Friday, December 2, 2016

Pretrial Publicity - Attorneys Talking to the Press: Narcissism or winning legal tactic?

It’s more fun to discuss legal issues in the context of a case study. At least for me it’s easier to remember the lessons from something concrete. Consequently, we will look at pretrial publicity (PTP) through the lens of the Ammon Bundy “Oregon Standoff” case.  

But first let me summarize the ethical rules on attorney pretrial publicity, at least in Oregon: Don’t lie, don’t do it as the jury is walking into the courthouse, don’t lie. 

Why talk to the media at all? What’s the point other than to toot your own horn?

When to Comment to the Media – Steps to Deciding

Question 1: Does it help the client?  Is it in their best interests? 
The goal is not to just see your name in in the newspaper or to hear your soundbite on the radio or TV.  The goal is not, legally speaking, to make your client “feel good,” although that might be the client’s goal, which may or may not help the case. Nonetheless, the attorney’s goal is to do what is best for the case. And I will get back to that point in a moment.

After you decide it’s in the best interest of the case/client to speak to the press, you determine and draft your talking points and labels (terms that you want to stick out there).  Then you need to look at what you intend to say and ask other questions.

Question 2: Is it true?

This is so important for a number or reasons.  First, you are selling credibility as a lawyer. Credibility to the jury, judge and opposing counsel.  Credibility to your potential clients wanting to hire you and credibility to other attorneys referring you cases.  And of course, there’s an ethical rule aside from the pretrial publicity rule that prevents attorneys from lying.  Rule 4.1 says you shall not knowingly make a false statement to others.

Rule 4.1 Truthfulness in Statements to OthersIn the course of representing a client a lawyer shall not knowingly:(a) make a false statement of material fact or law to a third person; or(b) fail to disclose a material fact when disclosure is necessary to avoid assisting an illegal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.

Question 3: Will you always be able to stand by what you said? Will you ever have to retract it? 

The internet is forever and it’s hard to retract credibly, unless you are the president-elect. This is especially important for statements made before discovery has been received.  There are many good reasons for making a statement at such time, which is probably the most important time to speak publicly, but there are risks.  The risks are that you might end up being wrong and it makes you and your client look bad.  

Consequently, you have to be very sure. For instance, in the Gerald Strebendt case, I avoided mentioning many of the positive things about the shooting incident because I was unsure if it would be proven or disproven later. I believed my client, but I didn’t trust his memory 100%. This dilemma is discussed in detail in the book Finishing Machine: Was it Road Rage Murder or Self-Defense? A Trained Killer's Fight for Justice (True Crime Defense Attorney Case Files Book 1) . Therefore, the last thing you want to do doing is retracting.

Question 4: Does the client consent? 

Before your comment, make sure you have the client’s permission after giving him the costs and benefits. Cover some worst-case scenarios for publicly revealing this along with potential benefits. An oral agreement is fine, but follow up with a confirming letter even days later if you are time crunched. Write, for example, the following: “This confirms our conversation yesterday where you instructed me to comment to the media about your potential defenses and to respond to media inquiries on your behalf at my discretion.”

Why talk to the press at all? What’s the point

Recall that the first question you asked yourself before making a statement was, “Does this help the client?” Well, can it?

First you need to determine your strategic objections, which hopefully you have been doing with your client from the first day of representation.  Generally, your strategic objective in every case is whatever your client’s goal is.  It could be a dismissal or a not-guilty verdict, or maybe just a deal he can live with. 

Typically, the client wants a dismissal first, a plea deal they can live with (minimizing adverse consequences), or a not-guilty verdict.  This is based on risk vs. benefit analysis.  Pretrial publicity can help achieve any of these things. 

Using pretrial publicity to encourage settlement is a way make their decision of trial more difficult than their decision to settle with terms you can live with. 

Political pressures on decision-makers (i.e., DA). 

This is higher-level strategy issue that is best left to you on a case-by-case or more importantly a jurisdiction-by-jurisdiction basis.  Some DA’s offices hate to lose and the ADA’s actually have the risk of getting fired if they are not politically protected in the right office clique.  Lane County, Oregon, has traditionally been an example of that.
Other jurisdictions could care less and would rather a jury make all the tough decisions, i.e., Washington County, Oregon tries a lot of cases and loses a lot of trials. They will try anything there and don’t mind losing. 
If you don’t know if your DA responds to political pressure, i.e., public scrutiny, give it a try and check out the result.  All DA’s and people in general want to look good.

How does this help or hurt my next client? Or, don’t crap where you eat. 

You need to redefine the culture of what it means to be a lawyer and reset the rules.  This is just another tool. Be indignant about it.  But be polite.  And don’t personally attack others (attack their decisions and actions sometimes) and you will be fine.  Don’t be cowardly. You represent this client now. 

Reversing negative publicity that can affect your jury pool – Source Confusion

This is the most nuanced and most important factor in my opinion.

Dan Reisberg’s book, The Science of Perception and Memory: A Pragmatic Guide to the Justice System, covers the psychological literature on the factors relevant to this decision.  You should get the eBook form or get the print edition. It’s a big help. And, it will save you some time from calling Dr. Reisberg to see if he can help on a change of venue or other expert issues (confirmation bias, etc.)
The most important to reason to talk early and often is to inoculate your client against juror source confusion.

“These errors are examples of source confusion because, in each case, the person is correct in recalling that a particular bit of information was somehow part of his or her past but then is confused about the source of the information—and so recalls it as part of the original event when, in fact, the information came into the person’s experience via some other route.”
Reisberg, Daniel, Professor. The Science of Perception and Memory: A Pragmatic Guide to the Justice System (Page 70). Oxford University Press. Kindle Edition.

Witness ID issues (basis of case law in the ground-breaking Lawson case).

Source confusion of a jury, discussed below, is the same memory error that we see in witness misidentification cases.  According to Reisberg, “In each case, the person is correct in recalling that a particular bit of information was somehow part of his or her past but then is confused about the source of the information—and so recalls it as part of the original event when, in fact, the information came into the person’s experience via some other route.”

Source confusion: confusion about who said what – The Honsowitz effect

Problems arise when a remark by one person is misattributed to another.  This is very dangerous in a trial.  This is called the "Honsowitz Effect."

The late Eugene, Oregon, attorney Bill Honsowitz once had a trial with our office where he asked these annoying leading and accusatory questions to our client where she denied every single one of them.  He would ask, “Isn’t it true that you only fed the kids suckers and candy for dinner?”
Answer: “No, that’s not true.” 

He would ignore the answer and continue: “Isn’t it true that you did this in front of witnesses.”
Answer: “No.”

Then, in the judge’s findings of fact, he actually adopted the statements made by the attorney and misattributed it to a witness that never materialized. It was fixed in the findings of fact but it didn’t change the judgment.  We lost.  That client lost.  She lost custody on a very thin record of mainly accusations. 

Now, imagine this in a jury setting.  They get back there in deliberations and they can’t remember if the info came from a question, an answer, or something they recall from months earlier. Perhaps a question refreshed a recollection that was never proven up but they now take as fact.  But it’s source confusion.  They don’t know that they’ve mixed up the result.  It’s unconscious and not deliberate. 
Reisberg’s conclusion (backed by social science research) is that pretrial publicity results in source confusion. 

“The research here is straightforward: Jurors are exposed to PTP, then to a trial, and then questioned about which pieces of information came from which source. In these studies, source confusion has been observed in individuals’ recollection of real trials in which they have served as jurors and also observed in research participants’ recollection of simulated trials. In the data, source confusion is evident even when the information in the PTP was inaccurate (as sometimes it is) or if the information would have been inadmissible if it had been presented in trial.”
Reisberg, Daniel, Professor. The Science of Perception and Memory: A Pragmatic Guide to the Justice System 

Other factors increasing source confusion (or at least not alleviating it).

1. Complex cases

Sources confusion is more likely when trial is long and complex, which are typically the types of cases that have the most PTP.

2. Older PTP is the problem

Do continuances help?  Source confusion happens even if PTP was a long time ago.  The passage of time actually makes it more difficult to do the internal bookkeeping of recalling where they got their information.  In essence PTP effects grow stronger if there is a delay between the presentation of the PTP and trial. 

3. Deliberations can compound source confusion.

Deliberations don’t fix it.  The jurors who do the fact “correcting” in deliberations are often the ones most confident about their memories because, possibly, they are most imbedded due to source confusion.  Remember, it’s not intentional.  It’s a confusion of the source. 

PTP source confusion remedies:

1. Continuance: doesn’t work as stated.

2. Cautionary instructions: They don’t work.  “Don’t think of an elephant” is an impossible instruction to follow. The social science research on that is called “Reactance Theory” and can be found here.  The reason the instructions don’t work is because source confusion is indeed confusion about the source so they don’t know to disregard it. 

3. Voir dire Promise not to consider PTP: they can’t deliver on the promise because they are confused on the source.

Confirmation bias: PTP also increases that

Confirmation bias is the theory that we are more likely to notice and/or accept evidence consistent with our views, particularly if views were established due to the PTP.  Basically, the narrative that is set early on is filtering out unfavorable evidence.

Remedies: there aren’t many since this is an emotional response that is automatic and unconscious.

What about voir dire: The Skillman v. United States Enron case essentially says that you can always fix pretrial publicity in voir dire by just getting a lot of jurors and asking a lot of questions. 
My theory is that that’s easier in large metro areas because what is important gets drowned out by other publicity. The smaller the county and the more notorious the crime, the more effect PTP. 

Change of Venue is the only remedy: who has filed a change of venue? Who has won one?  Not many.  If it’s an unlikely or impossible solution, what else can be done?

My theory is: Inoculate the jury prospectively and reduce the chances of source confusion by giving the other side to the story.

Other Reasons for Pretrial Publicity (Crowdsourcing and Getting witnesses to contact you):

It turns out that people are more willing to contact you if your narrative is something not distasteful to them. In essence, they are more likely to inconvenience themselves by affirmatively reaching out if you have a defense or some other equity that favors your client that they know about.

(Photo: A volunteer attempts to contact witnesses in a murder case.)

Consequences for the attorney: What will happen if you do this?  (You need a thick skin)

Lots of calls: from witnesses; from people complaining.
Be prepared to have the office handle calls. Have procedures in place.

Lots of attacks: people will rush to criticize everything. Keep in mind this is the vocal minority and most people passively internalize media and don’t get all fired up. Remember that 5.9% of the population has borderline personality disorder.  6.2% have narcissistic personality disorder.  And 3% of men and 1% of women have anti-social personality disorder.  10% have borderline plus narcissistic.  And, most importantly, these broken people make up 90% (my made-up statistic) of those that feel compelled to comment on the internet (trolls). 

Dealing with them on social media: Facebook and Twitter is a blessing and a curse.  You can’t do most media campaigns without them and you can’t control very easily the trolls from trying to take away from your message or disparage your law firm.  To counter this, you can set certain automatic restrictions on curse words and other buzz words important to your case to keep the social media review labor time to a minimum.  This is really only an issue in a nationally important case. 

Bar complaints: The ultimate in trolling a lawyer is a frivolous bar complaint, which can be done in a matter of seconds anonymously in Oregon. It takes time and/or money to respond and can be very stressful.  Hence the propriety of spending more money on someone like Peter Jarvis. If you are going to be handling these sorts of cases, have someone on retainer and have a canned media response ready to go.  And don’t sweat it.

Ammon Bundy’s Case as a Case Study in Challenging Media Bias (and thus inoculating from source confusion)

The news coverage of the Malheur refuge occupation before the arrests was very negative.  The media was calling them militants and extremists, as well as calling them “protesters.”  The ratio of good words versus bad words (extremists/militants) was about even in the media: 1:1 to 1.5:1
But on the internet in general it was 3:1, positive to negative. 

Immediately after the arraignment, Lissa Casey and I went on the courthouse steps to begin to change the narrative. We were offering a pure “political protester” and “little guy vs. big bad government” narrative.  We hired a media consultant to help define the issues and the message.  My position has always been that the “Patriot Movement” needs a PR expert.  They appeared very bad at it.  They were good at energizing their supporters but weren’t doing a very good job of making their message relevant to the public (i.e., their jury pool). 

In the hours and day following the arrest, the Bundy case coverage was roughly even protester vs. Extremist/Militant, meaning it got slightly worse for our client right after the arrest. 
The month after me publicly calling him a protester every day in press conferences and personally establishing relationships with reporters, editors, and producers that this was a political case had some anecdotal results.  Several major media players agreed to challenge their narrative a little more and began doing more open-minded coverage. In other words, they only print what they are fed, so we started to feed them lots and lots about the protester and David vs. Goliath narratives.  I noticed the press started asking me questions about the “protesters” more than before.

By the first month into the case, the media narrative started to change favorable.  The media was now calling them protesters 3-1 over negative terms.  However, the internet support dropped from 3:1 to 2:1

Media was 3 to 1.  That’s triple the positive coverage.

The Internet support (proportionally) dropped dramatically immediately after from 3:1 to 2:1, meaning the vocal minority in the public where posting more negative things than positive about the protesters online. 

Then we got some momentum.  We starting getting our client statements out and he started doing interviews.  That had a great impact in the press calling him positive things because they were presenting his and my own words.  We had a media consultant fly in to assist with these initial news conferences and we rebranded. 

In that month while he was a “hot commodity” in the press, we were able to get 4-1 positive to negative descriptors about our client, while the public still was steady at 2-1.

Then it leveled out to 3:1 for news and stayed consistently 2:1 for the public. 

(Graph: Note the jump in positive coverage after arrest, which peaked in the midst of the media blitz, bottomed out mid summer and then leveled back out just before trial, continuing steady even after the acquittal.)

Conclusions to be drawn

I have no idea what impact if any our media plan had, since correlation is not causation.  However, I do know this: It’s not often that news coverage gets better for a client after his arrest.

Remember that Dr. Reisberg says that the initial coverage is what sticks with people the longest.  So by a month or so into the case, our work was pretty much done and the narrative had been effectively reframed. 

Click here for a sample media policy.

Tuesday, August 30, 2016

Why LaVoy Finicum's Shooting & FBI Cover-up May be Relevant to Conspiracy Defense: Did the Government Act in Bad Faith?

In the Malheur protest case, the evidence lost from the scene of the shooting of LaVoy Finicum and the arrest of the protesters is irreplaceable and taints the reliability of the entire investigation that is not remedied by merely being pointed out to a jury, which the court has ruled cannot even be done. The decision by the court to preclude the evidence of the shooting of Finicum may not at this point be error reversible on appeal, as the record created by the defendants may be insufficient for her to have made the determination correctly.
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In the alternative to dismissal, a defendant could request exclusion of all post-shooting evidence to level the playing field and address this egregious due process violation.  Unfortunately, because the government has selectively released information to the public while attempting to use the Court’s power for a protective order to gag the defendants, they selectively released a video with their chosen narrative.  They did so while knowing that they were releasing information about an FBI cover-up, but chose, suspiciously, to not include that in their explanation, which was a thinly veiled attempt to vilify Mr. Finicum, the very man they killed.

Why have guns at a political protest? Is it reasonable in light of perceived prior FBI overreach at Waco, Ruby Ridge, & Bundy Ranch?

This is an interesting a question that a jury should potentially be tasked to answer.  However, it is unclear if any defendant is raising the issue at this point according to a government memorandum that said, "Defendants have not formally provided notice that they are seeking a self-defense instruction."  

The argument is essentially this: Since the conclusion of the occupation, the protesters have been arguing that through their effectiveness at marshaling First and Second Amendment protections, they frustrated and lawfully provoked their government  - and they did so by exercising statutory and constitutional rights - in their most pristine and classic forms. However, it appears the executive branch of government didn't tolerate it.  Reportedly, the FBI caused the protest to escalate due to the FBI’s interference with the First Amendment right to petition representatives in a redress of grievances.  It has been reported that the FBI told certain elected officials not to respond to any of the petitions regarding the Hammonds, including the official Notice of Redress of Grievances.  The FBI reportedly interfered with and stopped this process of a republican form of government, an important safety valve in a constitutional republic, causing additional frustration in the protesters and activists. 
FBI agents in Burns
(Jim Urquhart/Reuters)
In contrast to the astute (albeit novel) peaceful protest at the refuge, prior to the ambush, the FBI began their show of force during the FBI’s militaristic occupation of Burns, Oregon and Harney County. They built up a military-like presence by taking over the local airfield.  They carried guns around town in tactical positions, intimidating locals and attempting to put the protesters in fear of imminent deadly force, purportedly in hopes of provoking them to respond when an ambush was eventually employed. 

The Death of LaVoy Finicum

The evidence indicates that just hours before Mr. Bundy, his colleague LaVoy Finicum, and others were to give a public presentation on land rights topics to hundreds of Oregon supporters who had gathered in neighboring Grant County, Oregon government officials concluded, as Senator Ron Wyden phrased it, that the “virus” of this particular political speech “was spreading” and there “had to be consequences.”  Apparently, included in the “consequences” sought by the government was using deadly force on fellow protesters and an 18-year old girl who had never threatened anyone as they rounded a corner and approached a “deadman’s roadblock,” a roadblock with serious risk that a collision is inevitable due to line of sight and other attendant circumstances.  Effectively, the agents of the government made up their mind to fire at the protesters after they rounded the corner sending a fairly explicit message as to the perceived intentions of the government.

These shots were fired after agents acknowledged that there were women in the car, as heard on Ryan Bundy’s cell phone recording.  The agents also knew that their ambush blockade was impenetrable due to the size of the vehicles, their positioning, and the snowbanks flanking their position, rendering deadly force unreasonable and unnecessary.  But, nonetheless, they positioned officers behind the collision zone either out of carelessness or to give an excuse to shoot at anyone who approached this impenetrable blockade at a high speed.
FBI Agent hidden in collision zone

Less-than-lethal rounds
The “deadman’s roadblock” was in fact employed and at least one vehicle was shot at while stopped (purportedly with a less-than-lethal round which to the occupants would have been indiscernible to a lethal round).  Possibly believing that they were likely facing imminent deadly force, Finicum sought to turn himself in to a county law enforcement officer who he believed could protect their personal safety, given what he knew about government force in protest situations, In his mind and the others in the truck, was the killing of Randy Weaver’s wife while holding their infant son at Ruby Ridge, the burning of the Branch Davidian compound at Waco, killing women and children, and the government’s purported sniper positions during the Bundy Ranch protest).

Here's the thing: the reports of government overreach in the past doesn't even have to be true to be relevant to someone's state of mind in possessing firearms at a protest or driving away from a police stop. It just has to be reasonable for them to believe it.  And whether it's reasonable to believe the stories and photos about the Bundy Ranch's government snipers (pictured above) is for the jury to decide. 
"Here's the thing: the reports of government overreach in the past doesn't even have to be true to be relevant to someone's state of mind in possessing firearms at a protest or driving away from a police stop."
I myself, while touring the Bundy Ranch earlier this year, heard terrifying firsthand accounts from women with children alone on back roads having sniper guns leveled at them. It's likely that Finicum and others heard the same stories which affected their state of mind at the protest and at the arrest. And evidence of their subjective state of mind at the protest is their reaction to the government ambush. Furthermore, evidence of the government's response and cover-up is evidence of the objective reasonableness of such belief. In effect, it's a subsequent "bad act" relevant under FRE 404. 
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Was it reasonable to believe that they were at grave risk given the circumstances? Was it reasonable for them to believe that, with the backdrop of Waco, Ruby Ridge, and Bundy Ranch, and the fact that they had been available for arrest when in public, something was amiss when they were approached on a vacant highway far away from help and out of cell phone range?   Lavoy Finicum even announced where they were heading and invited the federal agents to follow.  However, his fear turned out to be prophetic as the ambush was waiting for them. Inexplicably, agents of the government shot at the vehicle, using unlawful deadly force, and then saying the magic words of “fear,” “imminence,” and “training and experience” to law enforcement investigating the death.  Agents of the government still tried to spin the narrative as they covered up their use of deadly force by hiding bullet casings that would show the truth, which may be a constitutional Due Process violation as described below.
Fire at Branch Davidian Compound in Waco

Investigating the Investigators

Not knowing that there was an active cover-up of evidence in this case, after the shooting, I requested in open court to have an investigator present while the FBI was processing the evidence.  The Government replied, by breathtakingly citing Youngblood and saying that “[h]ere, defendants have proffered nothing to establish that the FBI ERT personnel are not processing the scene meticulously and collecting the physical evidence using their best efforts and with the utmost good faith.”  Government’s Second Response to Defendants’ Motions for Site Access, p. 4.  The Government went on to argue that “Defendant Ammon Bundy complains that without his requested order he will ‘be forced to depend on the good will and diligence of State actors’ to do their job properly…as if that is anything but the normal and well-settled practice in criminal matters.”

The Government argued this to the court, as FBI agents were under investigation for a cover-up where a political protester was killed by his government.  The cognitive dissonance it must take to make such an assertion to the court in these circumstances is astounding and is likely due to agents not properly notifying the US Attorney’s office of the ongoing constitutional violations and cover-up investigations.  As more information later came out, it showed that the protesters were right to suspect the government that killed their friend and then attempted to cover up what happened afterwards. 
"Not knowing that there was an active cover-up of evidence in this case, after the shooting, I requested in open court to have an investigator present while the FBI was processing the evidence."
In response to my request, the Court determined that any prejudice was speculative given the representations by the government. The Court was not candidly informed that there were already allegations of an FBI cover-up for unknown reasons (i.e., the FBI, DOJ and the deadly force investigators may have hidden the cover-up from the US Attorney’s Office). The facts of this cover-up, the FBI Hostage Rescue Team’s (HRT) place in the chain-of-command, the evidence affected, who directed the lack of body cameras, etc. should have been fleshed out in the evidentiary hearing, as these facts are actually relevant and important to the case as set forth below.

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Notwithstanding the repeated use of deadly force by the government, it is an impressive fact that no force was ever used and no firearms were ever fired by any protester prior to the ambush. They never even lifted or pointed a gun or held a gun in intimidation, as the FBI was routinely doing in Burns.  In fact, the evidence shows that it was Ammon Bundy’s leadership that helped keep things peaceful, along with several others like his brother Ryan Bundy who stayed calm and peaceful in the back of LaVoy Finicum’s pick-up, with multiple weapons at his disposal, and who did not return fire during a hailstorm of bullets and the ultimate killing Mr. Finicum.  Ryan Bundy possibly faced unlawful force by the agents of the government and ironically may have entirely within his rights to defend himself with deadly force given State v. Oliphant, 221 Or App 384 (2008), if he reasonably believed unlawful deadly force was being used against him (i.e., the shooting at the moving vehicle after rounding the corner and not knowing that prior and subsequent shots were less-than-lethal rounds.)
One firearm found in Finicum's pickup.
Given that restraint and the absolute peacefulness of this protest, it is appalling that the government resorted to violence and death which were clear Fourth Amendment violations.  See Tennessee v. Garner, 471 U.S. 1 (1985). However, this case could potentially be put to rest via dismissal due to the gross Due Process violations that have occurred on video and other yet-to-be-explored constitutional violations for which video was not fortunate enough to be present due to the likely deliberate choices of the agents who failed to wear body cameras or activate their in-car videos or who destroyed video footage.
There are screen shots of agents who appear to be wearing head cameras although they could be audio equipment (by ABC News video).
ABC News Video Screenshot

Why is Finicum Shooting Relevant to the Conspiracy Case?

The destruction of evidence of the killing of a government protester is the epitome of a Due Process violation that strikes at the very heart of what processes are due to a citizen. The plot for the ambush and decisions leading up to this are clearly relevant to bias and motive to fabricate and the killing of a defense witness and the destruction of evidence illustrated that bias on the part of the Federal Government.  The FBI HRT marksmen “missed” when firing at LaVoy Finicum for one of three possible reasons: they missed (1) by accident and contrary to their marksmen training; (2) on purpose to provoke a protester to return fire justifying use of deadly force against them; or (3) to provoke OSP to fire on the protesters. These issues and more illustrate Due Process violations linked to the destruction of evidence and should be explored in the evidentiary hearing before trial and possibly at trial before the jury.

The Case Law on Destruction of Evidence

I.               The killing of a defense witness and the destruction of evidence by the FBI Hostage Rescue Team may be a violation of constitutional Due Process rights.  

            The government destroyed evidence and killed a witness in a high-profile case and defendants and defense counsel had to learn of it from journalists.  But does that have any legal significance to the criminal case? A due process violation can occur when the Government fails to preserve potentially useful evidence, fails to provide favorable evidence, or fails to preserve favorable evidence in the Government’s possession.  Federal precedent establishes three separate and distinguishable analyses that could arise out of the Government’s destruction of evidence, set forth below in Brady v. Maryland, 373 US 83, 87 (1963), California v. Trombetta, 467 US 479, 488 (1984), and Arizona v. Youngblood, 488 US 51, 57 (1988).

"The government destroyed evidence and killed a witness in a high-profile case and defendants and defense counsel had to learn of it from journalists."

As demonstrated in United States v. Cooper, 983 F2d 928 (1993), and United States v. Bohl, 25 F3d 904 (1994), there is more than one way to determine whether Trombetta or Youngblood applies. In Cooper, for example, the court started initially with the existence of bad faith before moving on the other factors of the Trombetta analysis. United States v. Cooper, 983 F2d at 931. In Bohl, the court began with the importance of the destroyed materials and used its determination of the value of the lost evidence to continue with the Youngblood analysis. United States v. Bohl, 25 F3d at 910. Regardless, it seems that the first task of importance is to decide which law applies. There are three options when the Government fails to provide evidence: 

A.                                  The Government fails to provide favorable evidence in its possession (bad faith irrelevant).

            A due process violation occurs when the prosecution fails to provide evidence favorable to a defendant upon request, where the evidence is material to either guilt or punishment. Brady, 373 US at87 (1963). If the evidence is favorable to the defendant and material to guilt, the good or bad faith of the prosecution is irrelevant. Id. at 87. Under Brady, and more recently, Strickler v. Greene, 527 US 263, 281-282 (1999),[1] a defendant must prove the following:

B.                                 The Government fails to preserve favorable evidence in its possession.

Under California v. Trombetta, 467 US 479, 488 (1984), to prove a due process violation for the failure to preserve favorable evidence, the defendant must prove the following:

C.                                   The Government fails to preserve potentially useful evidence in its possession.

Arizona v. Youngblood, 488 US 51, 57 (1988), set apart due process violations involving destruction. To prove a due process violation for the failure to preserve potentially useful evidence, the defendant must prove the following:
This case is about destruction or failure to preserve evidence rather than a failure to provide evidence in the Government’s possession. Thus, the appropriate analysis will be Youngblood and/or Trombetta. While the principles of Brady are persuasive, the Court’s determination does not fall to Brady per se. Regardless, Defendant asserts that whether this case falls within the confines of Youngblood or Trombetta is an important but moot point, since he can prevail with each analysis.

II.                The determination of bad faith in the context of a due process violation for the government’s failure to preserve evidence is challenging because there is no specific criteria established.

 Youngblood provided the specific test involving bad faith, has been applied so broadly throughout the United States.  However it does not specifically provide a concrete explanation for what constitutes bad faith. In the context of explaining the importance of good/bad faith when the government is alleged to have lost evidence, the Youngblood court referenced the requirement that the defendant make a showing that the government intentionally delayed to gain a tactical advantage as set forth in United States v. Marion, 404 US 307 (1971), and the government’s deportation of illegal aliens who possess evidence favorable to a defendant in United States. Valenzuela-Bernal, 458 US 858 (1982). These references mean that the Youngblood court meant to convey that bad faith is found when the government intentionally delays to gain a tactical advantage, and when the government deports an an illegal alien knowing that the witness possessed evidence favorable to the defendant in a criminal prosecution.
            In a footnote, the Youngblood court stated:
The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed. Cf. Napue v. Illinois, 360 U.S. 264, 269 (1959).
While it is tempting to use this footnote comment in a Youngblood bad faith determination, simply because subsequent cases on this issue lack the apparent clarity of these words (‘bad faith is’ or ‘bad faith means’), Defendant submits that this would be in error. First, the Napue case is from 1959, years before the Youngblood opinion. Second, the footnote discussing bad faith in the context of what police knew or did not know is placed in a paragraph in the Youngblood opinion discussing Trombetta, which is a case that requires a defendant to prove the police’s knowledge of the exculpatory value of the lost evidence. Id. Third, by the very holding in the Youngblood case, (“We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.”) there is no specific requirement that Defendant prove that the evidence was exculpatory or that police knew of the exculpatory value of the evidence before it was destroyed.
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Trombetta clearly incorporates the Napue case comments about bad faith and police knowledge. Trombetta does not require the proof of bad faith when a defendant can establish the specific elements of the case, primarily because the question of bad faith is already incorporated into the test. Defendant submits that the reason Trombetta does not require a separate bad faith finding is because, if a defendant can satisfy Trombetta (or Brady even) he has essentially established that the police have acted in bad faith. Trombetta describes a very specific kind of bad faith—the kind of bad faith that exists when police know of the value of the evidence to a defendant and then lost/destroyed it anyway. Youngblood and Trombetta are not inapposite.
Certainly if a defendant can satisfy the elements of Trombetta, then the elements of Youngblood have also been established. Exculpatory evidence is, at the very least, potentially useful evidence. But a defendant can satisfy the elements of Youngblood without satisfying the elements of Trombetta. Further, to require that a defendant prove that the police knew of the exculpatory value of the evidence before its destruction to satisfy the Youngblood bad faith requirement muddles the requirements of the two distinct tests into a Youngblood/Trombetta hybrid that does not appear to have been intended in the Youngblood opinion. Defendant submits that this Court should not insert into the opinion that which the United Supreme Court chose not to insert into the opinion. The court chose not to state directly at the time of the holding (or even place the footnote in the holding) that bad faith in the Youngblood context means only the type of bad faith described in Napue. Defendant submits that Napue sets forth one way to establish bad faith, and others exist.
Other Ninth Circuit cases confirm that this court is free to consider other evidence of bad faith, under a more general definition of what bad faith means. Defendant also submits that the Court must utilize the plain meanings of good and bad faith, as well as other descriptions of bad faith, in its review of the evidence. Black’s Law Dictionary at 139 (6th ed. 1990) describes bad faith as follows:
The opposite of “good faith, generally implying or involving actual or construction fraud, or a design to mislead or deceive another, or a neglect or refusal to fulfill some duty or a contractual obligation, not prompted by an honest mistake as to one’s rights or duties, but some interested or sinister motive. Term “bad faith” is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; it is different from the negative idea of negligence in that it contemplates a state of mind affirmatively operating with furtive design or ill will. (Internal citations omitted).
In contrast, Black’s Law Dictionary p 639 (6th ed. 1990) describes good faith as follows:
Good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and an individual’s personal good faith is concept of his own mind and inner spirit and, therefore, may not be conclusively determined by his protestations alone. Honesty of intention, and freedom from knowledge or circumstances which ought to put the holder upon inquiry. An honest intention to abstain from taking any unconscientious advantage of another, even through technicalities of law, together with absence of all information, notice, or benefit or belief of facts which render transaction unconscientious. In common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and, generally speaking, being faithful to one’s duty or obligation. (Internal citations omitted).
In civil cases, away from the issues of good/bad faith of the State in a criminal prosecution, bad faith is:   A conscious wrongdoing or breach of a known duty through some ulterior motive. Davis v. White, 794 F3d 1008 (8th Cir 2015). Not simply bad judgment or negligence, but rather the conscious doing of a wrong because of a dishonest purpose or moral ambiguity, a state of mind affirmatively operating with furtive design or ill will. United States v. Manchester Farming
P'ship, 315 F3d 1176, 1185 (9th Cir 2003).   Not based on honest disagreement or innocent mistake. Dailey v. Integon Gen. Ins. Corp., 331 S.E.2d 148, 155 (1985).  Acting with intent to deceive, harass, mislead, delay, or disrupt. Cf. Leon v. IDX Sys. Corp., 464 F3d 951, 961 (9th Cir 2006).
·         “[S]ynonymous with dishonesty.” Salsbery v. Ford Motor Credit Co., 54 Or App 522, 528 (1981), citing Bank of California etc. v. Portland H & W Co., 131 Or 123, 138-39 (1929).

A.    United State v. Cooper

United States v. Cooper, 983 F2d 928 (9th Cir 1993), is not a case that addresses the legal issue of bad faith; the district court made the determination and the government did not challenge it. Id. at 931. However, this opinion is helpful in the case at bar because it addresses other issues relevant to the determination before the court.
In Cooper, the defendants managed a small chemical laboratory that made legal chemical fuel products. Id. at 929. The DEA suspected them of participating in methamphetamine production. Id. A DEA policy authorized the destruction of hazardous materials which agents discovered when dismantling clandestine labs. Id. at 930. A contractor removed the glassware and equipment at the direction of the DEA and stored it pending disposal. Id.  One of the defendants and his attorney contacted the DEA, requesting that the materials seized be returned. Id. The DEA responded that the materials were being held as evidence. Id.  However, contractor holding the materials was not informed that the items it held should be preserved, and the materials were shipped to a toxic waste dump for burial. Id.
            The defendants were charged with conspiracy to manufacture methamphetamine and maintaining a place to distribute methamphetamine. Id. They moved to dismiss the indictment, arguing that the government violated their due process rights by its bad faith destruction of potentially exculpatory evidence. The motion was granted at the district court level. On appeal, the government only challenged the district court’s determination that defendants could not reasonably obtain evidence comparable in value to the destroyed laboratory equipment. Id. at 931. The court identified the two court cases that set out the test applied to determine when the government’s failure to preserve evidence rises to the level of a due process violation:
In California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413 (1984), the Court held that the government violates the defendant's right to due process if the unavailable evidence possessed "exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." In Arizona v. Youngblood, 488 U.S. 51, 58, 109 S.Ct. 333, 337, 102 L.Ed.2d 281 (1988), the Court added the additional requirement that the defendant demonstrate that the police acted in bad faith in failing to preserve the potentially useful evidence. See also Paradis 954 F.2d at 1488 (explaining Trombetta and Youngblood test).
 Youngblood's bad faith requirement dovetails with the first part of the Trombetta test: that the exculpatory value of the evidence be apparent before its destruction. Trombetta, 467 U.S. at 489, 104 S.Ct. at 2534. The presence or absence of bad faith turns on the government's knowledge of the apparent exculpatory value of the evidence at the time it was lost or destroyed. Youngblood, 488 U.S. at 56-57 n. *, 109 S.Ct. at 336-337 n. *.

Id. at 931.[2] The government argued that the defendants would have been able to obtain comparable evidence of the physical capabilities of the destroyed equipment, by calling expert witnesses or through a jury instruction. Id. The court rejected that argument; it noted that general testimony about the possible nature of the equipment would be an inadequate substitute for testimony informed by its examination, and the pictures taken during the seizure were inadequate to assess the capabilities of the equipment. Id.  The court also concluded:
The court appropriately rejected such an instruction. It would cheat Cooper and Gammill out of the opportunity to establish the weight of their claim to innocence. If the equipment were structurally incapable of methamphetamine manufacture and if the equipment was specially configured for legitimate procedures, that would be powerful, weighty evidence. The proposed jury instruction is not of comparable substance.

Id. at 932.

Was relevant evidence hidden or destroyed?

            The killing of a defense witness and destroyed or hidden evidence of the scene of the killing of LaVoy Finicum are possibly both material and favorable. Witnesses could be called from the government and potentially other witnesses to establish a factual record regarding the benefit of this evidence.  The defendants’ expert in Cooper testified that if the defendants’ description of the reaction vessel were accurate, it could not manufacture methamphetamine. Id. at 932. But he also testified that to make a firm determination about the reaction vessel’s capabilities, he would need to examine the evidence. Id. 

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B.     United States v. Bohl

While Cooper did not address the issue of bad faith, the United States v. Bohl, 25 F3d 904 (10th Cir 1994), court did make a determination on the facts regarding the bad faith of the government actors. In Bohl, the defendants were charged with conspiracy to defraud the United States when the composition of three radio transmission towers constructed for the Federal Aviation Administration (“FAA”) failed to conform to the required specifications. Id. at 907. Defendants requested access to the towers to conduct an inspection of the steel in advance of indictment. Id. The government’s investigator also requested that FAA preserve the towers for the government’s case. Id. at 908. After indictment, defendants requested access to the towers. Id.  The government responded with assurances that it would provide the present condition and location of the towers. Id. However, the only actual tower material the government ever provided to defendants was an 18-inch portion from one of the towers and some shavings from the other towers. Id.
Defendants filed a pretrial motion to dismiss due to the government’s destruction of essential evidence, arguing that the scant evidence precluded them from conducting their own tests on the towers’ chemical composition. Id. At the hearing, the government conceded that it failed to respond to requests for information and that the towers could not be located. Id. It also asserted that defendants had access to photographs of the towers, small samples and the government’s test results, and thus had access to comparable evidence. Id. The district court denied the motion to dismiss. Id. The motion was renewed at trial on the grounds that the government’s destruction of the towers deprived them of the opportunity to conduct their own examination. Id. at 908-909. It was again denied. Id. at 909. The motion was renewed again at trial, and it was again denied on the grounds that there was no evidence that there was any intent on the part of the government to cause the destruction of the towers. Id.
The Bohl court began its due process analysis with a discussion of the starting point—Trombetta or Youngblood. Id. at 910. The Bohl court determined that tower legs offered only potentially useful evidence for the defense, and applied the rule set forth in Youngblood. Id. In making that determination, the Bohl court emphasized that the defendants conceded that the exculpatory value of the legs lay only in the potential results that might be obtained from further tests, tests that they could not perform because the towers were destroyed. Id. at 910. The court stated, “Hence, the exculpatory value was latent, rather than patent, and it was not apparent at the time of the destruction of the legs what further tests of the legs would reveal.” Id.
In its determination that the government acted in bad faith, the Bohl court emphasized that the government had been put on notice that defendants thought the evidence was exculpatory, defendant’s assertions that the tower legs possessed potentially exculpatory value was backed up with objective, independent evidence, the government still had possession or control over the evidence at the time it received notice from defendants about the potential value of the evidence, the evidence disposed of was central to the government’s case and the government offered no innocent explanation for the failure to preserve the evidence which formed the core of its criminal charges against defendant. Id. at 911-912.
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The Bohl court also acknowledged that the government does not necessarily engage in bad faith conduct when the destruction of evidence results from a standard procedure employment by the governmental agency regarding the disposal of like evidence, such as destruction of marijuana plants seized due to lack of storage capacity. Id. at 912-913. It also acknowledged and found it significant that, even though defendants had the burden to prove bad faith of the government, the government offered no reasonable rationale or good faith explanation for the destruction of the evidence. Id.

Is hiding bullet casings in bad faith?

Here, there can be no standard procedure to kill a man and then hide bullet casings and lie to investigators afterwards.  There can be no other inference from hiding evidence than bad faith.  The FBI didn’t want the sun to shine in on their investigation, because it threatened their control of the narrative that these protesters were violent men that deserved to be shot at and killed.  So, they tried to make the evidence fit their predetermined facts—that LaVoy Finicum deserved to be shot, so it was okay to shoot him.  Unfortunately, that couldn’t be further from the truth.  The Court should be staked with determining if the evidence destroyed in this case was exculpatory and destroyed in bad faith.  The government has no reasonable rational or good faith basis for destroying bullets after shooting a political protester.  As in Bohl, the court could find any assertion of good faith to be incredulous, and grant sanction the Government with a dismissal or limitation on evidence.   

"The FBI didn’t want the sun to shine in on their investigation, because it threatened their control of the narrative that these protesters were violent men that deserved to be shot at and killed."

C.    United States v. Elliott

            The opinion in United States v. Elliott, 83 F Supp 2d 637 (E D Va 1999), is a logical, well-written example of how a Court could approach the analysis of the issue of destroyed evidence in this context. It contains a helpful summary of the controlling legal principles when a defendant moves to dismiss an indictment based upon the destruction of evidence. Id. at 642-643. However, instead of choosing to hoe the row of Youngblood or Trombetta, the court acknowledged that either Youngblood or Trombetta could apply, and began with the exculpatory value of the destroyed evidence. Id. at 643. As the State notes, the Elliott court did take into consideration the government’s compliance (or lack thereof) with established procedures for preserving evidence. Id. at 646-648. However, in making the bad faith determination, the Elliott court also addressed the agent’s statements to defendant (as proof of bad faith) and the agent’s belief that he was authorized to destroy the evidence. Id. at 644-645, 648. The court concluded that defendant’s due process rights had been violated, but found that the facts of the case did not support dismissal. Id. at 649.

D.    United States v. Zaragoza-Moreira

The most recent pre-conviction Ninth Circuit case addressing the question of the government’s bad faith in the context of an alleged violation of a defendant’s due process rights when the government failed to preserve evidence is United States v. Zaragoza-Moreira, 780 F3d 971 (9th Cir 3-18-2015). The defendant, charged with importing heroin and methamphetamine, appealed the district court’s denial of her motion to dismiss based upon the government’s destruction of evidence that might have supported her claim for duress. Id. at 973. The defendant’s statements at the border were video recorded, but destroyed when it was automatically recorded over within 30-45 days of the arrest. Id. at 976-977. The government asserted that the loss of the video was an “oversight.” Id. The Ninth Circuit did not agree, because the agent who failed to preserve the video recognized the importance of the defendant’s statements in the video, admitted she had a professional obligation to collect and preserve inculpatory as well as exculpatory evidence, and she admitted that she understood that a defendant who is threatened with a crime has a possible defense to that crime. Id. at 980. The court determined that when Agent Alvarado knew of the potential usefulness of the video footage and acted in bad faith by failing to preserve it, Zaragoza's due process rights were violated. Id. at 982.
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IV.       Dismissal of the Indictment is one possible remedy. 

            The Trombetta court confirmed the remedies that are available when a due process violation involving destruction of evidence has been found:
Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuala-Berna, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when the evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing…the State’s most probative evidence.
California v. Trombetta, 467 US at 486-487. The Bohl court noted:
Unlike cases in which the prosecutor fails to disclose Brady material, where a court may order a new trial at which the undisclosed evidence can be introduced, the disposition of evidence that is central to the case may permanently deprive the defendant of due process. Accordingly, after concluding that there has been a violation of Youngblood, the decision to either suppress the government’s secondary evidence describing the destroyed material or to dismiss the indictment turns on the prejudice that results to the defendant at trial. Such factors as the centrality of the evidence at trial, the reliability of the secondary evidence, and the effect such destruction had on the defendant’s ability to present a defense, must be considered in the calculus.

United States v. Bohl, 25 F3d at 914.[3] See also United States v. Bagley, 473 US 667, 687 (1985) (when the government violates a defendant’s due process rights under Brady, a court must determine whether the suppressed evidence would “undermine confidence [ ] in the outcome of the trial”).
            The Bohl court ultimately concluded that the appropriate remedy when the government destroyed evidence was dismissal:
Inasmuch as the chemical composition of the steel in TSL’s towers was critical to the government’s case, Bell and Bohl offered credible evidence both that their owns tests might have produced exculpatory evidence and that the government’s testing methodology was flawed, and the government does not suggest an alternative to protect Bell and Bohl’s due process rights, we have no choice but to remand with instructions to dismiss the indictment.
Bohl at 914. The Cooper court also ultimately concluded that the appropriate remedy was dismissal, as a proposed stipulation by the government was an inadequate substitute for the lost evidence. United States v. Cooper, 983 F2d at 933. The court also concluded that suppression of the government’s evidence was inadequate; it noted, “[Defendants] should not be made to suffer because government agents…in bad faith, allowed its proof, or its disproof, to be buried in a toxic waste dump.” Id.

Can anything be done to right this perceived wrong?

In the Malheur protest case, a dismissal of the Indictment may be the only way to practically or adequately remedy the violations committed by the Government. The evidence lost from the scene is irreplaceable and taints the reliability of the entire investigation that is not remedied by merely being pointed out to a jury, which the court has ruled cannot even be done.
Exclusion of the State’s evidence is not an adequate remedy. In the alternative to dismissal, a defendant could request exclusion of all post-shooting evidence to level the playing field and address this egregious due process violation.  Unfortunately, because the government has selectively released information to the public while attempting to use the Court’s power for a protective order to gag the defendants, they selectively released a video with their chosen narrative.  They did so while knowing that they were releasing information about an FBI cover-up, but chose, suspiciously, to not include that in their explanation, which was a thinly veiled attempt to vilify Mr. Finicum, the very man they killed.

By Mike Arnold, 8/30/2016
Author of forthcoming book Finishing Machine

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