Unlawful Suppression of Evidence Results in Mistrial

A mistrial has been declared in the case against Nevada rancher Cliven Bundy after it was determined the prosecution was guilty of unlawful suppression of evidence, a violation of Bundy’s constitutional rights.

Rancher vs the feds

Photo by: Gage Skidmore

Cliven Bundy is a cattle Rancher residing in Clark County Nevada with ties to many local families throughout southern Utah. Bundy has been in a long-standing disagreement with the federal government over the right to have his cattle graze on public land, which is family had been doing for generations. The feds wanted to require a permit and collect yearly grazing fees plus arrears while Bundy claimed requiring a fee for use of the land was erroneous since the land belonged to the state. Over twenty years of debating this right ended when the BLM closed off over 140,000 acres of land and confiscated any trespassing livestock found roaming within the off-limits acreage. Bundy along with friends and family protested the capture of the cattle and after heated negotiations regained control of the livestock. Bundy continued his family traditions of grazing his cattle on public lands.

Arrested on federal charges

Almost two years after the Nevada cattle standoff, Bundy travelled to Oregon where his sons and others had taken over control of a vacant ranger station at the Malheur National Wildlife Refuge in support of two local ranchers charged with federal arson while protecting their property. On route to that scene however, Bundy was apprehended at the airport and arrested on multiple federal charges related to the Nevada Cattle Standoff. Some of the charges include conspiracy, assault on a federal officer, threatening an officer, as well as firearms charges. His sons and another individual were also arrested for their involvement in both the Nevada and Oregon standoffs. The Bundy sons and others involved in the Oregon standoff went to trial for that incident and were acquitted by a jury of all federal charges. They still faced charges for their involvement in Nevada alongside their father Cliven Bundy. This court experience in Nevada turned out to be very different from the one in Oregon however.

Unlawful Suppression of evidence

Photo by: Allen Allen

During the court proceedings for the Bundy clan in Nevada, the defense discovered multiple items of crucial evidence obtained by the prosecution had been withheld. Suppression of evidence is defined as when a party in a trial unlawfully withholds evidence that could be useful in exonerating the defendant(s) in the case. Some of the evidence items withheld from the defense included video surveillance of Cliven Bundy’s home as well as confirmation on the presence of snipers surrounding the Nevada cattle incident, increasing tensions. The feds denied allegations of unlawful suppression of evidence until proof emerged and they were forced to recant their omissions, claiming their careless handling of evidence was not intentional. The defense, not satisfied that the federal government could make numerous “honest” evidence mistakes in a federal trial claimed six violations to the Brady Rule. The judge agreed and declared a mistrial due to unlawful suppression of evidence or a violation of due process which is a constitutional right.

The Brady Rule

The Bundy family and another man were released on all charges thanks to the 1963 Brady v. Maryland case which was monumental in ensuring all exculpatory evidence, or evidence that might be helpful to the defense, is shared by prosecutors. In the case of Brady, prosecutors had obtained a written confession to a murder by another individual, yet suppressed that evidence and tried Brady of the murder as well. Once the courts realized there was evidence that could have exonerated the defendant of murder charges, they declared his due process rights had been violated and thus the Brady Rule was born. The Brady Rule ensures the due process law protected by the Fifth and Fourteenth Amendments to the Constitution are withheld and that no state of federal government shall “deprive any person of life, liberty, or property, without due process of law”. Due process is defined as by the United States Courts as “the constitutional guarantee that a defendant will receive a fair and impartial trial.” Anyone who feels they are facing a trial with an unfair advantage due to due process violations should consult with a criminal defense attorney who will ensure all evidence vital to one’s defense is unveiled..

Reduce the Risk of Additional Charges Following an Arrest

When someone is placed under arrest, they are booked under specific charges pertaining to that arrest. Just as the individuals arrested can fight to have charges reduced or dropped, there is also the chance that extra charges can be added following the arrest.

Failure to comply with arrest and booking

Photo by: Campaign Against Arms Trade

One main cause of added charges following an arrest is due to the behavior of the alleged offender during the time of being arrested and placed behind bars. Being handcuffed and whisked off to jail is a stressful moment that can unfortunately bring out the worst in people. Some individuals make a bad situation worse by:

• Resisting arrest or as Utah Code 76-8-305 states “refusing to perform any act required by lawful order necessary to effect the arrest or detention (…) made by a peace officer”, a class B misdemeanor;
• Attempting to flee police, a class A misdemeanor;
Spitting, urinating, or propelling any bodily fluid at an officer, potentially adding a third degree felony onto the list of charges;
• Physically assaulting an officer while in the custody of law enforcement, a third degree felony defined by section 76-5-102.5. If the charges are enhanced to aggravated assault by a prisoner, then the defendant may face an additional second or first degree felony as stated in 76-5-103.5; or
• Once at the local jail, kicking, punching, or otherwise damaging jail property, resulting in an added third degree felony.

Regardless of whether or not the arrestee feels they should be taken into police custody, they are encouraged to be respectful and cooperative during and after being read their Miranda rights. This does not mean they have to converse with officers regarding details of the arrest however, as that in itself can lead to added charges.

Spilling all the beans

Photo by: Emilio Küffer

While there are some who react vehemently to being placed under arrest, there are others who go too far the other direction by trying to be overly compliant to officers on the scene. In an effort to possibly smooth things over, some arrestees decide to share every single detail related to the charges. Not only can their over-the-top candor cement the charges against that individual, it can help investigators who may already be trying to tie other charges to the defendant. It is best to politely decline any discussion with officers until an attorney is present.

Accumulating charges prior to trial

Another way charges can be added is if more evidence comes to light or if the prosecution attempts to add or enhance charges. For example, if a person is arrested for possession of marijuana, the prosecution could look at the amount of marijuana in question, and attempt to call it enough to charge the defendant with intent to distribute, even if it was initially determined to be only for personal use. If the person drove through a school zone with the marijuana in their car, the prosecution could also add enhanced possession in a school zone charges. Maybe they had kids in the home or car, so by all means throw in some child abuse or child neglect charges on top. Also known as stacking charges, this is a common occurrence and a reason so many individuals get scared into accepting plea deals (a.k.a. pleading guilty to lesser charges) without first obtaining proper counsel for themselves.

Have an attorney ready

Photo by: Kevin Johnston

With so many variables working against someone following an arrest, the best plan to avoid additional charges is to:

• remain calm;
• be prepared with the name of a reputable attorney;
• give the defense attorney’s name to authorities during the arrest;
• Stay quiet until advised otherwise by counsel; and finally
• Trust that a knowledgeable attorney will be able to see through charge stacking to decide the best option possible for each defendant depending on their specific case.

Invoking Fifth Amendment Rights Involves Speaking After All

Prior to an arrest, the arrestee is read their Miranda rights which state they have the right to remain silent; however invoking their Fifth Amendment Rights prior to an arrest may actually involve speaking after all.

Cooperate without self-incrimination

Photo by: Cristian V.

When an individual is facing legal trouble, it is common for that person to either:

• Cooperate and communicate fully with law enforcement, often offering more information than they should, or
• Clam up, refusing to say a word because they have the “right to remain silent”, right?

Unfortunately, there is a fine line that persons facing arrest must tread between cooperating with police and protecting their Fifth Amendment Rights against self-incrimination. Although everyone has the right to remain silent, that doesn’t always mean it’s the best choice to be a stone wall. Complete silence could be seen as insubordination or even guilt. So when should a person remain silent and how can they do so without causing rifts with law enforcement?

Miranda Warning

The Miranda Warning is given to everyone prior to arrest and acknowledges the arrestee’s right to remain silent and to obtain counsel before being questioned. Once the Miranda Warning is read, it is wise to keep quiet until legal counsel is there to assist in the interrogation. What about the sometimes lengthy time before being arrested? What if an individual isn’t actually being arrested, just questioned?

Questioning or interrogation

If an individual is facing questioning from law enforcement without an attorney present and they feel wary about answering any questions, they can politely ask police if they are being arrested or if they are free to go. If they are not being arrested, then they have no legal obligation to stay and answer questions from officers on scene. If officers state that they are being arrested or detained, that is when the individuals should have the Miranda Warning read to them. If the questions persist without a warning given, the arrestee should then invoke their right to remain silent, by verbally informing officers they:

• Are invoking their Fifth Amendment Rights (or Miranda Rights);
• Wish to remain silent; or
• Would like their attorney present.

According to the United States Supreme Court in Davis v. United States, “If the suspect invokes that right at any time, the police must immediately cease questioning him until an attorney is present.” Once a person has invoked their Fifth Amendment Right to remain silent, they are encouraged to contact a reputable criminal defense attorney to be present in all future interrogations.