Did Navarro Cause the Jury to Nullify?
by Shari Dovale
The recent case of the Bunkerville Retrial ended with 34 of 40 charges to be found ‘Not Guilty’ and the remaining charges to be 11-1 in favor of acquittal by the jury.
This trial had an unusual element involved, specifically allowing the jury to ask questions of the witnesses. This is not unheard of in lower level courts, but almost never used at the Federal level. It was not allowed in the first trial of these defendants.
Judge Navarro rarely censored any jury question for the prosecution witnesses. However it became very apparent that she would not allow the jury to ask their pressing questions when it came to the defense.
Defendant Eric Parker attempted to testify, yet was removed from the witness stand by Judge Navarro after a few minutes. The jury saw this, and was left in confusion when it was not explained.
We learned from the transcripts what was said during the sidebars:
Parker was removed from the stand for mentioning the men on the hill:
The jury was left a bit dazed, as was evidenced by the looks on their faces. Parker was also stunned by Navarro’s decision, as he seemed to be making every attempt to comply with the court’s orders. The jury was not allowed to ask him any questions.
Defendant Scott Drexler was allowed to testify, in a very limited scope. When his testimony was finished, the jury submitted several questions.
The following is a list of the questions, with pertinent sidebar discussion, and Judge Navarro’s decision for each. It is apparent the jury wanted to get the information they knew was being kept from them. It is, also, obvious that at least one juror is concerned for the defendant’s Constitutional rights:
Q: No. 131, “When and how did you learn that the Long Bow agency were FBI agents?”
THE COURT: Any objection?
MS. CREEGAN: I think it’s not relevant.
THE COURT: I guess it’s relevant depending on what the answer is. Did he know at the time or afterwards? You all know this answer better than I did. It seems like he didn’t know until after the arrest; right?
MR. MARCHESE: After.
THE COURT: Okay. So, I agree. It wouldn’t be relevant.
Q: No. 132, “In your testimony you said a person with a gun has more respect. What makes a gun give you respect?”
THE COURT: Is that argumentative?
MS. CREEGAN: It seems argumentative.
THE COURT: Yeah.
MS. CREEGAN: We object on the basis that it’s argumentative.
MR. LEVENTHAL: No objection. Well, it’s not argumentative, it’s his thoughts. It’s going directly to him. It his thoughts. What he thinks. It’s not argumentative. It’s not asking for an argument. He made the statement and it’s directly on point from that statement, so . . . it just — to me, it’s more clarification for what it is that he’s saying. There’s nothing argumentative about the question or the answer.
THE COURT: I think it is argumentative. I’m not going to ask 132
Q: 133 has several parts. The first one is, “What generated your interest in the Bundy topic in the first place?”
MS. CREEGAN: Government objects that it’s going to call for — he’s going to take that license to go into something he shouldn’t have, something like five times in his
testimony he went into something he shouldn’t have and I think it’s clear he’ll take into opportunity to do that.
THE COURT: The general — the information requested in this question I don’t think is necessarily going to be more than what the defense has already elicited and does appear that it would only encourage him to get into the improper areas. So I won’t ask that question.
Q: The second question in Jury Note 133 is, “Why were you interested in protesting at this spot?”
MS. CREEGAN: That’s almost the same question, just rephrased.
MR. LEVENTHAL: It was his testimony that he went down to go protest.
THE COURT: Yeah. I agree. So it doesn’t – it’s irrelevant what the . . .
Q: Number 3 on Jury Note 133 is, “Did you feel as though the Bundy protest was an attempt to protect constitutional rights?”
MS. CREEGAN: It seems like this will call for the first and second response which has already been prohibited by Court order.
THE COURT: Yeah.
THE COURT: I agree. It doesn’t look like —
Q: last question for Jury Note 133 is, “Did you fear for the safety of other protestors on the day in question? If so, why?”
THE COURT: It gets into the area that the Court order prohibits.
Q: Jury Note 134, “When did Mr. Drexler learn he had been interviewed by undercover FBI for the documentary?”
THE COURT: So this is the same as before.
THE COURT: So it sounds like they’re trying to elicit whether he knew about it when he gave the information? I’m not sure how that . . .
MS. CREEGAN: I think if the Court asks it that way, did you know at the time you were doing it that that would be sufficient to capture what they’re asking.
THE COURT: Yeah. All right. So I’ll change it to, “Did you know at the time you gave statements?” “Did you know at the time you were interviewed for the documentary that they were FBI undercover agents?”
Q: Jury Note 135, “Was your purpose in coming to Bunkerville to establish credibility with the militia and gain full membership with a tattoo?”
MR. MARCHESE: Parker objects.
MS. CREEGAN: This person is asking a yes or no question. So, assuming he’s not going to take it to immediately launch into the things that are prohibited and just say, you know, yes or no, I didn’t do those things.
THE COURT: All right. So preface it with a yes or no?
MS. CREEGAN: Yes.
THE COURT: Okay.
Q: the second question on Jury Note 135 is, “Why did not — why did you not join the American Red Cross to support your country?”
MS. CREEGAN: I like the sentiment, but I think it’s probably argumentative.
MR. LEVENTHAL: I would object to that question.
THE COURT: I’m sorry. I can’t —
MR. LEVENTHAL: I think argumentative. I agree.
THE COURT: We won’t give that question.
Q: 136. “You stated that the Idaho 3%er was a civil defense group doing community service. Was there also training in military-style tactics, in firearms usage, and armed standoffs?”
MS. CREEGAN: No objection.
MR. LEVENTHAL: I don’t object.
THE COURT: Okay.
Q: 137. “What was compelling to you about what was occurring in Bunkerville, Nevada, that sparked your interest to go and join the protest?”
MS. CREEGAN: This is just the same question again.
Q: The second part of the question is, “Were you aware about the presence of the 3%ers in Idaho prior to April 2014?”
MS. CREEGAN: No objection.
MR. LEVENTHAL: No objection.
Q: 138. “What are the purposes of the 3% organization that you were participating?”
THE COURT: I think he’s already testified to that.
MS. CREEGAN: I think that’s asked and answered.
THE COURT: Any objection, Mr. Leventhal?
MR. LEVENTHAL: No, Judge.
THE COURT: It looks like it has been asked and answered.
Q: The next one is, “What is your intention to go to Bunkerville on April 12st, 2014, even though you don’t know anyone in the Bundys’ Ranch?”
MS. CREEGAN: I think that may also be asked and answered.
THE COURT: Mr. Leventhal, no objection?
MR. LEVENTHAL: No.
THE COURT: All right. I agree, it’s . . . also asked and answered and more likely to lead into testimony that the Court has ordered is not relevant that this defendant has already mentioned twice at the very end of his testimony.
Q: 139. “You stated that you had no knowledge of the Court order, you didn’t know the Bundy family, and you were not aware of the impoundment. What thoughts guided your decision to go to Bunkerville and why did you need 250 rounds of ammunition if, as you say, you were just going to hold a sign as a protestor?”
MS. CREEGAN: That’s probably compound, argumentative, asked and answered.
THE COURT: Mr. Leventhal?
MR. LEVENTHAL: I think we object to that.
THE COURT: Okay. All right. So we won’t give 139.
Q: 140. “Why would you bring a high-powered weapon for protection if you were only planning on protesting?”
THE COURT: Any objection?
MS. CREEGAN: I think it’s a good question, but I’m sure he’ll take it as an opportunity.
THE COURT: Mr. Leventhal?
MR. LEVENTHAL: I don’t object to it.
THE COURT: Yeah. I think it’s still argumentative. Not a whole lot we can ask here, but we’ll do the best we can.
This is what the transcript shows was asked in front of the jury:
THE COURT: All right. So, jury question on Note No. 131, we’ve agreed will be rephrased a bit. So, “Did you know at the time that you provided the interview for the documentary that the interviewers were FBI agents?”
DEFENDANT DREXLER: No, I did not.
THE COURT: Okay. Jury Note No. 132 asks a question that — about the — goes into the — the gun and the respect and it is — the Court’s not going to ask that question.
Jury Note No. 133 also asks questions related to areas that are collateral and while I understand the curiosity,
we’re trying to keep it focused on the areas that are important for the jury instructions. So I’m not going to ask that question.
Jury Note No. 134 is the same as a prior one regarding whether Mr. Drexler knew that the undercover agents were FBI at the time that the interview was conducted. So that’s been asked and answered.
Jury Note No. 135 asks a yes or no. “Was your purpose in coming to Bunkerville to establish credibility with the militia and gain full membership with a tattoo?”
DEFENDANT DREXLER: No, it was not.
THE COURT: And then the next question asks about whether you had joined the — why didn’t you join some other organization instead and we’re not — that’s also not applicable here.
Jury Note No. 136 says, “You stated the Idaho 3%ers were a civil defense group doing community service, but was there also training in military-style tactics, in firearm
usage, or armed standoffs?”
DEFENDANT DREXLER: Yes. There is training, safety with firearms. It’s imperative that people are safe if they’re going to be using weapons.
THE COURT: And Jury Note No. 137, “Were you aware about the presence of the 3%ers in Idaho prior to April 2014?”
DEFENDANT DREXLER: I don’t believe that there was a 3%ers of Idaho prior. It was started after this all happened.
THE COURT: And then Jury Note No. 138 asks a question that’s already been provided to the extent that it can be.
139 is also in areas that have already been covered and then Jury Note No. 140. Also asks about the weapon that’s already been provided.
Judge Navarro clearly made every attempt to shut down the jury as she had the defense. I am sure that this was a major contributing factor to the jury finding the defendants not guilty of the majority of charges.
When asked after the trial concluded, it was said the jury specifically noted that they felt they had not been given the full story. Navarro went to extraordinary lengths to avoid jury nullification, yet it would seem that she herself may have caused just that to happen.
We currently have no reason to think that Judge Navarro will change her strategy for conviction in the third trial of these defendants. It has not worked so far, yet I am sure she could prescribe to the adage “The third time is a charm.”
The next trial is scheduled to begin on October 10th, and will include the ‘1st Tier’ defendants of Cliven Bundy, Ammon Bundy, Ryan Bundy, Pete Santilli and Ryan Payne.
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