Why Cliven Bundy Is Free

The American criminal justice system can be a place of miracles and wonders, as The Arizona Republic illustrates.

Nevada rancher Cliven Bundy, his two sons and a militia member will not face a retrial on charges that they led an armed rebellion against federal agents in 2014. A federal judge on Monday said the federal prosecutors' conduct was "outrageous" and "violated due process rights" of the defendants. U.S. District Court Judge Gloria Navarro dismissed the charges against the four men "with prejudice," meaning they cannot face trial again. She said a new trial would not be sufficient to address the problems in the case and would provide the prosecution with an unfair advantage going forward. The judge criticized both the prosecution and the FBI for not providing evidence to the defense as required under court rules. "The court finds that the universal sense of justice has been violated," Navarro said. Navarro said it was clear the FBI was involved in the prosecution of the case, and that it was not a coincidence that most of the withheld evidence came from the FBI.

Advertisement - Continue Reading Below

So, if you’re going to defy lawful authority and gather some folks to draw down on federal officials, apparently, it helps to be old and white. It also helps when the prosecution botches the rules of evidence beyond all recall.

Navarro on Dec. 20 cited six pieces of evidence the Nevada U.S. Attorney's Office failed to disclose that was favorable to the defense and could have changed the outcome of the trial. The evidence included: records about surveillance at the Bundy ranch; Maps about government surveillance; records about the presence of government snipers; FBI logs about activity at the ranch in the days leading up to the standoff; law-enforcement assessments dating to 2012 that found the Bundys posed no threat, [and]internal affairs reports about misconduct by Bureau of Land Management agents. "Failure to turn over such evidence violates due process," Navarro said last month. "A fair trial at this point is impossible."

There’s no point in worrying what “message” this sends to the various sympathetic (and well-armed) extremist groups in the country. There’s also no point in any thought experiments about what would have happened if Bundy were a black teenager in Ferguson, Missouri, or a black child on a playground in Cleveland.

The prosecution apparently let its loyalty to the FBI override its obligations to due process, and it got caught. From the L.A. Times:

Despite the mistrial, federal prosecutors argued in a legal brief filed Dec. 29 that they didn’t willfully withhold evidence from the defense and they still planned to press ahead with another trial. Assistant U.S. Atty. Steven Myhre wrote in his brief that the government shared 1.5 terabytes of information and noted it was “by far, the largest review and disclosure operation in this [U.S. attorney’s office] history.” Myrhe also argued the government needed to protect some witnesses from leaks that might lead to threats, so it “culled the database with witness protection in mind.” “Unprecedented database volume and witness concerns aside, the government never let these obstacles stand in the way of diligently working to fulfill its discovery obligations,” he wrote. But defense lawyers for Payne — Renee Valadares, Brenda Weksler and Ryan Norwood — argued in their Dec. 29 briefing seeking to dismiss the case that government “failed to accept responsibility for any of its failure to disclose evidence” and the withholding of evidence was “flagrant prosecutorial misconduct.”

Advertisement - Continue Reading Below

There is one king irony to this whole thing: Cliven Bundy and his family and his spavined cattle are all free now because the system he was so hell-bent on defying actually works. I think the cattle will understand this before he does.

A Part of Hearst Digital Media
Esquire participates in various affiliate marketing programs, which means we may get paid commissions on editorially chosen products purchased through our links to retailer sites.