WASHINGTON (CN) — A federal judge acknowledged on Tuesday that there could be constitutional problems with the length of time that Capitol rioters have to wait for their trial, as the mass of discovery from the Jan. 6 insurrection is enormous and growing by the day.
“We are working in a discovery no man’s land,” defense attorney Kobie Flowers told U.S. District Judge Paul L. Friedman regarding his client, Paul Russell Johnson.
Flowers filed a motion for Johnson’s case to be severed from his co-defendant, Stephen Randolph, since a joint trial would take too long, and he is worried that Randolph’s more serious crimes could lead the jury to erroneously convict Johnson.
Johnson, of Virginia, and Randolph, from Kentucky, toppled over a police barricade on Jan. 6, causing an officer to fall backwards and suffer a concussion. Randolph then climbed over the metal barricade and began attacking another law enforcement officer, while Johnson pushed more barricades to the ground so the mob could proceed.
“It was fucking fun,” Randolph told the FBI agents who came to his work.
Flowers argues that the government erroneously claimed that Johnson was a member of the right-wing militia group the Three Percenters, and Johnson has no way to clear his name without going to trial. But Johnson has been waiting, and will most likely be kept waiting, due to the sheer volume of rioters that are overwhelming the federal court in Washington. If his case is tied up with Randolph’s, who he does not know, it will take even longer.
“Instead of choosing a smarter way to deal with the root causes that allowed for the events of Jan. 6, 2021, the government chose, in the age of mass incarceration, to charge over 500 people without a plan to respect the Sixth Amendment’s right to a speedy trial for the accused,” Flowers said in his motion to sever.
Friedman pushed back against this argument, saying that the Justice Department and the FBI couldn’t have possibly waited to gather all of their evidence before they started to make arrests.
“We have 671 cases that have common discovery, and it comes from so many different sources — governmental and non-governmental,” he said. “We are also in the age of social media and people say ‘I was on defendant X’s Facebook page and he's’ a relative of mine or he’s the neighbor down the street, and I was surprised that I saw him in the video,’ and they become part of the discovery, The mass of discovery is huge.”
But, the Bill Clinton-appointed judge also acknowledged that the defendants can’t wait around for the government to collect all of the evidence before they get a trial.
“You can’t sit around forever and wait for every piece of discovery and every video from a million different sources, when some of it is only tangentially relevant. But you can’t assume it's only tangentially relevant,” Friedman said. “We may review all of this stuff and say some of it is exculpatory. But it has to end at some point.”
Friedman also acknowledged that in addition to the sheer number of defendants and the astronomical volume of discovery, Covid-19 has played a large role in slowing down the court system and pushing trial dates further and further out. Cases were already backed up prior to Jan. 6, because of the pandemic.
“We are trying to be reasonable,” Flowers said. “We just want to put a trial date in the calendar, recognizing that the date could change. To have no trial date, and simply to be working in a discovery no man’s land, well, it’s a constitutional problem.”
Jan. 6 cases more than doubled the total number of new criminal cases filed in the U.S. District Court in the District of Columbia all of last year, and only 104 defendants have taken guilty plea deals so far.
U.S. District Judge Amit Mehta has also commented on the growing mountain of evidence and the increasing waiting period for a trial, guessing that the trials for the larger Jan. 6 cases won’t be until 2023.
““I have to keep their interests in a speedy trial in mind here,” Mehta said in a hearing last month. “I am concerned about a lengthy pretrial detention period,”
Friedman declined to rule on Flowers’ motion, saying that he would rather hold it in abeyance until the parties discuss how to proceed — and maybe even set a trial date.
Earlier on Tuesday, Kevin Loftus pleaded guilty to one count of unlawful picketing. The Wisconsin man posted a photo of himself smiling and holding an American flag inside the U.S. Capitol on Facebook, with comments, “That’s right folks some of us are in it to win it” and “I am wanted by the FBI for illegal entry.”
Loftus faces up to six months in prison.
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