Another major case has been thrown out due to prosecutorial abuse by the United States Department of Justice. We have previously discussed cases where federal prosecutors have withheld evidence and filed false or misleading statements to the court. Now, U.S. District Court Judge Gloria Navarro has issued a dismissal with prejudice against the Justice Department in the case against Cliven Bundy and his sons due to what Navarro describes as flagrant and knowing violations of professional ethics and federal law by the Justice Department. In past cases, the Justice Department has shown little commitment to discipline, let alone terminate, anyone for the violations (or the waste of millions of dollars). In this case, however, Attorney General Jeff Sessions has called for a review of the case.
Once again, the Justice Department has been accused of violating the Brady Rule, the foundational evidentiary rule that requires prosecutors to disclose potentially exculpatory evidence to the defense. The Justice Department has been a serial violator of Brady for decades.
While many judges seem to struggle to avoid findings of misconduct against federal prosecutors, Navarro remained firm in upholding the basic tenets of judicial independence and integrity. By dismissing with prejudice, she barred the Justice Department from trying the defendants again in light of the misconduct of the federal prosecutors.
The federal prosecutors have not been particularly successful in their past efforts. Two Las Vegas juries acquitted or deadlocked on felony charges against Ammon Bundy, 42, and Ryan Bundy, 44. They faced beat federal felony charges in a case stemming from a 41-day standoff at an Oregon wildlife preserve two years ago.
The latest case was troubling in its effort to use the exercise of free speech as the basis for criminal charges — claiming that Bundy and his sons engaged in inflammatory rhetoric in opposing the government’s effort to stop the grazing cattle outside Bunkerville, Nev., in 2014. The four defendants were charged with threatening a federal officer, carrying and using a firearm and engaging in conspiracy/
Assistant U.S. Atty. Steven Myhre maintained that the federal team had simply “culled the database with witness protection in mind.” Navarro did not buy it for good reason.
The judge earlier detailed six different types of evidence withheld by the government. This evidence include the presence of an FBI camera on a hill overlooking the Bundy ranch. The DOJ mocked allegations by the defendants that there were devices planted near the ranch while knowingly withholding evidence of at least one such device. There were also maps and threat assessments that seemed to support the public statements by the Bundys that they were being surrounded. Some of these documents were linked to lead bureau special agent Dan Love, who was later fired by the agency. Other evidence showed that an agent did appear near the ranch in tactical gear and carrying a heavy weapon before the call went out for support.
The evidence would have led credence to the call by the Bundys for help in dealing with threats from the government.
Some of the most serious allegations, in my view, dealt with the withholding of threat assessments that concluded that the Bundy did not represent a likely threat of violence. Such assessments were developed by the FBI Behavioral Analysis Unit, the Southern Nevada Counter Terrorism unit, the FBI Nevada Joint Terrorism Task Force, the Gold Buttle Cattle Impound Risk Assessment and the Bureau of Land Management.
The result has been the expenditure of millions on prosecutions based in part on some troubling theories and advanced through unethical means. Yet, there is not even a suggestion of discipline from Main Justice, which is why this pattern will continue in federal courts. The Justice Department has never shown a particularly credible record of policing its own ranks. The Brady violations reflect the absence of any real deterrent due to this culture of tolerance and willful blindness at Main Justice. Hopefully, the review ordered by Sessions will result in real changes and actions by Main Justice to deal with this persistent problem. However, in seeking changes, Sessions will face a bureaucracy with a proven record of resistance to reform.
Judge Dismisses Bundy Case With Prejudice After Finding of Extensive Unethical Conduct By Federal Prosecutors