Criminal Justice

When Government Can't Take 'Not Guilty' For an Answer

The feds are engaged in an extended grudge match against western dissidents, without regard for the cost to justice or the taxpayers.

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"The federal government is all about keeping the status quo," attorney Jess Marchese tells me. "They're not going to cede power."

I had asked Marchese, who represents Eric Parker in legal proceedings resulting from the 2014 Bundy ranch standoff over control of western lands, why he thought the federal government was taking yet another crack at his client who, along with codefendant O. Scott Drexler, will face the third trial in a row on a diminishing set of charges. The Las Vegas lawyer's take was that this had become a matter of pride for both the federal government and for Acting U.S. Attorney Steven W. Myhre after juries repeatedly frustrated federal prosecutors.

A mistrial was declared in April by U.S. District Court Judge Gloria Navarro after two of the six defendants in that trial were convicted on lesser charges, while jurors voted 10-2 in favor of acquitting two and split on the others, according to news reports. Just last week, jurors returned not a single "guilty" verdict in the retrial of the four remaining defendants. Found "not guilty" on all charges, Richard Lovelien of Oklahoma and Steven Stewart of Idaho were released after the federal government failed twice in its efforts to send them to prison. That left two defendants in limbo after the charges against them resulted in hung juries. Again.

With regard to Parker and Drexler, "how close was the jury to reaching verdicts on the unresolved charges?" I asked Marchese.

"There was one holdout," he told me, obviously frustrated. That is, the jury voted 11-1 to acquit across the board. That one holdout allows the federal government to muster the resources of the federal government to try yet again in hopes that a third set of jurors will finally believe the government and convict Parker and Drexler of assaulting a federal officer and carrying a firearm in the commission of a crime and (in the case of Parker) two additional counts of using a firearm to threaten a federal officer.

The pending third trial is scheduled for September, though an appeal by Marchese may delay matters (and will likely nudge the pending trial of Cliven, Ammon, and Ryan Bundy even further into the future). That penciled-in date is remarkable when you consider that federal juries are traditionally almost rubber stamps for prosecutors.

"The rate of conviction remained over 90 percent, as it has since Fiscal Year 2001," the United States Attorneys' Statistical Report boasted in 2012. A year later, the report noted that conviction rates had crept over 92 percent since 2010.

So it has to be frustrating both institutionally, for the federal government, and on an individual level for prosecutors to be turned away, again and again, by jurors unimpressed by the government's case, or sympathetic to defendants.

Jurors did much the same in a related case last year when they acquitted Ammon Bundy, Ryan Bundy, and five codefendants of charges resulting from the takeover of the Malheur National Wildlife Refuge. That unexpected verdict was attributed by some to jury nullification and by many others to juror reaction to overreaching federal prosecution.

"It should be known that all 12 jurors felt that this verdict was a statement regarding the various failures of the prosecution to prove 'conspiracy' in the count itself—and not any form of affirmation of the defense's various beliefs, actions or aspirations," one of the actual jurors told The Oregonian.

Ironically, the Malheur takeover started as a protest against an earlier exercise in prosecutorial excess in another case involving dispute over control of western lands.

Overreaching by the government may have played a similar role in the latest trial. Judge Navarro threw Parker off the stand—ironically, right after he mentioned the First Amendment—cutting short his testimony in his own defense and even striking it from the record. Even before that point, the judge "barred the defense from referencing constitutional rights to freely assemble and to bear arms. She also prohibited mention of alleged misconduct or excessive force by law enforcement," reported the Las Vegas Review-Journal.

According to Marchese, who spoke to jurors after the trial, Judge Navarro's heavy-handed courtroom management played a major role in the jury's refusal to bring a single "guilty" verdict. Defending the status quo, refusing to cede power, the feds pushed too hard and had their anticipated victory stripped from them by offended representatives of the people in the courtroom.

And as with federal conduct of these trials overall, so it is with the behavior of Acting U.S. Attorney Steven W. Myhre.

"He's taking it personally," Marchese says of his federal counterpart's performance in the courtroom. "He started name-calling against my client in court."

"There's nothing more dangerous than a coward with a weapon," Myhre said of Parker in an argument that drew gasps in the courtroom and that may have helped to convince 11 members of the jury to favor acquittal. (The Justice Department did not respond to a request for comment.)

In fact, it's hard to escape the conclusion that these trials have become extended grudge matches by the federal government and its employees against people challenging their authority in general, and westerners pushing back over control of public lands in particular. Independent of these armed protests, Utah and other states are increasingly pushing Washington, D.C. to surrender control over the vast reaches of land that are often arbitrarily managed and regulated to the detriment of local residents. "The armed occupation of federal buildings is inexcusable, but so are federal land-management abuses and prosecutorial overreach, the Wall Street Journal editorialized last year.

That has federal employees' panties in a bunch.

"Parts of the Sagebrush West are beginning to resemble Eastern Ukraine," complained Jeff Ruch, Executive Director of Public Employees for Environmental Responsibility, in a press release regarding the Bundy ranch conflict.

Well, that's… ridiculous.

But if you're accustomed to always getting your way, and you suddenly discover that you're resented and resisted by many of the people around you, even a little pushback can drive you into a panic.

Marchese tells me that, if this was a civil trial and Myhre faced the prospect of paying defendants' legal fees after yet another loss, he might act more reasonably. But I don't know. Grudge matches are, by definition, unreasonable. And no matter what the ultimate cost, the feds can't seem to bring themselves to take "not guilty" for an answer.

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55 responses to “When Government Can't Take 'Not Guilty' For an Answer

  1. As with appeals court verdicts, so with jury verdicts. If you can’t unanimously decide something, then that in itself means the case was not proved beyond a reasonable doubt. Whether it’s evidence and testimony, the finer details of a contract, or the constitutionality of a law, when learned judges can’t decide, how the heck are ordinary people supposed to show better judgement and follow the law? No, that’s prima facie evidence of a confusing, vague, or otherwise defective law or rule or contract, and it should be thrown out altogether.

    A jury is supposed to be 12 jurors agreeing unanimously on someone’s guilt. I don’t care if it’s one holdout for guilt or one holdout for innocence — that’s not a mistrial, it’s a clear demonstration that the case was weak. There should be no retrial — the verdict is in. You’ve had your chance, you lost, now go away and sulk.

    1. Unfortunately, people want to keep that sweet, weet conviction rate high. Not just the law, but people themselves seem impressed by it. Hopefully that attitude is changing, and people won’t accept that a conviction was necessarily valid.

  2. I don’t care about the Bundys in the least, but I wonder…how many people on the left talking about how pardoning Joe Arpaio shows no respect for the rule of law also believe that the Bundys shouldn’t be tried more than once (not respecting the original court’s ruling).

    I can’t stand Arpaio either, I just notice cognitive dissonance and holier-than-thou bullshit when I see it.

    In this case, I haven’t seen it yet.

    1. You can say that again!
      God bless out little squirrels.

    2. Seems that both cases are representative of the same problem. The law can be very lenient on you depending on, you know, certain factors. Whether you drive a big truck, I think.

  3. I don’t care about the Bundys in the least, but I wonder…how many people on the left talking about how pardoning Joe Arpaio shows no respect for the rule of law also believe that the Bundys shouldn’t be tried more than once (not respecting the original court’s ruling).

    I can’t stand Arpaio either, I just notice cognitive dissonance and holier-than-thou bullshit when I see it.

    In this case, I haven’t seen it yet.

  4. This is why jury trials that end in anything but a guilty verdict should be dismissed forever.

    Conviction requires unanimous verdicts but it is an abuse of power to require a unanimous not guilty verdict. If the jury does not return a guilty verdict, clearly there is reasonable doubt to convict.

    1. Sadly, some states don’t even require a unanimous verdict in all cases. Both Louisiana and Oregon allow criminal convictions with only 10 out of 12 voting guilty.

      I am a big fan of the Scottish system, in which jurors have three possible verdicts: guilty, not guilty, and not proven. The not proven verdict is nice because it places the blame for an “undeserved” acquittal right where it belongs.

      1. I like that. It would likely lead to fewer convictions, as it gives people an opportunity to say “I think he did it, but they didn’t prove their case”. Currently, I think in all too many cases they go with “I think he did it, so I’m voting guilty”, even if there is scant evidence.

        I’m reminded of the Little Rascals preschool case from the moral panic of the 80’s/90s. The Frontline series on the case had jurors parading before their camera, one after the other. They asked “do you believe he did X”, where X was one of the specific acts he was charged with. Every time they said “no”. Each and every allegation, they believed was not true.

        But they voted to convict. When asked why, one juror summed it up perfectly: “There was just so much…. we thought we had to convict…. to protect the children”.

        So he got life without parole. Even though every single juror though every single charge was false. But there were lots and lots and lots of charges…. so they convicted anyway.

        1. That is why persecutors load up the charges! ‘He must be guilty of some of this’. The Little Rascal inquisition taught nothing and that DA is still in office. The millions the convicted victims got doesn’t even remove the non-existent ‘sex offender’ from their files. They lost everything because of persecution lies.

  5. Now THIS is how you get around double jeopardy. Along with various overlapping statues that can be independently tried or even stacked, it’s a guarantee that you’ll be found guilty it just might take a decade of trials to get there.

    1. As long as those overlapping statues aren’t of confederate generals…

    2. Or they can just bleed you into bankruptcy. Most people of less than decent wealth would be wiped out by a lengthy federal trial. Three? That’d wipe out even some fairly wealthy folks.

      Taking a third bite at the apple means you are a dick. A fourth bite is beyond the pale.

  6. so you folks think it’s perfectly ok to point loaded weapons at police officers?
    Is that only if you’re white and in a cowboy hat?

    1. Of course not. It doesn’t have to be a cowboy hat.

      1. Yeah?.some of those guys were wearing baseball caps.

    2. Let’s keep trying them until we get the conviction, I say. There are rules against double-jeopardy, but I’ve never read anything in the constitution about triple or quadruple jeopardy. Think about it.

    3. What, exactly, do you intend to imply by using the term you folks, Netizen_James?

      There is also this: As Unicorn and fish pointed out to your question Is that only if you’re white and in a cowboy hat? – not all of the law enforcement officers were wearing cowboy hats.

        1. Reynolds. Is that some sort of Jew name?

    4. I don’t think anyone here was on the jury, Jimmy.

      1. That is, the jury voted 11-1 to acquit across the board. That one holdout allows the federal government to muster the resources of the federal government to try yet again in hopes that a third set of jurors will finally believe the government and convict Parker and Drexler of assaulting a federal officer and carrying a firearm in the commission of a crime and (in the case of Parker) two additional counts of using a firearm to threaten a federal officer.

        My guess: Jimmy was the lone juror.

    5. so you folks think it’s perfectly ok to point loaded weapons at police officers?

      I’ll take that over just assuming they’re guilty because the government says so.

    6. You don’t even have to be white!

    7. so you folks think it’s perfectly ok to point loaded weapons at police officers?

      Your idea of ‘perfectly ok’ involves active-duty police officers on the scene?

    8. I do, they don’t. Take your chances.

  7. It’s the principle of the thang, Smokey! There are principalities in this!

  8. Quick question, how many people died during the takeover, who was killed and who did the killing?

    1. Also, how many shots were fired and who did the shooting?

  9. Judge Navarro threw Parker off the stand?ironically, right after he mentioned the First Amendment?cutting short his testimony in his own defense and even striking it from the record. Even before that point, the judge “barred the defense from referencing constitutional rights to freely assemble and to bear arms. She also prohibited mention of alleged misconduct or excessive force by law enforcement,” reported the Las Vegas Review-Journal.

    IOW, she did everything in her power to make it impossible to mount a defense, and they still couldn’t get a guilty verdict.

    1. IOW, she did everything in her power to make it impossible to mount a defense, and they still couldn’t get a guilty verdict.

      Perhaps I am somewhat more cynical than you today, CA. Looking deeper, I thought of the followig angle:

      As Judge Navarro is female, this is yet another clear case of the rampant misogyny sweeping over our country.

      She was simply attempting to level the playing field against the Privileged Cis-Gendered Male Chauvinists arrayed against her and Madam Justice.

      1. She didn’t like the way those Privileged Cis-Gendered Male Chauvinists were eye-banging Madame Justice with their MALE GAZE and decided to take them down a peg, but THE PATRIARCHY reared its ugly head yet again!

        1. I think you’ve got it.

    2. The Lord is a God who avenges.
      O God who avenges, shine forth.
      Rise up, Judge of the earth;
      pay back to the proud what they deserve.
      How long, Lord, will the wicked,
      how long will the wicked be jubilant?
      They pour out arrogant words;
      all the evildoers are full of boasting.
      They crush your people, Lord;
      they oppress your inheritance.
      They slay the widow and the foreigner;
      they murder the fatherless.
      They say, “The Lord does not see;
      the God of Jacob takes no notice.”
      Take notice, you senseless ones among the people;
      you fools, when will you become wise?
      Does he who fashioned the ear not hear?
      Does he who formed the eye not see?
      Does he who disciplines nations not punish?
      Does he who teaches mankind lack knowledge?
      The Lord knows all human plans;
      he knows that they are futile.

      Judgment will again be founded on righteousness,
      and all the upright in heart will follow it.
      Who will rise up for me against the wicked?
      Who will take a stand for me against evildoers?

      Can a corrupt throne be allied with you?
      a throne that brings on misery by its decrees?
      The wicked band together against the righteous
      and condemn the innocent to death.
      But the Lord has become my fortress,
      and my God the rock in whom I take refuge.
      He will repay them for their sins
      and destroy them for their wickedness;
      the Lord our God will destroy them.
      (Most of Psalm 94)

    3. Reminds me of…

      While Obama could not legally seek a third term, his hand-picked proxy Hillary Clinton, about whom he proclaimed “I can say with confidence there has never been a man or a woman, not me, not Bill, nobody more qualified than Hillary Clinton to serve as president of the United States of America.” dropped the election to a problem-riddled political rookie who was denounced by many in his own party!

      Before the election Mr. Obama had campaigned more for Democrat Hillary Clinton than any modern sitting president had for his party’s nominee.

      Hillary outspent Trump by about 4:1.

      The MSM was 100% against Trump and 100% in the bag for Sec. Clinton.

      And Trump is perhaps the most vilified person (and not without cause) ever to run for the office.

      And she still couldn’t muster the win?

  10. So it has to be frustrating both institutionally, for the federal government, and on an individual level for prosecutors…

    Hey JD, I get how prosecutors might get frustrated by losing a case, but please to explain exactly how an institution gets frustrated.

    1. but please to explain exactly how an institution gets frustrated.

      The whole or the controlling members of the institution won’t let bygones be bygones.

  11. “There’s nothing more dangerous than a coward with a weapon,” [said Acting U.S. Attorney Steven W. Myhre.]

    Said the guy wielding prison terms as a cudgel, and immune from civil damage actions.

    1. CCC-
      I need a like button for that comment.

  12. Overreaching by the government may have played a similar role in the latest trial. Judge Navarro threw Parker off the stand?ironically, right after he mentioned the First Amendment?cutting short his testimony in his own defense and even striking it from the record. Even before that point, the judge “barred the defense from referencing constitutional rights to freely assemble and to bear arms. She also prohibited mention of alleged misconduct or excessive force by law enforcement,” reported the Las Vegas Review-Journal.

    According to Marchese, who spoke to jurors after the trial, Judge Navarro’s heavy-handed courtroom management played a major role in the jury’s refusal to bring a single “guilty” verdict. Defending the status quo, refusing to cede power, the feds pushed too hard and had their anticipated victory stripped from them by offended representatives of the people in the courtroom

    That is beautiful.

  13. The government has eschewed their hot Cosby strategy, and instead is pursuing the little-used slow Cosby* strategy.

    *In Canada that’s called love.

    1. Cosby’s love is not like a square’s love.

      1. “I haven’t played 7 Minutes in Heaven since 1989… Bill Cosby didn’t know i switched the soups.”

  14. …the feds pushed too hard and had their anticipated victory stripped from them by offended representatives of the people in the courtroom.

    If only more people recognized their time in the jury box as much a check on power as anything else.

    1. If only more people were interested in checking government power.

      1. I keep trying. And every time I have been called since 1983 I have gone down to the courthouse and sat in an uncomfortable juror’s room for a whole day, never once sitting for a trial.

        The one trial I was selected for (in 1983) was to be a two week tort. After opening arguments it became abundantly clear that the plaintiff had no chance. Later that day they called us in to say thanks, but there’s been a settlement. I was kinda pissed. Three days i sat there listening to all their inane wrangling, and we didn’t get to weigh in.

        I still wonder why they settled …. must have been for a minimal amount, unless their opening argument was a fantasy. The plaintiff basically said they had no recollection of what happened, beyond maybe seeing a red truck. And the defense said they had records proving none of their trucks was in the area…. not even within a week either side of the accident. Seemed like a slam dunk.

  15. its oaky when Unions and OWS occupy government buildings but when a bunch of “right winger gun nuts” do it the last straw.

  16. A hung jury is not not guilty.

  17. Let’s keep trying them until we get the conviction, I say. There are rules against double-jeopardy, but I’ve never read anything in the constitution about triple or quadruple jeopardy. Think about it.
    My recent post: Commission Sniper Review
    Sent from http://flashreviewz.com/

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