Wednesday, December 13, 2023

Here’s the ‘Jan. 6 Jurisprudence’ About to Be Unleashed on Trump

'[The jury] hated us with a passion...'

(Julie Kelly, RealClearInvestigations) Defense attorneys have coined the term “January 6 Jurisprudence” to describe the treatment received by the more than 1,200 defendants arrested so far in connection with the events of Jan. 6, 2021.

This carve-out legal system involves the unprecedented and possibly unlawful use of a corporate evidence-tampering statute; excessive prison sentences and indefinite periods of pretrial incarceration; and the designation of nonviolent offenses as federal crimes of terrorism.

A universal feature is the requirement that a Jan. 6 defendant, usually a supporter of Donald Trump, face trial in Washington DC, a city overwhelmingly populated by Democrats. Federal judges have denied every change of venue motion filed in Jan. 6 cases, arguing those who protested at the Capitol can get a fair trial in the nation’s capital.

The results so far appear to contradict the court’s collective conclusion. Court records show the jury selection process has repeatedly revealed a strong degree of bias against anyone tied to Jan. 6. At least 130 defendants have been convicted at trial – not one has been acquitted by a jury – and hundreds have been sentenced to prison time ranging from seven days to 22 years.

Defense lawyers say this track record helps explain why the vast majority of defendants have opted for a plea deal rather than go to trial.

This is the same environment that now awaits the former president as he prepares to stand trial in Washington on March 4, 2024 for election interference, in addition to an array of criminal and civil cases against him elsewhere.

While Special Counsel Jack Smith’s team and Trump’s counsel spar over a number of issues, perhaps the biggest dispute will concern whether it will be possible to seat an impartial jury for the presumptive 2024 GOP nominee in a city that voted 92% for Joe Biden in 2020.

After Smith indicted Trump in August, a Jan. 6 defense attorney who is not representing the former president, J. Daniel Hull, told the New York Times that Washington “is the worst possible place for any Jan. 6 defendant, but especially Donald Trump, to have a trial.”

U.S. District Court Judge Tanya S. Chutkan recently set a jury selection schedule for Smith’s four-count indictment against Trump for the events of Jan. 6. She ordered both parties to begin developing a questionnaire, due Jan. 9, 2024, that hundreds of D.C. residents will be asked to complete so the court can begin the initial step of weeding out unqualified jurors.

Stakes are high for both sides. Trump’s lawyers must navigate constraints on how many jurors can be stricken from consideration to ensure their client gets a fair trial. The Department of Justice must convince the American people that a case brought by a Democratic administration and handled by a Democratic-appointed judge with a record of inflammatory statements about the former president will be heard by unbiased jurors.

The Sixth Amendment guarantees, among other rights, “the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed.” In extreme cases, criminal defendants can petition to move their trial out of the prosecuting jurisdiction for a number of reasons, not the least of which is sustained, negative press coverage that taints the jury pool.

Trump’s lawyers are not discussing their strategy publicly, but sources have indicated to RealClearInvestigations that the defense will file a change of venue motion in the next month or two. Given the partisan composition of Washington, saturation coverage of the former president’s ongoing legal woes, and the city’s relatively small population, Trump will have a strong argument in favor of moving the trial outside of the nation’s capital.

Yet a review of Jan. 6 cases to date suggests the odds are against that. Not a single judge on the D.C. District Court has granted a change of venue motion even for high-profile trials such as those for members of the Oath Keepers and the Proud Boys, the so-called “militia” groups involved in the Capitol protest.

Despite nonstop local news coverage and nationally televised proceedings of the Democrat-run January 6 Select Committee that, in some instances, mentioned the defendants by name, Judge Timothy J. Kelly repeatedly rejected motions to move the Proud Boys’ seditious conspiracy trial out of Washington.

One month before jury selection began, Kelly acknowledged in a November 2022 order that the five defendants “have been the subject of more particularized and extensive media coverage than most January 6th defendants, in part because of the House Select Committee’s hearings this summer.”

Nonetheless, Kelly, a Trump appointee, denied the defendants’ last-minute attempt to seek relief in another venue by noting, “the brighter spotlight on Defendants does not support transfer, mainly because the pretrial publicity here is national in scope, available to anyone across the country with access to a television or the internet.”

Jury selection lasted several days, an anomaly for Jan. 6 trials. Despite the lengthy process, the panel still included several D.C. residents who disclosed participation in Democratic protests, including Black Lives Matter and the Women’s March, according to one court observer’s report.

After a four-month trial and six days of deliberation, the jury convicted the defendants in May on multiple charges while returning not-guilty verdicts on a handful of other offenses, including impeding police officers. One juror told Vice News that he and his cohorts unanimously concluded in less than a day that four of the five defendants were guilty of seditious conspiracy, an exceedingly rare charge traditionally reserved for individuals tied to foreign terror groups.

“[The jury] hated us with a passion,” Joseph Biggs, one of the Proud Boys found guilty of seditious conspiracy and other charges, told RCI in an interview from his jail cell in September. “They wanted to see us die. One of them said he wanted to see us buried under the jail.”

Despite the individual’s stated desire to see the defendants dead, he was seated on the panel.

Judge Chutkan’s handling of her first jury trial for a Jan. 6 defendant, Russell Alford, also indicates how Trump might fare. Alford was charged in March 2021 with four misdemeanors for his 11-minute nonviolent walk through the Capitol.

In rejecting Alford’s bid to move his trial, Chutkan downplayed the partisanship of D.C. residents and surveys that indicated higher-than-average prejudice against Capitol protesters.

In her April 2022 order, Chutkan insisted that “jurors’ political leaning are not, by themselves, evidence that those jurors cannot fairly and impartially consider the evidence presented and apply the law as instructed by the court.” She also claimed an “expanded examination will effectively screen for prejudice among potential jurors in this case.”

A review of court transcripts, however, raises questions as to whether Chutkan fulfilled her promise. A jury questionnaire exposed a bias so strong against Jan. 6 protesters that half the respondents were automatically eliminated from consideration. Many who remained were also problematic.

After one day of voir dire, which is the direct questioning of potential jurors, Chutkan still allowed individuals who expressed critical views about anyone involved in Jan. 6 to serve on the panel. One juror said people who were at the Capitol on Jan. 6 “were probably guilty.” Another who worked as an investigator for federal agencies, including DHS and TSA, admitted he had “strong feelings about the individuals who gathered at the Capitol on January 6.”

Chutkan rejected a defense attorney’s request to remove that juror from consideration.

“I’m going to deny it because he said he has training; he’s by nature trained to be skeptical. He has an opinion, but it appears that he is willing to confine his verdict to the evidence presented in the case,” she said.

Did People Lie to Get on Jan. 6 Juries?

A staffer for Sen. Ben Ray Lujan, a Democrat from New Mexico, also got the nod, despite telling Chutkan he knew many Capitol police officers – several of whom are routinely called as government witnesses in Jan. 6 trials – and his confession that the day was “pretty impactful” on him.

On several occasions, Chutkan reassured the skeptical defense team that the selected jurors would set aside personal feelings to objectively weigh the evidence.

The jury returned unanimous guilty verdicts on all counts in less than four hours.

Alford now wonders whether jurors were being honest. “They told us what we wanted to hear so they could get on the panel,” Alford told RCI by phone from a halfway house last month. He had just finished serving 176 days of a 12-month prison sentence imposed by Chutkan. “In any other jurisdiction, we would have won. We thought we could get a fair shake, but they all were connected to the government.”

Alford’s experience is not an outlier. Post-trial interviews with jurors have often revealed bias. In a lengthy discussion with C-SPAN’s Brian Lamb following her service on an Oath Keepers’ trial earlier this year, a woman named Ellen, a former co-worker of Lamb, described how she desperately tried to get selected as a juror. When she finally was selected, Ellen admitted she “was shocked beyond belief.”

Over the course of several days of deliberations, Ellen said she successfully persuaded reluctant jurors to render guilty verdicts against the six defendants, including a 72-year-old who didn’t enter the Capitol and an autistic young man. She worked in tandem with a juror who had worked as a lawyer for the Department of Justice, the same government agency prosecuting the defendants. “How that was allowed, I’ll never know,” Ellen told Lamb. “He couldn’t believe it.”

Ellen also expressed disdain for the people on trial. “They weren’t even from big cities. These were people from, living, on farms in rural places, most of them had no concept of Washington, D.C.,” she told Lamb.

Democrat Mosby’s Change of Venue 

The situation was quite different, however, for a former Democratic elected official recently on trial in neighboring Maryland. A grand jury indicted Marilyn Mosby, the former state’s attorney for the city of Baltimore, in 2022 on four counts of perjury related to COVID fraud.

Her lawyers asked the judge to move the trial, set to begin on Oct. 31, 2023, out of the Baltimore area to the southern district of Maryland based on studies that uncovered higher levels of bias among prospective jurors in the northern district, the location where the trial was set to take place.

The analysis, conducted by Trial Innovations, Inc., evaluated “relevant newsprint, television, and social media coverage” and determined that “the Northern Division jury pool has been saturated with prejudicial coverage surrounding the Defendant.” Telephone interviews of eligible residents in the two districts also revealed distinct disparities. For example, 62% of respondents in the northern district had read, seen, or heard of Mosby compared to 42% in the southern district.

Nearly half of the respondents in the northern district considered Mosby “somewhat” or “very” corrupt compared to roughly one-quarter who had the same response in the southern district.

In granting Mosby’s motion in September, Judge Lydia Kay Griggsby concluded that “pre-trial publicity about this case has, to a degree, negatively impacted the views held about the Defendant by potential jurors residing in the Court’s Northern Division more so than their counterparts in the Southern Division.” (Mosby was convicted on all counts on Nov. 9.)

Defense surveys in Jan. 6 cases point to the same, if not higher, level of prejudice among D.C. residents.

A May 2022 survey compared attitudes between Washington residents and those living in areas of Florida, North Carolina, and Virginia. While 85% of D.C. residents consider Jan. 6 an “insurrection, attack, or riot,” only 41% of Florida residents agreed with the description. Seventy-two percent of D.C. respondents were more likely than not to find a Jan. 6 defendant guilty, as opposed to 48% of respondents in Virginia and North Carolina and 37% of Florida respondents.

Forty percent of D.C. residents believe the events of Jan. 6 were racially motivated, while less than 20% of the respondents in the three other states believed so.

Unlike the judge overseeing the Mosby matter, D.C. judges are unmoved by such disparities.

While overall public interest in Jan. 6 has waned nearly three years later, it remains a campaign issue for Democrats and a top news story in the nation’s capital. The Washington Post maintains a “January 6 Insurrection” portal on its website, providing updates on Trump’s trial and other proceedings related to the Capitol protest. CBS News’ Washington affiliate has a full-time reporter assigned only to cover the events of Jan. 6.

Jury selection for a November 2023 trial indicated little change in prospective jurors’ intensely negative views about Jan. 6. Voir dire for the trial of Taylor Johnatakis, a man from Washington state charged with multiple offenses for his participation in the Capitol protest, showed a sustained level of prejudice against Jan. 6 defendants. Five of the first 10 individuals were excused after confessing they could not fairly assess the evidence or follow the judge’s instructions to set aside their opinion to reach a verdict.

One man, a historian for the American Historical Association, admitted he had written columns describing Jan. 6 as an “insurrection.” A public school teacher told the judge she uses Jan. 6 as a “teachable moment” for her special needs students and that she still discusses the issue with her fellow educators. Another woman works for a provider that offered mental health services for who she described as “traumatized” police officers who were “victims” of Jan. 6. (All were struck for cause.)

Some seated jurors recalled their emotional reaction to that day. One woman, who has been on disability for 13 years, said she “burst out crying” when she watched events unfold at the Capitol. (Johnatakis, who represented himself, was convicted on all counts after just a few hours of deliberation.)

Court watchers say such attitudes will make it especially hard to seat a fair jury for the most controversial figure in America, Donald Trump.

It is difficult to contemplate how the government and Chutkan will get around years of hyper-critical coverage of Trump – not just related to Jan. 6 but stretching back to claims Trump illegally colluded with Russia to rig the 2016 election and every investigation in between.

Still, it is highly unlikely that Chutkan will consent to Trump’s request to move the trial to another jurisdiction. She will, as she did in Alford’s case, note that court-ordered venue changes are rare, even in trials of wide public interest. (She compared Alford’s trial to that of Boston Marathon bomber Dzhokhar Tsarnaev, where the judge refused to move his trial out of the city.)

There are, however, exceptions. In 1996, a federal judge moved the trial of Oklahoma City bomber Timothy McVeigh and Terry Nichols to Denver. After considering intense news coverage of the deadly attack and its impact on the community, Judge Richard Matsch concluded: “There is so great a prejudice against these two defendants in the State of Oklahoma that they cannot obtain a fair and impartial trial at any place fixed by law for holding court in that state.”

The change of venue request was not opposed by the lead prosecutor in that case – Merrick Garland, who now oversees the DOJ as Attorney General of the United States.

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