Unsealed motions in NV Bundy case detail prosecution's violations

Despite what one thinks of the Bundys or the issue of federal lands and their management or any of the other related political sideshows, prosecutorial misconduct is above politics and party. It needs to be condemned and punished whenever and wherever we find it regardless of our politics, much less our opinions of the defendants. The crimes (real or not) of the defendant do not excuse the crimes of the prosecutor. The prosecutor can be just as guilty as any defendant, and must be held accountable for their crimes. So this thread isn't intended to rehash the charges against the Bundy defendants, but to focus on the gross prosecutorial misconduct by U.S. Attorneys trying the Bundy defendants.

So after the judge declaring a mistrial due to prosecutorial misconduct in the Bunkerville Standoff trial, both the prosecution and the defense have filed their motions regarding whether/if a new trial should be ordered, providing details of what exactly the prosecutorial misconduct entailed. The defense is naturally demanding that all charges be dismissed; and, of course, the prosecutors have requested yet another trial, which would be the third. The first ending in a hung jury on most charges for most defendants, and the second one being the trial that was just declared a mistrial.

Unsealed motions in NV Bundy case detail prosecution's violations

... [Judge] Navarro on Dec. 20 declared a mistrial, finding at least six types of Brady discovery violations and that prosecutors "willfully'' withheld the evidence, resulting in due process violations. She set a hearing for Jan. 8 to determine if the case should be dismissed with prejudice, meaning it can't be retried. The government and defendants have until Friday to file their written arguments.

In case it isn't clear, a "Brady violation" is when prosecutors fail to turn over all evidence that favors the defense during "discovery," or they fail to turn it over in a timely manner.

One example in this case is that the prosecution failed to turn over official documents, "Threat Assessments," which determined the Bundys were NOT a threat to federal officials.

In a July 5 email, Ryan Payne's lawyers asked prosecutors for copies of all threat assessments prepared before the April 2014 standoff between Cliven Bundy's supporters and federal officers trying to impound Bundy's cattle for years of failing to pay grazing fees and fines.

Prosecutors characterized the defendants' continued push for the assessments as another in their "long list of frivolous and vexatious pleadings.''

Prosecutors didn't turn over the assessments to Payne, Bundy and Bundy's two sons, Ammon and Ryan Bundy, until the four were in the midst of a trial last month and a government witness under cross-examination acknowledged familiarity with one of the reports.

Another specific example:

Beyond the threat assessments, other evidence that defendants obtained "piecemeal'' during the trial included information about an FBI surveillance camera on a hill overlooking the Bundy home with a live-feed image viewed in a command center and snipers positioned outside the Bundy ranch.

Those would have bolstered the defense argument that Payne summoned militia members and supporters to Nevada because he feared the Bundys were surrounded by federal officers and isolated before the April 12, 2014, standoff.

The information also directly refutes the federal indictment, which alleges the Bundys and Payne used deceit to draw supporters by falsely claiming snipers were surrounding the Bundy home.

These Brady violations have been happening since the defendants were first indicted and throughout the first trial (obviously) and in fact show a willful pattern of behavior... standard operating procedure so to speak:

The unsealed motions filed by Payne's lawyers also signal what his lawyers are likely to argue in Friday's legal brief: that prosecutors repeatedly failed to abide by deadlines set to share favorable evidence with the defense, were dismissive of specific requests for evidence, engaged in a "pattern to ridicule and disparage the defense'' requests and then made "brazen proffers'' to the court that specific information sought didn't exist, only to find out later they were mistaken.

"Mistaken" is rather generous in my opinion. There was no mistake. The prosecutors knew better.

The U.S. Attorney's guidelines on sharing evidence in criminal trials state prosecutors' obligations clearly: "It is the obligation of federal prosecutors, in preparing for trial, to seek all exculpatory and impeachment information from all members of the prosecution team. Members of the prosecution team include federal, state, and local law enforcement officers and other government officials participating in the investigation and prosecution of the criminal case against the defendant.''

Especially this ain't the first time the lead prosecutor, Steven Myhre, has been caught withholding exculpatory evidence:

But, as in the Bunkerville Standoff trial, this case lead to a mistrial due to the prosecution ~ headed by Steven Myhre ~ not disclosing vital exculpatory evidence.

During the mistrial hearing, Chapman’s attorney alerted the court to hundreds of pages of documents that the government had delivered that morning and the previous evening.   They totaled some 650 pages and consisted of rap sheets, plea agreements, cooperation agreements, and other information related to numerous government witnesses, including at least three important witnesses whose testimony was already complete.

This case resulted in a dismissal with prejudice. The government prosecutors ~ headed by Steven Myhre ~ attempted to appeal this decision. The appellate court upheld the ruling and stated clearly:

"This is prosecutorial misconduct in its highest form;  conduct in flagrant disregard of the United States Constitution;  and conduct which should be deterred by the strongest sanction available."  

BOMBSHELL: Myhre Has A History of Brady Violations
These Brady violations -- and the judge's decisions on the pending motions -- will also bear on other defendants who have already been convicted or plea bargained:

The threat assessments, as well as evidence on a surveillance camera and federal snipers, also wasn't shared with the defendants prosecuted in two earlier Nevada trials this year, Payne's attorneys pointed out.

"It bears reminding that this Court sentenced one of these defendants in the Trial 1 group to 68 years and another one is pending sentencing,'' Weksler and Norwood wrote.

I have to also point out that only a month before, the judge had refused to grant a motion by the defense to dismiss the charges based on Brady violations --

finding no basis for defense claims that prosecutors concealed evidence.

-- although she knew the prosecution had:

The Bundys said prosecutors had failed to furnish the defense video evidence in violation of pretrial discovery rules.

The government said a surveillance camera was used for a live video feed before the standoff but no recordings or notes were ever made. The judge denied the defense motion to dismiss the case.

(continued in next post)

(post continued)

Finally, for better or worse -- and I'm afraid worse -- our Attorney General, Jeff Sessions, has gotten involved:

However, a day after the judge declared a mistrial, the U.S. Department of Justice released a statement saying Attorney General Jeff Sessions took "this issue very seriously and has personally directed that an expert in the Department's discovery obligations'' be sent to Las Vegas to examine the case and provide advice as to next steps.

I don't expect much from Sessions because he has already given the prosecution his stamp of approval:

“I’ve got to tell you, it’s impressive when you have a tough case, a controversial case, and you’ve got the top guy leading the battle, going to court, standing up and defending the office and the principles of the law,” Sessions said of Nevada’s Acting U.S. Attorney Steven Myhre.

“I’m not taking sides or commenting on the case,” he said. “Just want to say that leadership requires, a lot of times, our people to step up and be accountable.”

Except he wasn't standing up and defending the principles of the law. He knowingly and willfully violated the letter and spirit of the law again and again. And when push came to shove, Sessions refused to hold that leadership accountable for their own crimes, and he has obviously decided to not only demand the persecution of the Bundys continue, but that this serial violator should continue the persecution. I say "obviously" because that's exactly what is happening. If Sessions wanted to stop it, he could have and he would have.
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There are links to the court filings and other interesting and relevant links at the OP link: Unsealed motions in NV Bundy case detail prosecution's violations

Lots of links here -- Bundy Ranch Prosecutors Appeal For Retrial After They Violated Federal Law -- to other questionable actions by the Feds:

*Hypocritical Prosecutors In Bundy Ranch Trial Seek To Ignore Court’s Order
*Corruption Continues in Upcoming Bundy Ranch Trial As Prosecution Asks Judge To Not Allow Defendants to Defend Themselves
*Upcoming Bundy Ranch Trial: Prosecution Files First Documents and They’re Gonna Be Using Facebook & YouTube
*Bundy Ranch Prosecutors Exposed For Withholding Info & It’s All about Protecting BLM Thug Daniel P. Love
*Govt to Use Evidence Against Bundy Ranch Defendants that has Nothing to do with Bundy Ranch
*Judge in Bundy Ranch Case Wants Defendants In Chains For Trial – Attorneys Challenge Rights Infringement
*Feds Plan to Use Participation in III% Militia and Oath Keepers as Evidence of Conspiracy in Bundy Ranch Retrial
*Government Hid Fact That FBI Witness at Bundy Ranch Trial Ended Up in Jail for Impersonating a Journalist/Private Investigator
*Feds Claim they could Hold Bundy Ranch Defendants 5 Years & not violate 6th Amendment’s Protections for Speedy Trial
*Here’s What The Prosecutors in the Bundy Ranch Case Didn’t Want the Court To See Or Hear (Video & Pictures)
*Did Prosecutors Hide IG Report on BLM Lead Agent’s Misconduct in Bundy Ranch Case?

Other related links:
BUNKERVILLE STANDOFF 2018: THE HIDDEN EVIDENCE AND SO MUCH MORE
1/3 of Idaho lawmakers ask AG Sessions to back off Bundy case
Judge denies 11th-hour bid to dismiss charges against Nevada rancher Bundy

If you have to cheat to get a conviction.... maybe you don't have a case.
Let them go .
Dirty Harry Reid isn't in the picture any more.

Great job once again Boadi.

Definitely should be dismissed with prejudice.

Speaking of Sessions...seems to be the little bastard is a Swamp critter too. Unless he reforms and starts doing his job and working for the American people, we won't have much use for him back here in Alabama. So far he's an effing disgrace.

a reply to: butcherguy

If you have to cheat to get a conviction.... maybe you don't have a case.
Let them go .

I agree. I can't believe that charges could be dismissed for an honest mistake -- a so-called "technicality" -- but knowing and deliberate violations don't demand the same automatic dismissal. We'll see.

But I also think that prosecutor should be fired and disbarred immediately. He's the absolute last person who should be filing new motions or in any way involved going forward.

Dirty Harry Reid isn't in the picture any more.

Poor poor Harry... it was just three short years ago today that he was beaten up pretty good by that exercise machine band.... and it was all downhill from there for him.

originally posted by: The GUT
Great job once again Boadi.

Thank you!

Definitely should be dismissed with prejudice.

Agreed -- and the prosecutor fired and disbarred. He should have been fired after his first prosecutorial misconduct fiasco and shouldn't even be in this position now.

Speaking of Sessions...seems to be the little bastard is a Swamp critter too. Unless he reforms and starts doing his job and working for the American people, we won't have much use for him back here in Alabama. So far he's an effing disgrace.

Again, agreed. Quite the swamp critter. My best hope is that Trump knows and it's all part of a plan, such as giving him just enough rope to hang himself. But I'm not holding my breath.

a reply to: Boadicea
Great job! I've been trying to catch up on this trial as I was a bit otherwise occupied when the trial was going on. Thanks for more links.

It seems to me that the whole kit & caboodle of them should be fired and prosecuted, prosecutors, investigators and judge. Perhaps Sessions needs to be reminded that Trump wants the swamp drained, not made into a protected area.

Now I'm off to follow these links---Thanks!

Very informative thread. Thanks. I wonder if the prosecutors do this stuff thinking they won't get caught or do they do it knowing they'll be found out but they just want to make things harder on innocent people until they get caught?

a reply to: Blueracer
Well, their intimidation and crooked ways have worked quite well for them up to this point so why would they change? Cliven Bundy is the last of the ranchers in his community. They (various US government agencies) have run off all the ranchers and claimed hundreds of thousands of acres of grazing land. When they ran up on the Bundy bunch, they found a family that actually had the grit to stand against them so they decided to utterly destroy them.

Only seeing these miserable creatures put in handcuffs and waltzed away for a long stint in federal locl-ups (in solitary confinement , like the Bundys) will make me feel a bit better about who is "protecting" our land and who is selling us down the river.

Nice work on the thread!
Sessions is increasingly showing himself to be the useless POC like so many others in the Just "us" department.
He and Mhyre need to go and any cases prosecuted by him reexamined for any Brady violations.
It's sickening to see the way our officials go after convictions like it's some kind of contest.
Frankly, everything the BLM has done over the last 8 years should be looked at as well.
They have become the legal thugs for corporate interests.

originally posted by: diggindirt
a reply to: Boadicea
Great job! I've been trying to catch up on this trial as I was a bit otherwise occupied when the trial was going on. Thanks for more links.

Thank you -- and you're welcome! I know there's a few of us still trying to follow, so I'm just trying to share what I find for those interested.

It seems to me that the whole kit & caboodle of them should be fired and prosecuted, prosecutors, investigators and judge.

You'd sure think so, eh? I don't even know why there would be any doubt... unless those making the decisions have a much different purpose (agenda?) than the rest of us.

Perhaps Sessions needs to be reminded that Trump wants the swamp drained, not made into a protected area.

It seems Sessions needs to be reminded of many many things. I don't trust that guy. At all. Even a cursory look at the circumstances should send up red flags and warrant a little more investigation... and certainly at the very least taking Myhre off the case!!! But he seems to be doubling down on swampiness. I hope the Judge continues to show a little more good sense and fairness and justice. She's been surprising me these last few weeks!

originally posted by: Blueracer
Very informative thread. Thanks. I wonder if the prosecutors do this stuff thinking they won't get caught or do they do it knowing they'll be found out but they just want to make things harder on innocent people until they get caught?

It's a very good question. I think to a certain extent, they felt pretty safe doing it and never being held to account. It's been going on for a long time out in the west and southwest. The head honcho at BLM, Dan Love, sure never thought he'd be held to account. But times are also changing... Dan Love (and his "Kill Book") are out, the whistleblower from the BLM that Myhre had removed from the case found a way to make his complaints known despite Myhre... the judge has sure changed her tune -- even from as little as a month ago.

It's a little too soon for too much optimism, but I am cautiously optimistic that times are changing.

originally posted by: Asktheanimals
Nice work on the thread!

Thanks!

Sessions is increasingly showing himself to be the useless POC like so many others in the Just "us" department.

Yeah, he sure is... I never understood why Trump chose him... either Trump is a swamp creature at heart as well, or it's some kind of trap. As in giving him enough rope to hang himself. The old "keep your friend's close and your enemies closer" so you know exactly what they're doing. I don't know.

He and Mhyre need to go and any cases prosecuted by him reexamined for any Brady violations.

Good point! You know, I'll bet all kinds of lawyers are going to be looking hard at their cases and see what they can find... they now have two precedents against this guy. I hope at some point it becomes impossible for the U.S.attorney's office to keep him. (Since they won't just do the right thing and fire him yesterday)

Frankly, everything the BLM has done over the last 8 years should be looked at as well.
They have become the legal thugs for corporate interests.

You're 1000% right. And it's not a Dem/Pub or left/right thing. They're all quite happy to sell out to the highest bidder -- as long as they're getting part of the take. It's shameful (well, it would be if they had any shame!).

I have no idea if this is good or bad yet, but appparently AG Sessions decided something needed to be done about Vegas and the Bunkerville trial, so Myhre is out and a new U.S. Attorney is in:

Word from Washington Wednesday January 3rd was that Attorney General Jeff Sessions was using his power to appoint 17 interim US Attorneys across the nation.

Sessions has designated Dayle Elieson as Interim US Attorney for the District of Nevada. She will assume that post Friday January 5th meaning that lead Bunkerville prosecutor Steven Myhre, whom Sessions praised profusely during a Las Vegas visit last July for his "leadership" and "standing for the law" among other things, will no longer be Acting US Attorney.

The announcement says that Mr. Myhre will resume his previous role as First Assistant US Attorney when Elieson takes over Friday.

The court will reconvene on Monday, the 8th, with the Judge deciding whether to grant the defense's motion for a dismissal of all charges, or to grant the prosecution's motion for a retrial (the third...). So it would seem that Ms. Elieson will be representing the state at that hearing Monday morning.

It will be very interesting to see where she takes this... and her attitude and approach in general. I'm not making any predictions. It could go either way at this point.

Also, a clarification of sorts... apparently the previous reports (which I posted here) about the U.S. Attorney Steve Myhre being involved in Brady violations were not exactly correct, as Mr. Myhre was NOT on that case when the Brady violations were committed; he was, however, brought in after the violations were discovered to take over the case and handled the mistrial appeal:

Now, Steven Myhre, United States Attorney for the District of Nevada (and doesn’t like to have his picture taken), cannot say that he doesn’t know what the consequences are — or claim that he wasn’t aware of his responsibility, since he was involved in the 2006 United States v. Chapman mistrial. True, he wasn’t involved in that case until 6 months after the Mistrial (contrary to what others have reported) and subsequent Dismissal to the Indictment. He came on board to handle the more ministerial aspects of dealing with the plea agreements and guilty pleas that were based on the then Dismissed Indictment. Each one had to have a Motion, a Response, and an Order, to clear the record — which we fully expect to have happen in the current Bundy case, once the Indictment is Dismissed.

It is possible that since he came on after the fact, that he could argue that he wasn’t fully cognizant of what happened that lead to the Mistrial/Dismissal, if it stopped there.

However, that is not the case. The government sought to appeal the Dismissal to the Ninth Circuit. Steven Myhre was the lead attorney in the Appeal. As such, he would have had to bone up on the entire case so as to be able to argue for the Ninth to overturn the lower court decision to Dismiss. As such, he had to know as much, or more, than the attorneys who had botched the trial case. However, the Ninth rightfully upheld the lower court’s Dismissal of the Indictment.

Source: The Bundy Affair #25 – Steven Myhre and His Fraud upon the Court