Thursday, January 18, 2018

As I have said before, it’s easy for lawyers to cheat. And very tempting. This is a consequence of the great power lawyers have. And it is an issue we must address, both for the sake of the justice system and for the welfare of our souls. Recent events provide another instance of how cheating by prosecutors distorts the justice system.
On December 20, 2017, the United States District Judge for the district of Nevada declared a mistrial in the then-pending case against Cliven Bundy and three others. The charges the men faced were conspiracy and assault, arising out of an armed confrontation with federal agents over control of public lands, which Mr. Bundy and his cohorts reject. The government indicated it wanted to retry Mr. Bundy and his co-defendants. But on January 8, 2018, the district judge granted the defense motion to dismiss the case with prejudice, meaning that it cannot be retried. Mr. Bundy, who had been in custody, was released.
"The court finds that the universal sense of justice has been violated," Judge Gloria Navarro said. The violation was the failure of the government to fulfill its obligation to provide information in its possession that was relevant to the defense. The government admitted it had omitted information; the prosecutor said that he “culled the database with witness protection in mind” because he thought leaks of information might lead to threats against witnesses. The trial judge called this a “reckless disregard for Constitutional obligations.”
The misconduct came to light when Larry Wooten, an investigator for the U.S. Bureau of Land Management who had been assigned to investigate the events surrounding the confrontation between the Bundys and the federal agents. Mr. Wooten says that he was removed from the investigation after he complained to the U.S. Attorney about government misconduct. You can read his memo here. Wooten memo.If you don’t want to go through the whole 18 pages, a good summary is here. Oregon Live Among other things, he says, “As the investigation went on, it became clear to me that my supervisor wasn’t keeping the U.S. Attorney’s Office up to date on substantive and exculpatory case findings and unacceptable bias indications.” Of course, one of the responsibilities of a prosecutor is to disclose to the defense any exculpatory evidence in his or her possession. And the prosecutor is held accountable for any such information in the possession of anyone on the prosecution team, whether the prosecutor is aware of the information or not.
To their credit, the prosecutors disclosed Mr. Wooten’s memo to the defense. The motion to dismiss followed. The government has 60 days from the date of dismissal to appeal; it has taken no action as of the posting of this article.
But the damage to the justice system has been done. Here’s the way the National Review sees it:
In April 2014, America was transfixed by an armed standoff in the Nevada desert. On one side was a collection of dangerous, out-of-control armed men who were deliberately provocative, prone to saying unhinged things in a single-minded quest to destroy their enemies, and who lied time and again to cover their misdeeds. On the other side was Cliven Bundy.
Mr. Wooten points out that he is no fan of the Bundys. Nor is the National Review: “He broke the law. He defied the government without any legal justification, and his own conduct helped precipitate a crisis that could have led to a horrible tragedy. Bundy was wrong.”
Why does this happen? As a former prosecutor, I can attest that prosecutors do not all have horns and pitchforks; they are not, simply, evil. Two causes come to mind. The first is ego. The prosecutor wants to win his or her case, and if skirting the rules can safely be done to make it easier, then the prosecutor will do it. In a case I read recently that was reversed for a Missouri discovery violation, the prosecutor explained his failure to disclose jailhouse statements by the defendant until just before trial by saying, “If we disclose [the jailhouse recordings] to the defense, they’ll tell their client. And I’m not impugning anyone’s integrity, I’d do the same thing: Hey, they’re listening to your conversations, shut up. So we don’t disclose them until towards the end.”[1]
The second reason arises from the desire to fulfill the prosecutor’s obligation to enforce the law, to protect the public from the likes of the Bundys. The prosecutor in the Bundy said that he wanted to protect witnesses, and therefore limited his disclosures. Protection of witnesses is certainly a legitimate concern, but it cannot be used to justify flaunting rules intended to insure that the defendant receives a fair trial. The government is held to a higher standard. When the justice system itself cheats, it loses its status as a protector of justice.

[1] State v. Johnson, 513 S.W.3d 360, 365 (Mo. App. 2016).