- The Washington Times - Sunday, January 7, 2018

Nevada rancher Cliven Bundy didn’t seem to have much of a chance in his legal battle with the federal government, but he now finds himself with the upper hand entering Monday’s court hearing as the Justice Department’s case against him falls apart.

U.S. District Court Chief Judge Gloria Navarro is slated to consider whether to dismiss the charges against the 2014 Nevada standoff’s ringleaders — Mr. Bundy, his sons Ammon and Ryan, and Ryan Payne — after she declared a mistrial last month over the government’s withholding of evidence.

Federal prosecutors have urged her to allow a retrial, arguing that their failure to turn over evidence to the defense was “regrettable” and “inadvertent,” but that the defendants could still expect to receive a fair trial.

“The government did not withhold material to gain a tactical advantage or harm the defendants,” said then-Acting U.S. Attorney Steven Myhre in a 55-page brief filed Dec. 29. “Rather, it litigated these issues in good faith, arguing that the materials were neither helpful nor material, and provided reasoned explanations for its decisions.”

Even so, Attorney General Jeff Sessions ordered last month an expert review of the case in response to the latest setback for the prosecution, which had already faced an earlier mistrial and hung juries involving low-level participants in the standoff.

The Justice Department announced last week that Mr. Myhre would be replaced by Texas federal prosecutor Dayle Elieson, who took over Friday as Interim U.S. Attorney for Nevada, but indicated that the appointment came because Mr. Myhre’s term had expired.

“Federal prosecutors have been bumbling through the Bundy matter for years with little to show for it,” said the Las Vegas Review-Journal in a Dec. 21 editorial headlined “Another debacle for federal prosecutors in the Cliven Bundy case.”

The defendants have asked the judge to dismiss the 15 charges against them with prejudice, meaning they could not be retried. The charges stem from an armed 2014 standoff between Bundy supporters and Bureau of Land Management agents at the ranch near Bunkerville, Nevada.

The agents had attempted to impound the family’s 300-400 head of cattle in response to Cliven Bundy’s longstanding refusal to pay grazing fees to the BLM in a protest against the federal land-management authority.

The documents withheld from the defense include FBI records regarding surveillance, government snipers, threat-assessment reports indicating that the Bundys were not dangerous, and internal reports about misconduct involving BLM agents.

“The fact that the government sought to ask a jury to convict these defendants and then ask this Court to sentence them to prison for the rest of their lives without giving the defense the information recently disclosed should more than trouble this Court,” said federal public defenders for Mr. Payne in a Dec. 27 brief.

The prosecution’s case suffered another blow last month with the release of an explosive internal memo dated Nov. 27 by BLM investigator Larry Wooten, who accused prosecutors of attempting to cover up misconduct by BLM agents, including “likely policy, ethical and legal violations.”

The 18-page memo said agents referred to the Bundys in derogatory terms, calling them “retards” and “rednecks,” bragged about grinding Dave Bundy’s face into the ground and exhibited bias against Mormons. The Bundy family belongs to the Church of Jesus Christ of Latter-day Saints, whose members are known as Mormons.

Mr. Wooten said he believed he was removed from the investigation in February “to prevent the ethical and proper further disclosure of the severe misconduct … and cover-ups by BLM OLES [Office of Law Enforcement and Security] supervision.

“The 2014 Gold Butte Trespass Cattle Impound was in part a punitive and ego driven expedition by a Senior BLM Law Enforcement Supervisor (former BLM Special-Agent-in-Charge Dan Love),” said Mr. Wooten in the memo to Associate Deputy Attorney General Andrew D. Goldsmith. Mr. Love was fired last year for official misconduct unrelated to the Bundy case.

Judge Navarro said in her Dec. 20 ruling that it would be “impossible” for the defendants to receive a fair trial based on the prosecution’s willful withholding of evidence.

The Monday hearing is set to take place in Las Vegas.

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