Sometimes the system works

Let me first begin this post with the clear statement that I do not support one side or the other in the fight I describe below and I am not providing the history that led up to this or rendering any opinion on it.  I was struck by the fact that on the day of the College Football Championship game in Atlanta, something in a Nevada courtroom occurred which is extremely important in our justice system.  Although Judges can’t really pick sides in a case, they are humans and make mistakes.  Because they (and jurors) are the guardians of the rule of law, we need for them to be able to set aside personal prejudices and to do what is right, regardless of whether they like the party who benefits or not.    In practice and fact though, this is an enormously hard thing for humans to do.  It takes COURAGE.

To make my point, I will share this new development with you from a federal criminal case in Utah.  A rancher, Cliven Bundy,  (and others) had been in an old decades long fight over grazing rights on federal land that many considered to be state land.  Eventually, federal criminal charges were brought against the rancher and his sons.   The entire history has been very controversial, but that is not important.

On March 10, 2016, Bundy also filed a lawsuit against Judge Gloria Navarro, Senator Harry Reid, Reid’s son Rory, and President Barack Obama, alleging a number of conspiracy theories and describing the judge as a “Latino activist.”[52][53] A day later, Bundy’s lawyer attempted to serve the judge with the lawsuit during a detention hearing, demanding that the judge recuse herself from the proceedings because she was now involved in a legal conflict with Bundy. The motion was quickly denied, but the judge gave Bundy’s lawyer until May 25 to make a case as to whether her previous work as a prosecutor in Clark County, Nevada merited any recusal.[54] On May 25, Judge Navarro denied Bundy’s motion for her recusal from the case, and ruled that he would not be granted bail due to factors including:[55]

His history of ignoring federal laws and court orders.

The number of supporters willing to act as “armed bodyguards”.

The chance that he would flee from arrest or fail to report for court appearances as ordered.

The potential for violence by his supporters, constituting a danger to the community.

On October 17, 2016, Bundy dismissed his lawsuit against Navarro, President Obama, and the Reids.[58]

On December 21, a mistrial was declared, in part, due to prosecutorial misconduct, including failure to release Brady material. BLM Special Agent Larry Wooten was fired for objecting to the abuses of the standoff and the investigation. He was removed from the investigation and his papers confiscated. He created the following linked document from memory and became a whistleblower.

Then on January 8, 2018, the unthinkable happened:

Charges against rancher Cliven Bundy, three others are dismissed

By Steve Kurtz

Published January 08, 2018  (and I am not pushing Fox News, its just that they were the first to report this)

A federal judge dismissed all charges against Nevada rancher Cliven Bundy, his two sons and another man on Monday after accusing prosecutors of willfully withholding evidence from Bundy’s lawyers.

U.S. District Judge Gloria Navarro cited “flagrant prosecutorial misconduct” in her decision to dismiss all charges against the Nevada rancher and three others.

“The court finds that the universal sense of justice has been violated,” Navarro said.

“Either the government lied or [it’s actions were] so grossly negligent as to be tantamount to lying.”

– Judge Andrew Napolitano

On Dec. 20, Navarro declared a mistrial in the high-profile Bundy case. It was only the latest, stunning development in the saga of the Nevada rancher, who led a tense, armed standoff with federal officials trying to take over his land. The clash served as a public repudiation of the federal government.

The Brady rule, named after the landmark 1963 Supreme Court case known as Brady vs. Maryland, holds that failure to disclose such evidence violates a defendant’s right to due process.

“In this case the failures to comply with Brady were exquisite, extraordinary,” said Fox News legal analyst Judge Andrew Napolitano. “The judge exercised tremendous patience.”

The 71-year-old Bundy’s battle with the federal government eventually led to what became known as the Bundy standoff of 2014. But it began long before that.


To many, Bundy is a folk hero who stood up to the federal government  (Associated Press)

In the early 1990s, the U.S. government limited grazing rights on federal lands in order to protect the desert tortoise habitat. In 1993, Bundy, in protest, refused to renew his permit for cattle grazing, and continued grazing his livestock on these public lands. He didn’t recognize the authority of the Bureau of Land Management (BLM) over the sovereign state of Nevada.

The federal courts sided with the BLM, and Bundy didn’t seem to have a legal leg to stand on. Nevertheless, the rancher and the government continued this dispute for 20 years, and Bundy ended up owing over $1 million in fees and fines.

Things came to a head in 2014, when officials planned to capture and impound cattle trespassing on government land. Protesters, many armed, tried to block the authorities, which led to a standoff. For a time, they even shut down a portion of I-15, the main interstate highway running through Southern Nevada.

Tensions escalated until officials, fearing for the general safety, announced they would return Bundy’s cattle and suspend the roundup.

Afterward, Bundy continued to graze his cattle and not pay fees. He and his fellow protesters were heroes to some, but criminals to the federal government. Bundy, along with others seen as leaders of the standoff, including sons Ammon and Ryan and militia member Ryan Payne, were charged with numerous felonies, including conspiracy, assault on a federal officer and using a firearm in a violent crime. They faced many years in prison.

The Bundy case finally went to trial last October. But just two months later, it ended with Navarro angry, the feds humiliated and Bundy – at least to his supporters – vindicated.

Navarro had suspended the trial earlier and warned of a mistrial when prosecutors released information after a discovery deadline. Overall, the government was late in handing over more than 3,300 pages of documents. Further, some defense requests for information that ultimately came to light had been ridiculed by prosecutors as “fantastical” and a “fishing expedition.”

“Either the government lied or [its actions were] so grossly negligent as to be tantamount to lying,” Napolitano said. “This happened over and over again.”

Navarro said Monday it was clear the FBI was involved in the prosecution and it was not a coincidence that most of the evidence that was held back – which would have worked in Bundy’s favor – came from the FBI, AZCentral reported.

The newspaper said after the courtroom doors opened following Navarro’s ruling, a huge cheer went up from a crowd of spectators that had gathered outside.

Fox News’ Greg Norman contributed to this report.


Judge Navarro is a hero in my book. She got it right.   Even if Bundy and sons were in fact guilty (and I have no idea there), Judge Navarro was somehow able to put aside her own personal prejudices.  She had been personally sued by this man and he had basically said that her race made her be prejudiced against him.  Faced with repeated governmental misconduct, Judge Navarro said  “enough is enough!”.  She wasn’t going to let the government steamroll a man and his family and supporters by withholding evidence and violation basic constitutional rights to due process.  Since she is a federal judge, appointed by the President and approved by the Senate, by all expectations, she would naturally side with the government in most disputes.  But, she upheld the law.  The law is more important than any one man, because it protects all of us.

This is not a civil case, which is what I do. However, I have done lots of criminal cases on my career.  In a civil case a Judge has lots of ways that they can help or hurt a party.  Judges have “discretion” in certain matters and largely control what happens at trial.  They can favor one side or the other without doing anything that will get them in trouble.  At times, however, I have seen Judges in civil cases bend over backwards to make sure both sides get a fair trial.  Judges have a lot of power to punish litigants (and lawyers) that behave badly.  I have had Judges to exercise courage on the level of Judge Navarro, without fear of consequences.  Those moments make me proud to call myself a lawyer.   Without Judges like that though, our individual rights mean nothing.   “We the people” are supposed to have the power to control governmental abuses, but it takes courageous judges in order to help us do that.

Find a brave Judge today and hug them.  Tell them you are proud of them and thank them for their service.   They have a tough job to do.

Until next time, May we treat each other the way we would like to be treated ourselves.