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RJ lawyer says public has right to evaluate evidence in Bundy case

The Las Vegas Review-Journal’s lawyer chided federal prosecutors in court documents late Thursday for trying to block its bid to oppose government secrecy in the Bunkerville standoff case.

Maggie McLetchie, who also represents Battle Born Media and The Associated Press, said the public “has a right to evaluate the nature of the government’s case” against Nevada rancher Cliven Bundy and 18 other defendants stemming from the April 12, 2014, armed confrontation with law enforcement near Bunkerville.

“This case in part involves the fine line the government must walk when criminalizing speech — especially when the speech at issue is critical of the very government that is prosecuting the case,” McLetchie said.

Federal prosecutors have failed to provide “good cause” for a protective order to withhold their evidence from the public, and the news organizations have a clear First Amendment right to intervene and point that out, McLetchie wrote.

“Consideration of the First Amendment is particularly important in this case given that … the overwhelming majority of the defendants oppose the government’s requested protective order,” McLetchie argued.

Federal prosecutors contend the case is not about the free speech rights of the defendants, but rather about their criminal actions in the alleged conspiracy to assault federal agents who had rounded up the Bundy cattle that were grazing on federal land.

Prosecutors have maintained that they are concerned about the safety of the witnesses and agents in the case, and in court papers last week they pointed to a Facebook threat against one of the prosecutors in the case.

They suggested the threat “appears to call for a lone wolf” attack on the prosecutor, and they cited the June 2014 slaying of two Las Vegas police officers by Bundy followers Jerad and Amanda Miller as an example of how such a threat can turn deadly.

Prosecutors want to prohibit defense lawyers from disclosing copies of critical trial evidence, including sworn search warrant affidavits and FBI and other law enforcement investigative reports.

U.S. Magistrate Judge Peggy Leen has issued a temporary order to keep the evidence under wraps while she decides whether to let the media intervene and oppose a permanent protective order.

McLetchie argued that the government is being “somewhat disingenuous” in contesting the media’s intervention because it did not oppose letting the Review-Journal seek to dissolve a protective order in the long-running homeowners association fraud case.

The lawyer agreed with prosecutors that the safety of those involved in the Bundy case is a priority.

”However, the government here has failed to articulate specific examples of how public disclosure of discovery in this case would cause a clearly defined and serious injury,” she wrote.

“Moreover, the government has failed to demonstrate that other avenues of protection — such as redaction or a more narrowly tailored protective order — would not strike a better balance between the need to protect witnesses and other parties and the public’s right of access to information about this case.”

Contact Jeff German at jgerman@reviewjournal.com or 702-380-8135. Find @JGermanRJ on Twitter.

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