied about Bundy’s actions in the Indictment. (The indictment is a document prepared by the prosecution and upon which the criminal case is based.)
  2. Prosecutors ignored a whistleblower report by former BLM investigator Larry Wooten. This included huge revelations of (a) confirmed misconduct by the BLM and (b) the termination of the BLM agent responsible for the Bundy standoff (that you probably saw on TV).
  3. Prosecutors withheld documents from the defense (including surveillance footage of the Bundy Ranch).
  4. Prosecutors withheld information from the judge (ditto the video example).
  5. Exculpatory evidence was not turned over to the defense in violation of Brady.

What Judge Navarro Ruled from the Bench: Consider Her Words and What They Mean for Our System of Justice

Judge Gloria Navarro provided justice.  She ruled from the bench at the conclusion of the evidentiary hearing based upon the defense motion that the federal case would be dismissed without the change of a retrial.  From Judge Navarro:

“The Court is troubled by the prosecution’s failure to look beyond the FBI file that was provided and construes the Brady  violations in concert as a reckless disregard of its discovery obligations. The government’s recklessness and the prejudice the defendants will suffer as a result of a retrial warrant the extreme measure of dismissing the Indictment because no lesser sanction would adequately defer — deter future investigatory and prosecutorial misconduct.

“The government is only proposed a new trial as the appropriate remedy for their discovery violations. However, its conduct has caused the integrity of a future trial and any resulting conviction to be even more questionable.

“Both the defense and the community possess the right to expect a fair process with a reliable conclusion.

“Therefore, it is the Court’s position that none of the alternative sanctions available are as certain to impress the government with the Court’s resoluteness in holding prosecutors and their investigative agencies to the ethical standards which regulate the legal profession as a whole.

“The Court finds that the government’s conduct in this case was indeed outrageous, amounting to a due process violation, and that a new trial is not an adequate sanction for this due process violation. Even if the government’s conduct did not rise to the level of a due process violation, the Court would nonetheless dismiss under its supervisory powers because there has been flagrant misconduct, substantial prejudice, and no lesser remedy is sufficient.

“Dismissal is necessary as to these four defendants: Ryan Payne, Ryan Bundy, Ammon Bundy, and Cliven Bundy, and dismissal is justified for all three of the enumerated reasons provided by the law:

Number one, to properly remedy the constitutional violation;

number two, to protect judicial integrity by ensuring that a conviction rests only on appropriate considerations validly before a jury; and

number three, to deter future illegal conduct.”

— Transcript pages 22-23.

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For more on prosecutorial misconduct, read our web resources on appeals, check out Michael Lowe’s Case Results, and see our earlier coverage on this important issue including:

  1. Prosecutorial Misconduct: How Bad Is It? Dallas Chief Investigator Pleads Guilty to Taking Bribe
  2. Prosecutorial Misconduct in Texas Murder Trials: Prosecutors Fighting Against Misconduct Allegations
  3. Prosecutorial Misconduct in Texas Alert: Ethical Rules Held to Have Broader Duty Than Brady to Turn Over Exculpatory Evidence to the Defense

 

 

 


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