NV prosecutors seek new trial against Bundys, say evidence violations were ‘inadvertent’

The Oregonian – by Maxine Bernstein

Prosecutors on Friday urged a federal judge to allow them to retry Nevada cattleman Cliven Bundy, his two sons and a fourth man, arguing that any failure to provide evidence to the defense in the last trial was simply “inadvertent” or because they reasonably believed the law didn’t require them to share the material.

“The Brady violations found by the court are regrettable and benefit no one,” Nevada’s Acting U.S. Attorney Steven Myhre wrote in a 55-page legal brief. “But because the government neither flagrantly violated nor recklessly disregarded its obligations, the appropriate remedy for such violations is a new trial.”  

The prosecutors claim they couldn’t simply turn over all the material, citing “harassment and threats” made to witnesses, victims and officers in the case who would be in jeopardy if personal information got out, especially on social media.

They also cited the massive volume of documents, videos and emails from two federal agencies and Las Vegas and Nevada law enforcement agencies that they needed to cull, and the constraints of the U.S. attorney’s “low-tech” database.

The 1.5 terabytes of information shared with defense was “by far the largest review and disclosure operation” in the history of the Nevada’s U.S. Attorney’s Office, Myhre wrote.

Prosecutors argued that the six Brady violations found by the judge encompass “one small portion of the discovery” and that the defendants can proceed with a new trial and “all the information they’re entitled to.”

The legal brief represents the prosecution team’s first significant comments since U.S. District Judge Gloria M. Navarro declared a mistrial last week in the case brought by the government against Bundy, sons Ammon and Ryan Bundy and Ryan Payne in the April 2014 armed standoff with federal officers.

Prosecutors are undertaking a substantial review of all their evidence and will share any further reports it may discover, they noted. The Brady law, named for the landmark 1963 U.S. Supreme Court case Brady v. Maryland, requires prosecutors to turn over all evidence that may prove favorable to defendants.

“The government takes its discovery obligations seriously,” Myhre wrote. “The government seeks justice on the merits of a case, not through dodging discovery rules and technicalities, or by obscuring violations if and when they may occur.”

Defense lawyers said the harm caused by the violations and the prosecution’s continued failure to accept responsibility demand a dismissal of all the charges against the four men. They were indicted last year on conspiracy and other allegations, accused of rallying militia members and armed supporters to stop federal agents from impounding Bundy cattle. Officers were acting on a court order filed after Cliven Bundy failed to pay grazing fees and fines for two decades.

“The government’s irresponsible and, at times, false proffers to this court as well as its dismissiveness toward the defense inspires no confidence in the prospect of fairness,” Brenda Weksler, an assistant federal public defender representing Payne, wrote on behalf of all the defendants. “Anything short of a dismissal is tantamount of condoning the government’s behavior in this case. … Dismissal is the only way to ensure such conduct will not happen again.”

The judge found the prosecutors’ violations were “willful,” and led to due process violations. She said they waited too long to provide FBI and other agency reports and maps on surveillance, including a camera and snipers, outside the Bundy ranch, threat assessments that indicated the Bundys weren’t violent and nearly 500 pages of internal affairs documents involving U.S. Bureau of Land Management special agent Dan Love, who led the cattle roundup. He has since been fired from the agency for unrelated misconduct.

Both sides are expected to return before Navarro on Jan. 8 for a hearing to determine whether the government will be allowed to retry the case.

Myhre wrote that the Nevada U.S. Attorney’s Office began working in October 2014 to collect investigative documents from the Bureau of Land Management and FBI, as well as historical documents related to Cliven Bundy’s long-running grazing dispute. The combined database contained more than 30,000 documents or 250,000 pages.

In addition to that database, there were 45 search warrants that generated more than 500,000 pages of affidavits and evidence lists, more than 82,000 emails and 75 videos, including bodycam and dashcam videos from the Las Vegas Metropolitan Police Department and Nevada Highway Patrol.

The prosecution team looked through all the information with witness protection in mind, their legal motion said.

“The prosecution team went ‘low tech,’ spending hundreds of hours conducting word searches for documents, reviewing documents one at a time for relevant information and tagging documents individually for relevancy and future production,” Myhre wrote.

Prosecutors also believed the court’s restrictions barring self-defense arguments during earlier standoff trials this year meant they didn’t have to share information about certain aspects of the law enforcement response.

The prosecutors said, for instance, they didn’t become aware until Nov. 10 of a Tactical Operations Center log that referred to a surveillance camera outside the Bundy home – it was found on a thumb drive left in a federal vehicle — and still don’t consider it relevant to the Bundys’ defense. It contained four notations from observations on April 5 and April 6, 2014, largely noting the type of vehicles arriving and that a Bundy was seen outside on the phone.

“The government argued in good faith that the information was not material, and this court concluded that it was. That may make the government wrong, but being wrong does not equate to bad faith, nor does it show a flagrant disregard of the government’s discovery obligations,” Myhre wrote.

As for documents referencing snipers or maps of officers’ positions, some of the information was contained in earlier reports that had been shared on time, showing the prosecution’s actions weren’t done for “tactical advantage,” Myhre wrote.

The prosecution also didn’t think the threat assessments would be helpful to the defense, the memo said. Some were done as early as 2012 and considered “stale” and irrelevant, he wrote.

The threat assessments have proven a source of significant arguments between the prosecution and defense. A 2012 FBI Behavioral Analysis Unit assessment concluded there was a “low to moderate risk of violence” by Cliven Bundy at that time and that the Bureau of Land Management was “trying to provoke a conflict.” A separate FBI operations order described Cliven Bundy “as not being violent based on past history, but if backed into a corner could be” and that Ryan Bundy “could be violent.” A BLM law enforcement assessment said the Bundys “will probably get in your face” but not engage in a shootout. A Gold Butte Risk report referenced media talking points for the BLM to stay ahead of negative publicity that apparently were not used.

The prosecution also sought to explain its dismissive response to Ryan Bundy’s pretrial motion, which sought any information on “mysterious devices” outside the Bundy ranch, as a “fantastical fishing expedition.”

The words referred to Ryan Bundy’s request for the make and model of every piece of equipment and his “speculat[ion]” that the camera was being used to “paint” the Bundy home “for artillery or [aerial] target acquisition,” Myhre wrote. He added that his team never suggested “the Court’s request” for information about the camera was a “fantastical fishing expedition.”

In the weeks leading up to the April 12, 2014, standoff, more than 100 law enforcement officers were involved in providing security, prosecutors said. They acknowledged they “inadvertently” didn’t share federal reports on Bureau of Land Management officers, dressed in tactical gear and armed with AR-15 rifles, on observation posts near the Bundy ranch before trial, but noted that some of the information was contained in another Bureau of Land Management operation report shared in May. It described as many as five officers on listening/observation posts around the Bundy ranch.

They said it was “simply an oversight” they didn’t share a 2015 report on a BLM agent who was on watch in tactical gear east of the Bundy ranch in early April 2014 with a rifle and using a “seismic sensor,” to alert him and another of cars traveling on Old Gold Butte Road, or the report about another land agent on “roving assignment” near the impound center during that time.

Myhre wrote that “it was not apparent” that these reports were helpful to the defense in challenging their federal conspiracy, assault or other charges, which resulted from actions that occurred several miles from the Bundy ranch.

The defense, however, said the prosecution’s behavior “was instrinsically wrong and has defeated the ends of justice.”

Defense lawyers pointed out that the judge already found that the FBI knew of the evidence that was withheld and that there were federal prosecutors present during interviews of officers whose reports were not disclosed.

“The government’s untimely disclosures came almost four years after the government began its investigation, and almost two years after the government secured its indictment. Based on the indictment, the defendants lost almost two years of their lives in custody,” Weksler wrote.

The prosecution’s failure to recognize what material needed to be shared with the defense, she wrote, “affects cases beyond the one in question and is emblematic of a much larger problem.”

The government shouldn’t be allowed a “do-over” with a different jury, now that it’s more familiar with the Bundys’ and Payne’s defense theories and how the defense worked to eliminate potential jurors, she wrote. Based on questions some jurors posed to witnesses during the trial that was halted, Weksler wrote that it appeared the government’s case was “faltering.”

“The government cannot be fairly given another bite at the apple as a result of its own flagrant misconduct,” Weksler wrote.

— Maxine Bernstein

http://www.oregonlive.com/oregon-standoff/2017/12/nevada_prosecutors_seek_new_tr.html