Jenny Cudd, a 36-year-old florist and former mayoral candidate from Midland, Tex., has been indicted on five counts including obstruction of an official proceeding, trespassing, disorderly conduct, and parading, demonstrating or picketing in the Capitol building.
“Pretrial publicity and community prejudice in Washington D.C. is so likely to have affected the jury pool that the [entire panel] must be presumed as tainted,” Cudd’s attorney Marina Medvin argued.
“The facts of this case center around Donald Trump and his supporters. The evidence in this case is emotionally political in every respect,” the Alexandria attorney wrote. “But the jury who would hear the facts in Washington D.C. is the most politically prejudiced jury in the entire country” against Trump.
Cudd and co-defendant Eliel Rosa were charged Jan. 12 and arrested a week after the riot that left five dead, forced the evacuation of the Capitol and disrupted Congress’s confirmation of the presidential election. Cudd faces charges that carry a maximum of 20 years in prison.
Cudd’s motion for a venue change is believed to be the first brought by a defendant among the more than 300 people federally charged so far. Federal law usually requires that defendants be tried where a crime occurred, and the U.S. attorney’s office and FBI field office for Washington have spearheaded the sprawling investigation.
The U.S. District Courthouse in Washington sits three blocks from the Capitol and draws from a D.C. jury pool whose more than 330,000 voters overwhelmingly favored President Biden over Trump, Cudd’s defense noted. The Democrat won 92 percent of the city’s vote in November. By contrast, the 144,000 voters in six counties in the Midland-Odessa division of the Western District of Texas favored Trump over Biden 77 percent to 22 percent.
“This astounding lack of political diversity is unique to the jury pool for the District of Columbia,” Medvin asserted, adding, “Moreover, this lack of political diversity in the [jury pool] comes at a time when politics have divided Americans at exceptional levels.”
Medvin said potential jurors have been barraged with propaganda by elected officials and news outlets about the incident, accusing them of extending a “race-baiting narrative” against Cudd. Medvin said it has become second nature for Democrats “to refer to Trump supporters as ‘white supremacists.’ ”
Medvin argued that D.C. residents and jurors would also be prejudiced against Capitol riot defendants because of security measures imposed after Jan. 6, including the ongoing deployment of National Guard troops.
Cudd, who ran as a political outsider and won 15.6 percent of Midland’s vote in 2019 after campaigning on growth issues and who protested pandemic restrictions last year, gained notoriety after Jan. 6 for a Facebook live stream in which she announced, “We did break down . . . Nancy Pelosi’s office door.”
Draped in the Trump flag she’d worn inside the Rotunda and Statuary Hall, Cudd said she “charged the Capitol today with patriots,” adding, “Hell yes, I am proud of my actions.”
Cudd later said in a local television interview that critics including those who turned her in to the FBI were trying to “cancel me because I stood up for what it is that I believe in.” The backlash, she added, “is 100 percent cancel culture.”
Cudd’s attorney amplified that claim, calling potential D.C. jurors “polluted by the city’s political culture” and asserting that a guilty verdict “could be readily based on pretrial media affiliation of Ms. Cudd with ‘white supremacy,’ ” whatever the facts.
Medvin also complained of media coverage of Cudd’s successful request last month to travel to Mexico for a four-day work-related bonding retreat for employees and spouses.
“How many [potential jurors] will disobey . . . the social pressure to punish Ms. Cudd for being politically incorrect?” Medvin asked.
Federal judges have agreed to move trials the past. In the 1995 Oklahoma City federal building bombing, Timothy McVeigh was convicted and sentenced to death in Denver after a judge ruled that the “emotional burden of the explosion and its consequences” tainted the community’s jury pool.
A federal appeals court last year vacated the death sentence of 2013 Boston Marathon bomber Dzhokhar Tsarnaev, citing insufficient attention to potential juror bias after a judge declined to change venue, but it let stand his convictions and life sentences. The Justice Department has appealed.