The first criminal trial arising from the Jan. 6, 2021, attack on the Capitol is set to begin this week, but defendant Guy Wesley Reffitt of Texas won’t be the only person facing a public verdict once proceedings begin.
Seeking to move their cases or at least their trials elsewhere, defense counsel say the pool of potential jurors in the nation’s capital is hopelessly tainted. Their reasons cited include pretrial publicity; the large presence of federal employees; and the fact that the heavily Democratic city voted for President Biden over President Donald Trump by a greater share in the 2020 election than residents in any other federal court division.
“District residents see themselves as victims of the events which transpired on January 6th,” attorney James E. Monroe summarized last year in seeking a change of venue for Thomas Webster, a former New York police officer and Marine veteran who has pleaded not guilty to assaulting police with a metal pole bearing the Marine Corps flag.
Claims that an entire jury pool harbor “extreme prejudice” and even hostility toward a defendant are not unusual in high-profile prosecutions. Judges routinely reject them on the bedrock principles that defendants face trial where a crime occurs and that skilled lawyers and judges can weed out and prevent juror bias — even in notorious cases such as the 2013 Boston Marathon terrorist bombing or politically sensitive ones such as those in the Washington area concerning top advisers to presidents.
The attack on the Capitol came after a rally outside the White House, at which then-President Trump urged supporters to march to Congress. Pro-Trump rioters injured scores of police officers and ransacked Capitol offices, forcing the evacuation of Congress and temporarily halting its certification of Biden’s 2020 election victory.
In support of their claims, some Jan. 6 defendants cite data — at least in the form of opinion surveys by reputable pollsters hired by defense jury experts — showing that while 80 percent of D.C. residents think defendants will receive a fair trial in the District, 1 in 5 admit that they would have their doubts if they were the ones charged, and 1 in 10 don’t believe trials will be fair.
Common sense suggests that D.C. is “uniquely unlikely to produce an impartial jury as the Constitution demands,” and data now shows that most potential jurors have “made up their minds that the January 6 defendants are criminals,” argued assistant federal defenders Ann Rigby and Elizabeth A. Mullin, seeking to move the case of accused Colorado paramilitary training group operator Robert Gieswein. They requested the 25-year-old’s case be moved closer to his home in more Republican-friendly Woodland Park, Colo.
Mullin and Rigby cited a January telephone poll of 400 randomly dialed jury-eligible District residents, which found that 71 percent said they thought charged individuals are guilty based on what they had heard or read, and 85 percent would describe those who entered the Capitol as trying to overturn the results of the 2020 election.
Both results were about 15 percent higher in Washington than in the Atlanta division of the U.S. District Court for northern Georgia, a demographically similar urban area where a second random sample of potential jurors was drawn. The surveys, commissioned by the Federal Defender’s Office of the District for indigent Jan. 6 defendants and conducted by Harrison Hickman, pollster for Al Gore’s 2000 and John Edwards’s 2004 and 2008 presidential campaigns, had a margin of error of five percentage points. The results reinforced similar findings by a less-scientific online poll of D.C. respondents conducted by longtime pollster John Zogby for a Miami-based defendant.
In Reffitt’s matter, U.S. District Judge Dabney L. Friedrich in October rejected a request to move the case of the Texas man, who is accused of transporting firearms to D.C. for unlawful use in the Capitol attack and threatening his children if they turned him in to authorities. But the judge said Reffitt’s defense could ask again if many potential jurors are disqualified for potential prejudice during jury selection.
The question is not what potential jurors know about the Capitol breach or think about defendants in general but whether they are so biased against an individual that they cannot be impartial in deciding his or her charges, said Friedrich, a Trump appointee who previously served as a federal prosecutor, Senate Judiciary Committee staffer and White House associate counsel for George W. Bush.
Reffitt to date had not “demonstrated that the jury pool in this district is presumptively biased against him,” the judge said.
As a result, Reffitt’s prospective jurors Monday will be the subjects of a kind of trial-within-a-trial, scrutinized by both parties and the wider public, with potential ramifications for Capitol breach defendants to come. A second judge will hear arguments Tuesday by attorneys for the Florida defendant who commissioned Zogby’s poll, Gabriel A. Garcia.
In a response filed in Gieswein’s case late last week, U.S. prosecutors listed court precedents finding that private statements made to and reported by pollsters paid by one side are no reliable substitute for a judge’s comprehensive, recorded, face-to-face questioning of citizens under oath, before lawyers from both sides.
Jan. 6 defendants are no more unpopular in Washington today, prosecutors added, than the top aides to President Richard M. Nixon. A federal appeals court confirmed those aides could face trial in D.C. in 1974 in the coverup of the Nixon presidential reelection campaign’s break-in of Democratic National Headquarters at the Watergate office building.
Matthew Graves, the U.S. attorney for Washington, D.C., declined to comment on Reffitt’s or any pending case in a recent interview. But when asked, he vigorously defended the courts’ time-tested process for vetting prospective jurors.
“I certainly think that January 6 defendants, like any of the other defendants that are charged in this jurisdiction for other crimes, can receive a fair jury trial here,” said Graves, whose office is overseeing the Capitol siege prosecution. “We have a jury pool that is up to any charges that may be put before them and … a bench that will go through a [selection] process to make sure that the jury consists of individuals that will not let any personal views shape their impressions of the evidence, and that will follow the instructions provided by the courts.”
Reffitt’s case poses an intriguing test of the process. Reffitt, 49, is a former oil industry employee who prosecutors say joined and recruited for the right-wing extremist group Three Percenters. He is the only defendant charged with transporting a rifle and a semiautomatic handgun for unlawful use in a riot, including the holstered silver handgun he allegedly wore at the Capitol.
He has pleaded not guilty to that and four other charges of obstructing an official proceeding, witness tampering, trespassing and interfering with police in a civil disorder after prosecutors say he was hit by police rubber bullets and chemical spray while rushing the Capitol.
Unlike most other alleged members of the Three Percenters, Oath Keepers and Proud Boys who have been charged, Reffitt insisted last fall on going to trial and not waiting for the government to process and turn over massive amounts of evidence in the case. Unlike others, he also declined to require prospective jurors to answer in writing a lengthy and detailed questionnaire probing their views beforehand.
Reffitt’s court-appointed attorney, William L. Welch III, declined to comment. But in court hearings he has said that oral, in-person questioning by Friedrich and lawyers from both sides — called voir dire — will be sufficient. Welch also has noted that his client has insisted on a fast trial over his advice.
“Most of the jurors, when they’re asked, are [likely] going to indicate that they have been affected” by the events of Jan. 6, Welch argued, saying that no District residents “live more than eight miles” from the U.S. Capitol and would have been affected by street closures, security barricades and deployment of National Guard troops. “That is in their face, so to speak, as a daily reminder, and not just something that is in the news.”
Reffitt’s prosecutors say physical reminders of the Jan. 6 attack are long gone, that defendants are not entitled to a completely ignorant jury nor one with as many Trump supporters as critics, and that publicity of the rioting was beamed nationwide, not just locally.
“The Supreme Court has been clear that prominence does not mean prejudice, and impartiality does not mean ignorance,” Assistant U.S. Attorney Jeffrey S. Nestler said. “Just because residents here in the District are aware of what happened at the Capitol on January 6 … does not mean that the defendant would be prejudiced by having a trial here or could not get a fair jury here.”
Several defense lawyers in Jan. 6 cases privately questioned the risk of being the first to go to trial, while others said it is a strategic mistake not to screen potential jurors fully in writing. By waiting, defendants tried later may learn much about the strength of the federal government’s evidence, strategy and presentation; how judges and D.C. juries react; and possible verdicts and sentencing on conviction.
But Shanlon Wu, a former D.C. federal prosecutor who represented a key cooperator in the special counsel investigation into Trump’s Russia ties, called the timing question “a wash,” because the government can hone its approach, too. Still, he “strongly disagreed” with not questioning prospective jurors in writing.
“That’s the kind of data you really want” to understand how people are responding, particularly in cases with joint defense agreements where some clients have yet to go to trial, Wu said.
No judge in a Jan. 6 case so far has ruled in favor of a venue change. Over the decades since Watergate, both Republican- and Democratic-appointed judges in the capital region have refused to move trials for presidential advisers, including the recent cases of Trump 2016 campaign chairman Paul Manafort and Trump political confidant Roger Stone. Manafort was convicted of financial crimes and Stone of lying to Congress as part of a special counsel probe, before Trump pardoned them.
Trump himself controversially fanned partisan attacks against Stone’s judge, jurors, federal prosecutors and the judicial system as biased, despite warnings by his attorney general, William P. Barr, to stop tweeting about Justice Department criminal cases.
The Supreme Court appeared ready at oral arguments last fall to reinstate the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev, after a three-judge panel of the U.S. Court of Appeals for the 1st Circuit agreed with his lawyers that the judge overseeing his 2015 trial did not adequately question potential jurors for bias in the case.
One of the few publicized cases in which a federal judge in Washington moved a trial turned out badly for the government. In 1978, a D.C. federal jury convicted a top aide to Mayor Walter E. Washington and a millionaire real estate developer and parking lot owner of bribery, finding that the official approved a lucrative government lease for the businessman in exchange for a secret loan and other personal financial favors.
U.S. District Judge Gerhard A. Gesell declared a mistrial, however, after learning of irregularities in the jury selection process. He moved the case to Philadelphia, where jurors were less impressed with the largest federal bribery case brought against the newly elected local D.C. government in Washington, acquitting both men.