Bundy trial delayed as the defense hammers on feds

Defense wants more transparency on surveillance footage and shredded documents.

 

The trial of Nevada rancher and melon farmer Cliven Bundy has been delayed another week, following a decision to postpone by the federal judge. Defense lawyers have argued that the U.S. Attorney’s Office has not been forthcoming with evidence that could help acquit Bundy and three others in the biggest trial since the 2014 standoff between the rancher, with hundreds of supporters, and federal agents outside Bunkerville, Nevada.

“A specter is haunting this case,” Bundy’s lawyer, Bret Whipple, wrote in a court motion this week. U.S. District Court Judge Gloria Navarro agreed to postpone the trial in response to defense demands that the prosecutors produce more information about surveillance cameras from the crime scene that they believe the government is hiding. “All of the power of the United States exercised through its law enforcement agencies and through the United States Attorney’s Office has generated a fog that obfuscates the truth,” Whipple wrote. 

Cliven Bundy’s attorney, Bret Whipple, talks with media outside the federal courthouse in Las Vegas. Whipple and the defense team convinced the judge to postpone the start of the trial until Nov. 14.
Tay Wiles

Cliven Bundy faces charges including felony conspiracy and threatening federal officers, alongside sons Ryan and Ammon, and Montana militiaman Ryan Payne, for leading an armed confrontation with the Bureau of Land Management and National Park Service. The agencies sought to impound Bundy’s cattle, which had been illegally grazing public land for decades. Bundy believes the federal government has no legal right to own land. During the standoff, the government abandoned its operation in what authorities have said was an attempt to avoid violence.

A hearing is scheduled today to address defendants’ requests to be released from jail for a period of time preceding trial. A second hearing to address unanswered questions related to whether recordings from surveillance cameras exists will take place next week. The trial is slated to begin the following day.

Whipple motioned Monday to dismiss all charges, based on information surfaced this week that federal agencies used at least one camera to surveil the Bundy Ranch property and other sites near the standoff. According to testimony from a retired National Park Service ranger who helped lead the operation, the FBI had a live feed to monitor certain locations. The defense team says the prosecutors acted in bad faith by not providing the information sooner, and that the government must give an explanation for the cameras, as well as any footage available. Prosecutors insist they spoke to the camera technicians and are not aware of any footage that exists. This week, Navarro ordered the government to investigate further. “If it has potentially useful information, then the defense is entitled to it,” she said.

This complication follows motions to dismiss the charges based on a separate issue. After the government abandoned the impoundment because of safety concerns, trash bags of shredded documents were found in dumpsters that federal authorities used near their base of operations. The defense says those documents were an indication that the government “destroyed evidence.” But a judge denied a motion to dismiss the case based on that argument.

With the jury seated and the trial about to begin, the defense is working to denude the government of its credibility in an attempt to dismiss the case. They will likely employ a similar strategy during the trial to divert attention from Bundy’s alleged wrongdoing. If defense lawyers can sow doubt in the jurors about the honesty or competence of the feds, they could win the case. That would mark a major defeat for federal prosecutors, who have failed to secure significant convictions in either the 2016 Bundy-led takeover of Malheur National Wildlife Refuge or the Bunkerville standoff.

There may be no better time to play to jurors’ skepticism over federal authority than in today’s political environment. President Donald Trump currently has the lowest voter approval of any modern president, at 36 percent, and less than two weeks ago his former campaign chairman was indicted for conspiracy against the United States. Unsubstantiated theories have re-circulated in recent weeks that former presidential candidate Hillary Clinton made a uranium deal with Russia. Next week, U.S. Attorney General Jeff Sessions will take questions from the House Judiciary Committee about his alleged involvement with Russia and the Trump campaign.

Matt Schindler, a defense attorney in Oregon, said that since he worked on last year’s Malheur occupation trial, he’s noticed today’s political environment can help convince jurors not to side with the government: “The stuff that’s going on in D.C. right now—that’s Exhibit 1A in my defense,” he said recently.  

A key part of the current defense team’s attacks on government credibility is former BLM employee Dan Love. Love was a special agent for the agency who led a controversial raid for illegal artifacts in Utah in 2009 and has a reputation as arrogant and brash. Love has faced allegations of corruption and of obstruction of investigations in two separate reports this year by the Office of Inspector General. The Bundy defense claims there’s a good chance he was involved in destruction of evidence in the Bundy case, though the government insists there is no indication of that.  

The efforts to delegitimize Love put larger Western issues on display. In many ways, Love is a symbol of the struggle over power and public lands Westwide. While at the BLM, Love was based in Utah, a state that has had tremendous influence on land management across the West and whose legislators are currently leading a renewed fight to erode federal authority over public lands. Southern Utah remains a central hub for the Constitutional sheriffs movement — a loose-knit, national network held together by a belief that sheriffs are the supreme law of the land and trump the federal government. Love clashed with sheriffs who were leaders of that movement.

Congressman Rob Bishop, R-Utah, who has been instrumental in his state’s attack on national monuments this year and who has long been a critic of federal land management, pushed to have the OIG’s full investigation of Love publicly released. Another Utahn, former Congressman Jason Chaffetz, who introduced a bill this year to defund BLM law enforcement, is mentioned in Bundy trial documents, for his requests to have Love investigated for misconduct.

Despite an alleged history of misconduct, there’s no evidence Love’s behavior at the Bundy impoundment was out of line, the government says. Documents that detailed the April 2014 operations were shredded because they included personal information of government employees. Shredding these types of documents is a regular policy, government witnesses have testified.

National Parks Service employee Randolph Lavasseur testified last week that the documents were shredded because “we heard that the compound may be stormed” by the hundreds of people protesting the cattle impoundment. Former National Park Service ranger Mary Hinson, the lead for her agency during the event, told the court that the night before the April 12, 2014, standoff: “We received information on a conference call that there were dangerous individuals in the area. … We had no idea what was going to happen that night.”

The U.S. Attorney’s Office said in a court filing for a related trial earlier this year that in the days surrounding the standoff Bundy supporters used social media to spread information about a law enforcement officer, “calling for others to harass their victim with pointless and threatening telephone calls, and seeking still others who lived near their victim to join in their bullying tactics to intimidate and make it uncomfortable for the victim.” The document describes how BLM employees and Utah contractors hired to hold the impounded cattle received death threats from Bundy supporters. In a separate memorandum, A BLM special agent said the Holiday Inn where government staffers stayed during the impoundment operation received seven threatening phone calls. The agent alleged that one caller said that if BLM people were not kicked out, the desk employee would be “dragged out and shot in the head.” The defense team hoped to keep the hotel threat out of court, but Navarro ruled that it is relevant to the case. 

Safety of employees has come up multiple times over the past week in court. In a hearing on Nov. 8, U.S. Attorney of Nevada Steven Myrhe indicated that, similar to the reasons for shredding documents, the surveillance cameras were used for security purposes, not for a nefarious investigation of Bundy Ranch. 

Tay Wiles is an associate editor for High Country News: [email protected]

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