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..

Prosecutorial Misconduct

Just how not every person charged with a crime is guilty, not every attorney prosecuting a case is innocent. Some may do whatever it takes to ensure a conviction, even if their ways of obtaining a guilty verdict are unethical or even illegal. When this occurs, it is known as prosecutorial misconduct.

Dropped Charges

Photo by: Clyde Robinson

On Monday November 6, 2017 federal prosecutors gave up their fight to indict former Utah Transit Authority board member Terry Diehl on felony charges stemming from allegations that he failed to disclose assets when he filed bankruptcy in 2012. Originally, prosecutors had 14 felonies stacked up against Diehl but the charges slowly dwindled away after the prosecution was found to have been misleading, incapable of doing simple math, as well as unable to produce factual evidence to support the charges. Not having much left to work with, prosecutors dropped the case entirely. Although many Utah residents disagree with the apparent crooked way Diehl operated business, he still has Constitutional rights to a fair trial. The prosecution should have been honest in the way they handled the case.

Prosecutorial misconduct

When a prosecuting attorney breaks the law or behaves unethically during a case in order to ensure a conviction, this is known as prosecutorial misconduct. Some illegal or immoral activities in which prosecutors have been involved in include:

• Not sharing exculpatory evidence. Exculpatory evidence is evidence that could be helpful to the defendant but not necessarily the prosecution. In Brady v. Maryland (1963), John Leo Brady was convicted for murder because the prosecution had not disclosed that they had obtained a written confession from another man involved. Although Brady appealed and was later charged with his actual role in the crime, the U.S. Supreme Court ruled that from then on, the prosecution was not allowed to withhold exculpatory evidence again.

• Falsifying evidence. This includes any evidence that has been altered or fabricated. In the case of Terry Diehl, it was reported that the prosecution falsified evidence by trying to use a tax document with a forged signature of Diehl.

• Tampering with or intimidating witnesses. Sometimes the testimony of a witness is enough to throw a case in favor if the defendant. In People v. Warren (1978) a key witness was unsure about testifying in his friend’s behalf for fear of self-incriminating himself for the crime instead. Through a “barrage of cautionary questioning”, the prosecution essentially scared the defense’s witness into taking his Fifth Amendment rights to protect himself. The Prosecution was said to have “crossed the line separating proper advisement from intimidation”.

• Discriminating potential members of a jury. According to the United States Courts, in Batson v. Kentucky (1986) “the prosecutor used his peremptory challenges to remove all four African Americans from the jury pool.” The Court ruled that “while a defendant is not entitled to have a jury completely or partially composed of people of his own race, the state is not permitted to use its peremptory challenges to automatically exclude potential members of the jury because of their race.”

These and other methods of prosecutorial misconduct put the defendant at an unfair disadvantage during their court proceedings at the hands of the prosecution who is there to serve the people, not their tally of guilty verdicts.

Servant of the law

Prosecuting attorneys are upheld to a greater code of conduct than other attorneys as they are appointed by, and represent the State or the Nation. As noted by the U.S. Supreme Court in Berger v. United States (1935), the prosecuting attorney is “a servant of the law”. They also add that “while [the prosecuting attorney] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.” With the position of trust that prosecutors hold, they should perform their duties honorably, favoring justice over a guilty verdict. A qualified defense attorney will be able to recognize dishonest snares put in place by the prosecution and be diligent in ensuring the case is handled fairly.

Sixth Amendment Rights Regarding Criminal Proceedings

The Sixth Amendment entitles defendants to specific rights regarding criminal proceedings which they should be privy to prior to their court hearings.

Sixth Amendment to the United States Constitution

Sixth Amendment

Photo by: Phil Roeder

The Sixth Amendment to the United States Constitution is a segment of the Bill of Rights which was presented into the Constitution in 1789 and reads: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.” The Sixth Amendment gives protection to defendants during criminal proceedings and should be understood completely to ensure the rights of the accused are not being violated.

Speedy and public trial

Speedy. Criminal proceedings can often take days and even weeks to conclude; however defendants should not spend an excess amount of time incarcerated prior to these proceedings, especially if they have not been released on bail. This also makes sure the availability of any witnesses for the defense or prosecution.

Public. Defendants have the right to a public trial; No criminal proceedings should be done in secret. This not only protects the defendant from hidden corruption within the system, it allows the public including family and friends of the defendant to observe the trial and observe that it is carried out justly. This likewise permits the media to be present and report on the case as it transpires. The defendant may waive this right if desired or access to the proceedings may be limited by the courts to guard a defendant’s right to a fair trial or to protect a witness from coercion.

Impartial jury

Photo by: J

Photo by: J

All defendants have the right to an impartial jury. This is ensured through the jury selection process. Jury selection is first done randomly from a pool of registered voters in the area. After the original jury pool, the defense and prosecution are able to question possible jury members at which point they have the opportunity to object to any person they feel would not be able to be impartial to the case. Some scenarios in which a jury member would be challenged are: when they have a personal relationship or association with the accused; if they have biases or preconceptions for or against the defendant; if their opinion on the type of crime in question is unwavering; or just for the reason that either the prosecution or defense chooses not to have them on the jury.

Informed on charges

This may seem obvious, but the Sixth Amendments protects the rights of defendants to be informed on the charges that they are facing and “the nature and cause of the accusation”. If a defendant is unaware as to why they were arrested or facing trial, they would be less likely to prepare adequately for their defense.

Confrontation clause

Photo by: Khmer Rouge Tribunal (ECCC)

Photo by: Khmer Rouge Tribunal (ECCC)

The confrontation clause protects the defendant’s right to confront those accusing them of a crime. This allows the accused the opportunity to face and cross examine the witnesses who are making allegations, giving the defendant ample opportunity to debate the accusations against them. The Fourteenth Amendment to the Constitution gave even further rights to the defendant by ensuring that the confrontation clause would be applicable in federal AND state courts. There are some instances when confrontation is not permitted, such as when the witness is a child and their testimony is not recorded in court, but done prior to the proceedings.

Defense counsel and witnesses

The final rights stated in the Sixth Amendment ensure that the accused has the right to obtain witnesses who are “in his favor” as well as an attorney to defend him/her. The compulsory process clause allows the accused the right to have witnesses speak on their behalf to aid in attesting to their innocence or poke holes in the case. These defense witnesses may even be issued a subpoena, ordering them to appear in court. Regarding defense counsel, if the accused is in good mental health they may waive their right to counsel if they choose. All defendants however are allowed to seek a reliable defense attorney of their choosing or have an attorney appointed to them by the court. It is recommended for anyone facing charges to always seek out an experienced criminal defense attorney to guarantee that no constitutional rights are violated and that all the protections of the law are provided.