The right thing: District Court Judge Navarro denies defense ability to mention first, second amendment | TSLN.com

The right thing: District Court Judge Navarro denies defense ability to mention first, second amendment

A Nevada judge declared that neither the first amendment nor the second amendment will be mentioned in her courtroom during her current trial.

After an April mistrial, four individuals who were involved in the April 12, 2014 Bundy Ranch "standoff" between BLM employees and the Bundy family and first amendment supporters are being re-tried on conspiracy and other acts against the federal government.

Because the jury could not come to an agreement on the charges against Eric Parker, Steven Stewart, Scott Drexel and Ricky Lovelien, in the April 2017 trial, the U.S. District Judge Gloria Navarro declared a mistrial and is now holding the second trial for these same men.

The first three men mentioned are friends from Idaho, while Lovelien is a Montanan, said Andrea Olson-Parker, wife of Eric Parker. The four are considered "mid level" participants who bore arms – in the Bundy standoff. The more active members of the event have yet to be tried.

“The Government argues that because Defendants were unable to establish a theory of self-defense in Trial 1, any related argument or evidence in support of such a theory is irrelevant and should be excluded as it would ‘only serve to advance [jury] nullification arguments. ... Defendants’ state of mind regarding their beliefs or why they were present in Bunkerville, Nevada, on April 12, 2014, is not relevant to the charged offenses or the allowed mere presence defense.” U.S. District Judge Gloria Navarro

A father of two, Eric spent about 24 hours in the Bunkerville area April 2014, after seeing images online of what he percieved as officers overstepping their duties – police officers throwing a woman to the ground and apparently tossing one of the Bundys to the ground for taking a picture. Eric's interest was not so much in the livestock and grazing aspects of the situation as in what he viewed as a government bullying situation wherein federal officers had tried to restrict protesters to a "First Amendment zone" and were pointing firearms at unarmed protesters – some women and children.

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The rest of the defendants, including Cliven Bundy and several of his sons, will be tried 30 days following the closing of this case, according to the judge.

Six were on trial in April 2017, including the four mentioned above, along with Greg Burleson and Todd Engel. Burleson was found guilty and was later sentenced to 68 years in prison. Todd Engel was also found guilty but has not yet been sentenced. The jury was split on the remaining four. According to Andrea, the jury found 8-4 for acquittal for Parker in April, 7-5 for acquittal for Drexler and 10-2 for acquittal for Lovelien and Stewart.

For both the April, 2017 trial, and now the current re-trial, Judge Navarro issued statements that freedom of assembly, speech, press, the right to bear arms, and self defense on the part of the protesters would not be allowed to be talked about during the trial. The defense also could not mention what it perceived as brutality on the part of BLM officers leading up to the April 2014 standoff.

In a "Motion in Limine,” issued July 9, 2017, sought and granted by herself Judge Navarro said the government "seeks to preclude 'any information or argument that the defendants broadly characterize as 'state of mind' evidence which…amounts to no more than irrelevant personal opinions and beliefs about the BLM, BLM agents and agent conduct.'"

Navarro said in the motion that she specifically does not want the following items mentioned during trial: officer encounters with civilians during the April arrest of Dave Bundy, April 9, officer encounters including video recordings with Ammon Bundy or Margaret Houston (video of federal officers tossing Houston to the ground were widely circulated on the internet), testimony regarding the level of force displayed or used by law enforcement officers during the impoundment operations, references to the opinion/public statement of Governor Brian Sandoval of April 8 or opinions registered by other politicians about BLM impoundment operations, references to First Amendment Zones, references to Cliven Bundy's grazing, water, or legacy rights on the public lands, references to infringements on First and Second Amendment Rights and references to the punishment the defendants may face if convicted of the offenses.

Navarro goes on in her motion: "The Government argues that because Defendants were unable to establish a theory of self-defense in Trial 1, any related argument or evidence in support of such a theory is irrelevant and should be excluded as it would 'only serve to advance [jury] nullification arguments.'"

"…Defendants' state of mind regarding their beliefs or why they were present in Bunkerville, Nevada, on April 12, 2014, is not relevant to the charged offenses or the allowed mere presence defense."

According to USlegal.com, "Jury nullification occurs when a jury returns a verdict of 'not guilty' despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate that are charged with deciding."

In her effort to avoid jury nullification – or a "not guilty" verdict by the jury, Judge Navarro has severely limited what the defense can say during the trial.

Roger Roots, a Montana attorney who has been watching the retrial, said that the judge explained that the First Amendment would "confuse the jury," and that the Second Amendment doesn't apply because federal gun laws have never been struck down as unconstitutional.

"If you take that logically to its conclusion, the Second Amendment would never be able to be used as a defense in any trial," he said.

"The government has been able to pretty much make any accusation and use all evidence it wants and explore any theory. The defense has been stopped from really explaining the circumstance," he said.

"Basically these defendants came to Nevada after watching news reports of the BLM abusing people, and they aren't allowed to use evidence of the BLM abusing people – that is their very motive in coming to Nevada but they can't show it to the jury," he said.

"He can't say why he went, he can't say what he saw when he got there," said Andrea.

Roots went on to explain that the prosecution and judge has called any information from the defense side, other than what happened during a 2-hour period on April 12, irrelevant.

Roots said no motion has been filed to recuse or disqualify the judge. He said some of the defense attorneys have filed motions calling for a speedy trial, which, if granted, could mean that instead of the remaining defendants waiting their turn to be tried in the same courtroom with the same judge, they could be placed in different courtrooms for simultaneous trials. So far this has not happened.

Navarro, in her motion, described the scene on April 12 as she interpreted it, "Deliberately lying, the leaders and organizers pleaded for gunmen and others to travel to Nevada to "stop the abuse," by "making a show of force against [the officers]'" in order to "get them to back down" and "return the cattle."

She goes into great detail about the events of the day as she believes they happened.

After the prosecution wrapped up about three weeks of witness testimony, the jury was not allowed to hear several of the defense's witnesses.

Andrea said that four defense witnesses "proffered" via Skype (an online video conference service) so that their testimony would be recorded in the case of a future appeal, but that the jury in this case was not allowed to hear those witnesses’ testimonies. A proffer is a preview of what a witness might tell a jury.

Eric Parker stepped onto the witness stand Aug. 10, a day after the proffering, and after a couple of hours of testimony, was told by the judge to step down before his testimony was completed.

"He couldn't mention his own fear of BLM agents, he couldn't say that the BLM agents were pointing guns at him. He said 'my main focus was on those trucks, and straight forward and to the right,'" recalled Andrea, who was present in the courtroom. "There were snipers on the mesa pointed at him, that's the reason he got down (in the 'prone position')." But Eric was not allowed to talk about those details in trial and his description, as a witness, of his focus "forward and to the right" was enough to inspire the judge to remove him from the witness stand before he completed his testimony.

Andrea said Eric walked back to the table, sat down by his attorney and cried.

"The jurors were open-mouthed," she said, adding that she overheard some attorneys speculating that the judge might call a mistrial out of fear that the jury is beginning to side with the defense. Because there is no limit to the number mistrials that can be called, the four defendants would likely wind up in a third trial with the same judge if a mistrial is called.

Andrea also explained that, even in the first trial, the defense only was able to call three witnesses, while the prosecution called about 35.

Any potential civilian witnesses who were present during the April 12, 2014 standoff near Bunkerville, were informed by the court that if they testify, they could be charged as co-conspirators. "They were treated as if they needed a lawyer, then after 40 minutes with a lawyer, they were told 'anything you say can and will be used against you,'" Andrea explained.

She said that the defense was denied a number of witnesses in the current trial but two of the most notable were witnesses whom the prosecution had called in trial one.

"The government called Dennis Michael Lynch last time, but the defense isn't allowed to call him this time." Andrea said of a Fox News correspondent who had been present the day of the standoff. The defense was also denied a second witness that had been called by the prosecution in the April, 2017 trial.

"We aren't allowed to ask who pointed weapons first or show images of the BLM pointing firearms. There is so much evidence – there are videos and pictures that would help our case but we can't bring that in," said Andrea.

Roots said there is no photographic evidence of any of the protesters pointing a firearm at a federal officer. "The government has spent millions of dollars trying to find a picture like that and they can't."

Eric Parker became an internet sensation when a photo of him lying on a bridge, with the a gun pointed through the cement sidewalls, in the general direction of a group of protesters and federal agents on April 12, 2014, went viral. Andrea Parker said Eric did not have a scope on his rifle and that he did not intend to fire unless it was as a protective measure.

No shots were fired that day. Andrea's slogan is: "No victim, no crime."

A woman charged with attempted murder of a police officer during the North Dakota protests against the Dakota Access Pipeline was released from prison on bond so she could live in a half way house. According to the Morton County public information officer, on October 27, [2016] Red Fawn Fallis fired three shots at law enforcement officers and refused to relinquish the firearm until it was forcefully removed from her possession by law enforcement. Fallis has not yet been tried but will face a maximum sentence of 20 years and/or a $20,000 fine.

It was after they staged a protest in Oregon in January 2016, to call attention to the prison sentence of ranchers Steve and Dwight Hammond that many of the Bundys and others were arrested. One man in that protest party, LaVoy Finicum, was shot and killed by state and federal officers while on his way to a meeting. The protesters did not fire their weapons. The others in the group allowed themselves to be arrested that day, and others, including Cliven Bundy, who were not involved in the Oregon protest, were arrested shortly afterward, for their involvement in the 2014 Bundy standoff.

According to Roots, the defendants in this case, who have served about 18 months in prison, awaiting their trials, are facing a mandatory minimum of seven years in prison if found guilty and 25 years to life if they are convicted of more than one offense. "They are looking at potentially life in prison. And some were only there for one day."

Neither the Nevada BLM office nor the Nevada Department of Justice replied to requests for information for this story.

 


Editor’s Note: We have compiled a list of all the articles we have published, as well as a timeline of the events, surrounding the Bundy Standoff and other incidents relating to government control of public lands such as the Hammond Fire Trial and the occupation of the Malheur National Wildlife Refuge. Click here for more information. 

The charges against some or all of the co-defendents

1. Conspiracy to commit an offense against the United states

2. Conspiracy to impede or injure a federal officer

3. Use and carry of a firearm in relation to a crime of violence March 2014 until March 2016

4. Assault on a federal officer – April 9

5. Assault on a federal officer – April 12

6. Use and carry of a firearm in relation to a crime of violence – April 12

7. Threatening a federal law enforcement officer – April 11

8. Threatening a federal law enforcement officer – April 12

9. Use and carry of a firearm in relation to a crime of violence – April 12

10. Obstruction of the due administration of justice – April 6

11. Obstruction of the due administration of justice – April 9

12. Obstruction of the due administration of justice – April 12

13. Interference with Interstate commerce by extortion – April 2 and 9

14. Interference with interstate commerce by extortion – April 12

15. Use and carry of a firearm in relation to a crime of violence – April 12

16. Interstate travel in aid of extortion

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