On December 23, I wrote about the dismissal of the cases against Cliven Bundy and his band of Angry White Men with Guns.
Today US District Court Judge Gloria Navarro decided that the US Government violated Brady to such an extent that the only cure was for a dismissal with prejudice.
And so it goes, Cliven Bundy and his band of unmerry men have, once again, gotten away with their criminal acts - this time thanks to federal prosecutors screwing the pooch and withholding potentially exculpatory material from the defense.
There is no question that Bundy and his boys occupied federal lands, with weapons, despite orders to vacate the premises. There is also no question that this is part of an effort among wingnuts to privatize federal lands out west for the benefit of a few.
There is also no question that what happened in this case happens in criminal cases all across this country every day of the week. This one turned out differently because a disenchanted federal witness testified about the evidence that was withheld. And that's not what ordinarily happens.
As defense attorneys we have no idea what evidence the government has generated. We only have access to that evidence prosecutors turn over to us and that evidence that we subpoena because we have a feeling that something might not be right.
The problem is that if no one turns it over and the defense doesn't know it exists, there's no consequence for withholding it. And with the sheer number of cases that end up with a plea agreement because the defendant can't post bail or otherwise get out of jail after being arrested, there isn't time to dig deep enough to find out what hasn't been produced.
While today's decision is a win for the rule of law, it is also further evidence that we have a two-tiered justice system - one for those who can afford it and another for those who can't.
The Bundys fell in the former, most of our clients fall in the latter.