LAS VEGAS (AP) — Restrictions placed by a federal judge on what defendants can say about being at Cliven Bundy’s ranch in April 2014 are leading to tense moments in the Las Vegas retrial of four men accused of wielding assault-style weapons to stop federal agents from rounding up cattle belonging to the anti-government figure.
Chief U.S. District Judge Gloria Navarro refused Monday to order a mistrial sought by the defense attorney for Eric Parker. Navarro had ordered Parker off the witness stand last week and told the jury to disregard his testimony.
Such a dramatic step involving a defendant in the presence of a jury is unusual and might draw scrutiny from the 9th U.S. Circuit Court of Appeals in San Francisco, said Robert Draskovich, a Las Vegas lawyer who said he had never heard of such a move in more than two decades practicing in federal courts. Draskovich is not involved in the Bundy case.
Outside the presence of the jury on Monday, Navarro said she hadn’t wanted to order Parker to step down.
She told prosecutors, defense attorneys and a crowded court gallery that she thought Parker was trying to invite jury nullification of charges and deliberately “continuing to make a mockery” of court rulings she handed down before the retrial. Those rulings limited the scope of defense presentations to what the men saw and did, not what they felt or why they acted.
A jury in April found two co-defendants guilty of some charges, but it failed to reach verdicts for Parker, Scott Drexler, Steven Stewart and Richard Lovelien.
Bundy, his sons Ammon and Ryan, and two other defendants are due for trial later this year. Six others, including two other Bundy sons, are slated for trial next year.
Navarro ruled that defendants can’t argue this time that they were acting in self-defense or in the defense of other protesters.
They can’t say they were motivated to drive to southern Nevada from Idaho and Montana after hearing about scuffles involving unarmed Bundy family members and Bureau of Land Management agents using dogs and stun guns.
They can’t refer to criticism by Nevada Gov. Brian Sandoval of federal agents for creating what the Republican governor called an “atmosphere of intimidation” in the days before the standoff.
They can’t point to so-called “First Amendment zone” corrals set up for protesters well away from the Bundy ranch; they can’t cite claims of infringement on free-speech and Second Amendment rights; and they can’t refer to the decades in prison they might face if they’re convicted.
“Just because law enforcement is pointing a gun doesn’t mean you get to point one back,” Navarro said Monday.
Parker was famously photographed during the April 2014 standoff flat on his stomach on the pavement of an Interstate 15 overpass, looking down an AK-47-style rifle toward heavily armed federal agents in a dry river bed below.
Drexler is seen in a similar photo, and images show Steven Stewart carrying an assault-style rifle, but not aiming it. Richard Lovelien also had a rifle, but his lawyer, Shawn Perez, said there is no photograph in evidence showing him pointing it at anyone.
Defense attorneys say their clients are being unfairly and unconstitutionally denied a chance to explain for jurors what they saw and heard and why they went to the Bundy ranch.
“We need to be able to defend ourselves, to rebut, to impeach against accusations,” Parker’s attorney, Jess Marchese, protested during morning-long arguments held outside the presence of the jury now in a fourth week of testimony. “That’s why we’re here.”
Drexler was expected to take the stand in his defense, but Stewart and Lovelien said they won’t do so.