Cliven Bundy v. USDC-NVL

Filing

FILED PER CURIAM OPINION (WILLIAM A. FLETCHER, RONALD M. GOULD and JAY S. BYBEE) (Judge RMG Dissenting) DENIED. FILED AND ENTERED JUDGMENT. [10377743]

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FILED
In re Cliven D. Bundy, No. 17-70700

MAR 30 2017

GOULD, Circuit Judge, dissenting:

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

I respectfully dissent from the court’s denial of the Emergency Petition for
Writ of Mandamus filed March 9, 2017. The reasons for my dissent are essentially
the same as for my earlier dissent to the majority’s published decision denying the
first mandamus petition.1 See In re Bundy, 840 F.3d 1034, 1049 (9th Cir. 2016)
(Gould, J., dissenting). So far as I can discern, Defendant Cliven Bundy’s highprofile political status and prospects for retaining a skilled and aggressive defense
team have not substantially changed since my prior dissent. I do not doubt that
attorney Bret Whipple is a fine lawyer who has some federal criminal case
experience. But the long course of American justice shows that sometimes
representation by multiple attorneys is key to a robust defense.2 And I continue to
1

I might have instead written a concurring opinion, accepting as circuit law
the prior decision of this panel from which I previously dissented, but I think it
makes my views clearer to understand when my views are framed as a dissent.
2

It is not uncommon for a high-profile criminal defendant to have a team of
skilled defense lawyers. Well-known examples include O.J. Simpson’s defense to
the charged 1994 murders of Nicole Brown Simpson and Ronald Goldman, and
Dzhokhar Tsarnaev’s defense to charges related to the 2013 bombing at the site of
the Boston Marathon. Another famous case involving a defense team, this one
without charges of violent crimes, was the so-called Scopes “Monkey” trial in
1925. There, Clarence Darrow and a team of several other distinguished lawyers
defended a school teacher in Tennessee who had been charged with a crime for
teaching evolution. See Scopes Trial, HistoryNet,
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believe that Bundy’s needs for experienced defense counsel of his choosing are
more important than the articulated concerns about Larry Klayman’s ethics, where
he has not been disbarred or suspended by another bar association or proven to
have engaged in unethical conduct that could justify disbarment. See In re Evans,
524 F.2d 1004, 1007 (5th Cir. 1975); Schlumberger Techs., Inc. v. Wiley, 113 F.3d
1553, 1561 (11th Cir. 1997). Attorney Klayman has told the district court and our
appellate panel that he will in this case abide by all orders of the district court. I
take him at his word on this.
This is a complex, multi-defendant proceeding, and the stakes could not be
higher for Defendant Cliven Bundy. Bundy could spend the rest of his life in
prison if convicted. To be sure, Klayman’s aggressive tactics are likely to irritate
the district court judge. But in a tough case with experienced prosecutors, forceful
advocacy can be necessary to a full defense. And concerns over Klayman’s
aggressive style must yield to a superordinate concern: that Bundy have the
counsel of his choice to receive a fair shake at this most critical trial. The
government has chosen to marshal its massive resources towards convicting
Bundy. We ought to let Bundy marshal the defense team he chooses. I rest my
decision on the fundamental premise that Bundy has a Sixth Amendment right to
http://www.historynet.com/scopes-trial.htm (last visited Mar. 28, 2017).
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counsel of his choice and that that right is not exhausted once he has one
competent criminal defense lawyer. So long as he is footing the bill, the Sixth
Amendment protects Bundy’s right to convene a defense team of his choosing. See
United States v. Walters, 309 F.3d 589, 592 (9th Cir. 2002) (Sixth Amendment
violation for pro hac vice denial where defendant was represented by other
competent counsel). A system of extreme deference to a district court’s decisions
on pro hac vice admission of an experienced lawyer long-admitted to other bars is
not a valid reason to deny Bundy his counsel of choice in the circumstances of this
case. I respectfully dissent.

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