WASHINGTON (CN) — Among the smattering of Capitol riot cases where defendants who have pleaded not guilty are heading to trial, Jeffrey McKellop has been incarcerated for seven months with no trial date in sight.
U.S. District Judge Carl J. Nichols agreed that getting Jan. 6 cases to trial quickly appears unlikely at a hearing Monday where McKellop lobbied for pretrial release him while the government sorts through thousands of hours of video evidence.
“This case is essentially languishing. It’s not anyone’s fault, it’s just a fact,” Nichols said, referencing the unprecedented amount of discovery in 670 cases connected to the insurrection that is pushing trial dates further and further out. “It doesn’t seem to me like I can make a reasonable prediction about when this trial will even happen.”
In an already clogged court, many defendants have complained about — and federal judges have expressed concern over — the mountain of discovery.
“There’s a significant change in circumstances which I don’t think any of us predicted: how long these cases are going to go on,” McKellop’s defense attorney Katrina Young told Nichols. “He is being indefinitely detained.”
The government's complaint against McKellop contains nearly four dozen images of the 55-year-old defendant wearing a helmet, tactical body armor and gas mask on Jan. 6 when he assaulted several law enforcement officers — pushing one, throwing a bottle at another and wrestling away a can of riot-control spray from yet another. At one point, McKellop stabbed an officer with a flagpole and then threw the flagpole at him like a spear, injuring the officer near his eye. The entire episode, with multiple assaults, only lasted a little over two minutes.
McKellop, a decorated U.S. Army veteran who served for over 22 years, including four tours in Iraq and Afghanistan, never entered the Capitol.
“He should have known better,” Nichols said of the Virginia man incarcerated in February and denied pretrial release in March. “One would think that if they respect the rule of law, they wouldn’t throw a flag at law enforcement.”
As Young remarked that, but for the “weird” circumstances of Jan. 6, McKellop wouldn’t be in this situation, the judge offered a solution.
“Why don’t we just go to trial?” Nichols asked, citing what "seems to be a lot of pressure on the system where we are both detaining defendants and not getting them all of the materials the government is producing.
Young responded that they wouldn’t be prepared to go to trial without the additional discovery, some of which might be exculpatory. Prosecutors also said they weren’t ready. The government filed its opposition brief on Oct. 18.
“I’m between a rock and a hard place,” Young said, telling Nichols that not knowing when he is going to go to trial has taken a huge toll on McKellop psychologically — especially because he is unsure of when he is going to be able to see his children again.
Nichols said he will decide on McKellop’s pretrial release motion shortly.
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