Nevada rancher Cliven Bundy and several of his sons walked free from a courtroom in 2017 after spending nearly two years in jail.
It stemmed from a tense standoff between the Bureau of Land Management and Bundy supporters in 2014.
District Court Judge Gloria Navarro threw out the case, citing prosecutorial misconduct, and the Bundys walked free.
Now, the feds are trying to revive the case.
On Friday, the Ninth U.S, Circuit Court of Appeals heard oral arguments from federal prosecutors trying to overturn that dismissal in 2017.
KNPR Contributor John L Smith has covered the Bundy case since the beginning. He said after Judge Navarro's strongly-worded rebuke of prosecutors he was doubtful that the case would ever make it back to court
“She spoke in absolutely in no uncertain terms that the universal sense of justice was violated that the due process was shattered by the failure of the prosecution to produce a handful of documents associated with key elements of the defense,” Smith said.
While doubtful at first, after the oral arguments, Smith thinks the federal government might have a shot.
“It seemed an impossibility at the beginning, but by the end of it, I heard judges listening to arguments on both sides,” he said.
Arguing for the defense was nationally known right-wing lawyer Larry Klayman. Klayman argued that Judge Navarro had made the right call, to begin with, but he also started to position himself in case the 9th Circuit does send the case back.
He brought up the Bureau of Land Management whistleblower Larry Wooten. Wooten wrote a scathing memo outlining bias against the Bundy family by the BLM. Wooten didn't testify and the memo wasn't admitted in court.
“However, this is a really damaging memo and Klayman as been talking about it at every turn,” Smith said.
He believes Klayman is trying to get in a position to have "all the ammo" that he can muster if the decision goes against the Bundys.
On the government side, Elizabeth White emphasized the volume of material the prosecution had for the case.
“There was a mountain of documents that were provided. There were essentially eight documents that were not provided and a couple that appear to be concealed,” Smith said.
While there were only eight documents that weren't turned over to the defense, the documents were key to the defense. The documents show that snipers were set up at the standoff between the BLM and the Bundys.
Smith said White also made a smart move by admitting the original prosecutors made mistakes. She told the judges that they weren't trying to hide anything.
“Mistakes were made and that does not add up to the judge’s determination that the due process rights were so badly violated that the case could never be tried again,” he said.
Smith said White made a strong argument.
He also noted that anyone waiting for a quick decision by the court will be disappointed. The 9th Circuit is known for being one of the slowest, if not the slowest, court in the country.
“I do believe that the appealing prosecutor made a strong case for the reality that so many documents were turned over that these that weren’t, it doesn’t rise to that aggreges level that Judge Navarro said it did,” Smith said.
He tends to think the appeals court will send the case back with some modifications but they may also decide that this six-year-long saga has gone on long enough.
John L Smith, KNPR Contributor