A federal judge’s acquittal of a New Mexico man in April was a rare blemish on the Justice Department’s record of securing convictions in U.S. Capitol riot cases. More than two months later, a Delaware father and son hope the same judge will clear them, too.

Widely published photographs showed Kevin Seefried carrying a Confederate battle flag inside the Capitol after he entered the building with his son, Hunter. The Seefrieds were “early, aggressive and active participants” in the Capitol breach and among the first rioters to enter the building on Jan. 6, 2021, prosecutors have said.

U.S. District Judge Trevor McFadden is hearing testimony without a jury for the Seefrieds’ bench trial, which started Monday. The Seefrieds waived their right to a jury trial, which means McFadden will decide their cases.

The charges against both Kevin and Hunter Seefried include a felony count of obstruction of an official proceeding, the joint session of Congress for certifying Joe Biden’s victory over then-President Donald Trump in the 2020 presidential election.

During the trial’s opening statements, defense attorneys said the Seefrieds never intended to interfere with the Electoral College vote count.

“Indeed, (Kevin Seefried) was not even aware that the electoral count was happening or was happening in the Capitol,” one of his lawyers, Elizabeth Mullin, told the judge.

Mullin, however, conceded that Kevin Seefried is guilty of two misdemeanor charges that he knowingly entered a restricted building and illegally demonstrated in the Capitol.

Hunter Seefried, then 22, may have acted “stupidly” but didn’t intend to block Congress from certifying the election results, defense attorney Edson Bostic said.

Prosecutors didn’t give an opening statement before calling their first witness, a Capitol police inspector.

Kevin Seefried carried a Confederate battle flag from home and was photographed displaying it on a large flagpole as he walked through the Capitol.

“Indeed, the flag that Kevin Seefried carried itself served to signal his intent: the Confederate Battle Flag, a symbol of violent opposition to the United States government,” prosecutors wrote.

Kevin Seefried didn’t intend “to send any kind of message” by carrying the flag into the Capitol and regrets doing so, Mullin said.

McFadden, whom Trump nominated in 2017, has criticized prosecutors’ handling of Capitol riot cases. He suggested that the Justice Department has been unjustly tougher on Capitol riot defendants compared with people arrested at protests against police brutality and racial injustice after George Floyd’s 2020 murder by a Minneapolis police officer.

McFadden also has criticized prosecutors for seeking jail time for some nonviolent Capitol riot defendants but not for left-wing activists who protested Trump’s nomination of Supreme Court Justice Brett Kavanaugh, The Washington Post reported.

In April, McFadden acquitted New Mexico resident Matthew Martin of misdemeanor charges that he illegally entered the Capitol and engaged in disorderly conduct after he walked into the building.

Martin testified that a police officer waved him into the building. A prosecutor rejected that testimony as “nonsense,” but McFadden said it was reasonable for Martin to believe that outnumbered police officers allowed him to enter the Capitol through the Rotunda doors.

In March, McFadden acquitted a New Mexico elected official of engaging in disorderly conduct but convicted him of illegally entering restricted Capitol grounds. The judge said there was ample evidence that Otero County Commissioner Couy Griffin knew he was in a restricted area and didn’t leave. However, McFadden concluded prosecutors didn’t meet their burden to prove that Griffin engaged in disorderly conduct.

McFadden is the only judge to a hold a bench trial for a Capitol riot case so far.

On Tuesday, U.S. District Judge Colleen Kollar-Kotelly is scheduled to preside over a bench trial for Jesus Rivera, a Pensacola, Florida, man charged with four riot-related misdemeanors. President Bill Clinton nominated Kollar-Kotelly to the court in 1997.

At least four other Capitol riot defendants have bench trials scheduled for this year.

Juries have unanimously convicted five Capitol riot defendants of all charges, a perfect record for prosecutors so far. More than 300 other defendants have pleaded guilty to riot offenses, mostly misdemeanors punishable by no more than one year in prison. Approximately 100 others have trial dates in 2022 or 2023. More than 800 people have been charged with federal crimes related to the Jan. 6 attack.

The Seefrieds traveled to Washington from their home in Laurel, Delaware, to hear Trump’s speech at the “Stop the Steal” rally on Jan. 6.

They climbed over a wall near a stairwell and scaffolding in the northwest section of the Capitol and were among the first rioters to approach the building near the Senate Wing Door, according to prosecutors. After watching other rioters use a police shield and a wooden plank to break a window, Hunter Seefried used a gloved fist to clear a shard of glass in one of the broken windowpanes, prosecutors said.

The Seefrieds joined other rioters in confronting Capitol police officer Eugene Goodman and in looking for members of Congress and the location where they would be counting the Electoral College votes for the 2020 presidential election, according to prosecutors.

Goodman, who is expected to testify at the Seefrieds’ trial, has been hailed as a hero for leading a group of rioters away from Senate chamber and up a set of stairs to an area where other officers were waiting. Goodman also directed Sen. Mitt Romney, R-Utah, to turn around and head away from the mob.

(AP)