No Shot at a Fair Trial for January 6 Defendants in the Swamp

The first set of trials for the hundreds of protesters charged in the Justice Department’s sweeping criminal investigation into January 6 begins later this month. Since the Capitol building is considered the scene of the crime, every trial will be held in the District of Columbia—which means the jury pool will be composed solely of residents living in the nation’s capital.

To say this is a problem for Trump supporters facing even minor charges is a huge understatement.

January 6 defendants already have suffered the wrath of D.C.-based federal judges who’ve imposed unusually harsh prison sentences for low level misdemeanors and nonviolent felonies while routinely berating defendants from the bench.

For example, before sentencing a man who pleaded guilty to “parading” in the Capitol to serve 14 days in prison, D.C. District Court Judge Amit Mehta, an Obama appointee, declared that January 6 protesters were “told lies, told falsehoods, told our election was stolen when it clearly was not.” The defendant, Mehta claimed, “was a pawn in a game directed and played by people who should know better.”

Now the fate of hundreds of January 6 defendants is in the hands of biased judges like Mehta and a city populated with government workers who voted nearly 94 percent for Joe Biden in 2020, prompting some defense attorneys to try to move trials out of Washington. In July, a defense lawyer in one high-profile case filed a change of venue motion before Judge Mehta that explained why January 6 defendants could not get a fair trial in such a heavily Democratic, politically obsessed  city. “The level of antipathy towards Trump and his supporters in the District is off the charts and makes it impossible to find an impartial jury,” David W. Fischer, the attorney representing Thomas Caldwell, charged in the multi-defendant Oath Keepers prosecution.

Politicians and the media continue falsely to portray January 6 defendants as racists, Fischer continued, an accusation certain to enrage potential jurors in a city evenly split between blacks and left-wing whites. “President Biden, in a speech ironically advertised as intended to heal America’s racial divide, referred to January 6th Trump protesters as ‘thugs, insurrectionists, political extremists, and white supremacists.’ At his confirmation hearing, Attorney General Merrick Garland pledged to ‘supervise the prosecution of white supremacists and others who stormed the Capitol on 6 January.’”

District residents “largely style themselves as chic, sophisticated, worldly, high-brow urbanites . . . repulsed by rural America’s traditional values, patriotism, religion, gun ownership, and perceived lack of education,” Fischer concluded, and further noted he has heard other D.C.-based defense attorneys refer to Trump supporters as “hillbillies” and “white trash.”

Judge Mehta, who has lived in or near Washington almost all of his adult life and clearly blames Donald Trump for what happened in his hometown last January, took umbrage at Fischer’s description of D.C.’s population as intolerant and hostile to American values.

Admitting the court may encounter difficulties in seating an impartial jury, Mehta nonetheless insisted that he has “never, not once in my time as a judge or a defense lawyer, thought that the people of the District of Columbia who’ve served on juries have done anything other than the job they’ve been asked to, which is dispassionately view the evidence without regard to what the conduct is that’s alleged and who the defendant is.”

Then again, as Mehta and other judges routinely observe, January 6 is a precedent-breaking event.

He denied the motion to move the trial.

Two new surveys, however, prove it will be impossible to find objective jurors in Washington. D.C. residents clearly have their minds made up about what happened that day.

A poll conducted last month by John Zogby on behalf of a January 6 defendant showed that 95 percent of D.C. residents are either very or somewhat familiar with the events of January 6; the majority receive their news about the Capitol protest from national news sources, the same corporate media running a nonstop loop of coverage on the alleged “insurrection.”

Which is why 74 percent of D.C. residents believe anyone who was inside the Capitol building on January 6 should be convicted of insurrection. Sixty-four percent believe that even if someone did not commit a crime of violence that day, the defendant should still be held responsible for other people who did—roughly the same percentage think the four-hour disturbance on January 6 “posed a dire threat to our nation and our democracy.”

Defense attorneys for Gabriel Garcia—arrested over a year ago on several nonviolent offenses related to January 6—commissioned the Zogby poll and cited the results in a change of venue motion before Judge Amy Berman Jackson. “If Garcia proceeds to trial in Washington, D.C., the jury pool in his case would be comprised of those who voted nearly unanimously against Donald Trump and have been barraged with propaganda about a ‘white nationalist’ attack and are continuously told they were victims of an ‘insurrection,’ who were placed under curfew and locked down as a result of danger posed by ‘Domestic Violent Extremists,’” Garcia’s attorney wrote, further noting that Attorney General Garland, who compares January 6 to the 1995 Oklahoma City bombing, approved relocating the bombers’ trial out of Oklahama City as lead prosecutor in the case.

Zogby’s poll is not an outlier. A separate survey by the public defenders’ office representing hundreds of January 6 defendants produced similar results for D.C. residents, but also surveyed jury-eligible residents in metropolitan Atlanta to use as a comparison since the two areas have a similar racial mix. (The 2020 vote in metro Atlanta went two-to-one for Biden. In fact, pollsters admitted they could not find a district even close to the 93-5 Biden margin of victory in Washington, D.C.)

While 76 percent of D.C. residents consider January 6 an “insurrection,” only 55 percent of Atlanta residents would apply the term. Eighty-four percent of D.C. residents have an unfavorable opinion of January 6 protesters versus 54 percent of Atlanta residents who hold that view.

Most D.C. residents consider January 6 protesters “conspiracy theorists” (70 percent); “criminals” (62 percent); and “white supremacists” (58 percent), percentages significantly higher than respondents in the Atlanta survey.

And despite Mehta’s indignation at the suggestion that D.C. jurors will be anything but “dispassionate” and objective, the judge recently said the jury pool for an April trial will need to be roughly twice as large as a typical jury pool—presumably to cast a wider net in the deepest blue city in America.

In any other situation, requests to move a trial out of a jurisdiction that not only holds deep personal antipathy toward the defendants but has been blanketed with nonstop negative news coverage about the accused would be a no-brainer. A jury of peers for January 6 defendants, a Constitutional right, clearly is unattainable.

But Biden’s Justice Department has been reliant on the Beltway trifecta—partisan federal judges, news outlets, and prospective jurors—to codify its punitive prosecution and criminalize political dissent. Prosecutors undoubtedly will object to relocating January 6 trials anywhere outside the Beltway.

How D.C. judges rule on the question will say more about the prejudice of the D.C. judicial system than any poll ever could.

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