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Mistrial declared in Bundy trial over withheld evidence

Updated December 20, 2017 - 5:46 pm

A judge declared a mistrial Wednesday in the Bunkerville standoff case involving rancher Cliven Bundy and other defendants, finding that the federal government improperly withheld evidence.

“A mistrial in this case is the most suitable and only remedy available,” U.S. District Judge Gloria Navarro said.

Bundy, his sons Ammon and Ryan, and co-defendant Ryan Payne will face a new trial early next year on charges arising from the 2014 standoff with federal agents.

Navarro said video surveillance, maps and FBI interview information were willfully withheld by the prosecution in violation of due process required by the U.S. Constitution.

Considered collectively, she said, the evidence that was withheld was favorable to the defendants, and its untimely disclosure was prejudicial in that it “undermined the confidence of the outcome of the trial.”

“The Attorney General takes this issue very seriously,” Department of Justice spokesman Ian Prior wrote in an email after the ruling.

According to the statement, a discovery expert with the department will examine the case and advise the agency on its next steps.

Steven Myhre, Nevada’s acting U.S. attorney and the lead prosecutor on the Bundy case, issued the following statement:

“We respect the ruling of the Court and take very seriously our discovery obligations. The Office welcomes the assistance of the Attorney General as we continue to evaluate the case in light of the Court’s ruling.”

The suppressed evidence

In her ruling, Navarro cited case law that says illegal suppression of evidence occurs when the government fails to turn over information that was available not only to the prosecution, but to federal investigative agencies.

She said information and reports obtained and created by the FBI were available to prosecutors and should have been made available to the defense.

Included in the pieces of evidence that led to the mistrial were interview reports regarding video surveillance of the Bundys, including information about the camera’s location and proximity to the Bundys’ home, and an interview report indicating a BLM officer wore tactical gear during the standoff.

Navarro said this information might have been used by the defense to counter government claims that the placement of the camera on Bundy property was incidental to their operations and not intentionally aimed at surveilling the family’s conduct, as well as claims that the government did not use snipers in the standoff and that no BLM snipers existed.

Interview reports about the surveillance were made available just 30 days before the start of the trial, and the FBI report about the tactical gear was created in March 2015 but was not disclosed to the defendants until Nov. 7 of this year, the judge said.

She said the government also failed to disclose an FBI threat assessment from 2012 that discussed the nonviolent nature of Cliven Bundy, which could have been used to undermine government claims that the Bundys posed a threat during the standoff and to bolster the defendants’ claims that the government acted unreasonably.

Since the start of trial in late October, the defense has received 3,300 pages of discovery that was produced past deadline.

Had the evidence been provided in a timely manner, Navarro said, defense attorneys would have asked different questions of the jury, selected jurors differently and made stronger arguments during their opening statements.

Navarro said she wanted to be clear that her order did not mean that the evidence was in fact exculpatory or that the defendants were not guilty.

“That’s not my technical position, and it’s not a factual decision to be made by this court,” she said. “The defense has a right to information so it can provide it to the jury so the jury can decide.”

The new trial, which must begin 70 days after an ordered mistrial, is set to begin Feb. 26.

‘Beginning of the end’

After Navarro’s ruling, Ryan Bundy stood and requested amended release conditions for himself and his fellow defendants in light of the mistrial. Navarro said he would have to make his request to the pretrial office at a later time.

Moments after the ruling, a livestock semitrailer with “Ladybug Ranch” plastered on the back drove past the courthouse, blaring its horn.

Ammon Bundy said after the mistrial that he had mixed feelings about Navarro’s decision.

“It means we lost that jury, and we’re very sad about that,” he said outside the courthouse. “I was very convinced that that jury would acquit us.

But, Ammon Bundy said, the judge had to do something.

“She clearly laid out the egregious actions of the government,” he said. “And ‘willfully’ means they did it on purpose. … We’ve been saying that for two years.”

Ryan Bundy, who is representing himself, said he hopes the mistrial will change public opinion of the case in favor of his family.

“Hopefully they will see now that we weren’t lying, that the government is the perpetrator here,” he said. “The government is the criminal here, not us.”

Cliven Bundy was not released Wednesday, but his attorney said his next goal is to make sure that the mistrial is declared “with prejudice,” which would prevent the government from bringing the case a second time. Navarro has scheduled a hearing for Jan. 8.

“It’s the beginning of the end,” attorney Bret Whipple said of the mistrial. “Honestly, I think on Jan. 8, the evidence is there to support the showing of prejudice, and this will be the end of the Bundy trial.”

Contact Kimber Laux at klaux@reviewjournal.com. Follow @lauxkimber on Twitter.

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