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John L. Smith Says The Bundys Will Likely Not Be Retried

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Jeff Scheid/The Nevada Independent

From left, Carol Bundy, Cliven Bundy's Wife, Ammon Bundy, Ryan Payne, Jeanette Finicum, widow of Robert "LaVoy" Finicum, Ryan Bundy, Angela Bundy, wife of Ryan Bundy walk out of a federal courthouse Wednesday, Dec. 20, 2017, in Las Vegas.

Wednesday, Judge Gloria Navarro reconvened the trial of Cliven, Ammon and Ryan Bundy and their co-defendant Ryan Payne.

An hour later, after carefully laying out her decision, she declared a mistrial.

There were four key pieces that Judge Navarro mentioned. John L. Smith was in the courtroom.

1) Prosecutors didn’t disclose records about surveillance and snipers at the Bundy Ranch

"The Bundys have contended from the start that they believe that they were in danger that they saw snipers on the hillside outside their ranch and prosecution laughed that off. They said there was no surveillance initially and then they said there certainly were no snipers. As it turned out FBI 302s revealed that: One - there was surveillance certainly and two - the people who maintained the surveillance camera were armed SWAT team members from the FBI.... So, it is conceivable that the Bundys would have felt in danger."

2) They didn’t disclose unredacted FBI logs about government activity during the standoff.

"The logs relate to how the FBI surveillance agents essentially recorded what they were watching. The camera was not a still camera. It was a video camera. They monitored it from a trailer at the command post. That was a key element."

3) They didn't disclose threat assessments about the Bundy’s dating back to 2012, that essentially said the family was all bark, no bite.

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"They are basically intelligent reports in 2012 done by the FBI Joint Terrorism Task Force at different levels. There were multiple reports. They all indicated that the Bundys - although 'they might get in your face' having to do with their cattle and their rights and their Constitution - that they weren't dangerous. They weren't dangerous. That counters the indictments contention that the Bundys were dangerous."

4) They didn't disclose an internal affairs reports about the BLM that deeply criticized the operation at the Bundy ranch in 2014.

"She did not elaborate on that report but she did allude to the report and some of its findings. There was a moment in court when one of the documents that she talked about had to with whether the desert tortoises were actually endangered by the presence of cattle around them. And there seems to be contention around that. 

What it goes to is the testimony of a BLM official who talked of one reason why you limit the range for the cows during a certain time of the year is because the tortoises are having their babies. It is one of was one of the moments in the trial that might have turned to nothing except for the defense is trying to impeach a witness and trying to say that the witness is either misleading the court or is ignorant."

"[Judge Navarro] did however say she wasn't vouching for the facts she was saying that the documents themselves would have been helpful to the defense during the jury selection."

Kaufman: Is there going to be a retrial?

Smith: I spoke briefly with acting U.S. Attorney Steven Myhre. Myhre said that he and his team are meeting later this week and they are going to discuss that issue. He didn't have any further comment.

The defense attorneys I spoke with... they all said they did not believe there would be another trial. They believed that the judge's ruling was so damaging to the indictment that there probably wouldn't be a retrial. However, they're preparing for one. A new trial date has been set for the last day of February 2018.

Kaufman: What was the reaction from the Bundys?

The Bundys were clearly not just relieved but they felt bolstered by the judge's decision and the determination that the hiding of the evidence was willful by the prosecution. That was a pretty good slap at the prosecution. They took great note of it. 

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John L. Smith, contributor

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