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Wednesday, March 27, 2024 | Back issues
Courthouse News Service Courthouse News Service

Capitol rioters increasingly going it alone, rebuffing counsel

Judges and standby counsel strongly discourage a pro se defense, with experts noting that the prosecution nearly always wins, and it is a logistical nightmare — especially from jail. 

WASHINGTON (CN) — Detained since June as he awaits trial for assaulting police in the Jan. 6 insurrection, Brian Mock made a rookie mistake in court last month when he asked for a second detention hearing.

“I have found flat-out lies, fraud,” Mock told U.S. District Judge James E. Boasberg. “At this point I can't prove all of it. This is not me being crazy, not me being some extremist.”

Boasberg had to remind Mock multiple times, however, that the procedure he needs to follow is a motion for bond review. There is no such thing as a second detention hearing — something a lawyer could have told him. 

Mock, who shoved two police officers to the ground during the riot, claims he hasn’t been properly represented by his public defender and wants to represent himself so that he can bring forward evidence of FBI misconduct and conspiracy. Before traveling to Washington for the insurrection, Mock would write on Facebook later, he had said goodbye to his four children in Minnesota, accepting that his bid to overthrow the U.S. government could cost him his life.

“In rare circumstances, there is sympathy from a juror,” explained Bill Purpura, a criminal defense attorney in Baltimore, regarding pro se representation. “But normally it’s a complete failure, especially if they adopt the ‘sovereign citizen’ theory.”

The conspiracy theory is one started by a group of anti-government extremists who purport to be “sovereign” from the United States — meaning not subject to any government authority, and are free of any legal constraints — despite living there.

One prominent Jan. 6 defendant who has bought into the theory is Pauline Bauer, who is not accused of engaging in any violence at the Capitol riot but is being jailed pending trial because she refuses to comply with simple release conditions and repeatedly argues with the judge during her hearings. Calling herself a sovereign citizen, the Pennsylvania pizzeria owner has refused a public defender and regularly snubs input from her standby counsel.

“I am Pauline from the house of Bauer. I am a woman and a living soul,” Bauer said at her last hearing, going on to quote from the Bible and reaffirm that she will not abide by release conditions.

The government's case against Capitol rioter Pauline Bauer includes these three photos of her in the crowd at the Jan. 6 insurrection. (Image via Courthouse News)

All of the motions Bauer had filed thus far, consisting of hundreds of pages of gibberish, have been quickly dismissed by U.S. District Judge Trevor McFadden.

“You have a powerful advocate on your behalf, whether you want her or not,” McFadden said to Bauer regarding Bauer's standby counsel, Carmen Hernandez. 

Bauer allowed Hernandez, after spending a week in lockup, to file a motion to reconsider detention. At the ensuing hearing, however, she began by insisting that Hernandez does not speak for her and refused to read from the legal brief Hernandez had prepared.

McFadden sent Bauer back to jail, where she will likely remain until her trial. 

“In these cases, like Carmen has, you have some people who have some very extreme ideas,” Purpura said in a phone interview, referring to Hernandez. “And the sovereign citizens movement may appeal to them with their extreme bends.”

Judge McFadden is presiding over the prosecution of another Capitol rioter who has been denied bond in Washington ahead of trial. Coming away from two weeks in the jail library, Brandon Fellows told the court he planned to represent himself against five criminal counts, including a felony that carries up to 20 years in prison.

“Although, as Justice Blackmun says, I may be a fool to represent myself, I am nowhere near as big a fool as Joe Biden,” Fellows told McFadden, before asking the judge how to pronounce “pro se,” the Latin term indicating self-representation. 

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Fellows had previously been granted pretrial release, but McFadden ordered the New Yorker back into custody after he left obscene voicemails for his pretrial services and once called her mother, unnerving both the officer and her mother. 

“I strongly urge you not to represent yourself,” McFadden told Fellows. “There are significant downsides to you being the one who is making split-second decisions on courtroom issues.”

In another Jan. 6 prosecution, another adherent of the sovereign citizens movement has told the court that representing himself comes at a steep price. Eric Bochene filed a motion charging the government $75,000 per hour for legal services, $50 million for blood, urine or other bodily samples, and a host of other fees. 

“The court is unclear exactly what relief Defendant seeks,” U.S. District Judge Randolph D. Moss wrote in reply. “To the extent Defendant is seeking payment for appearing in Court, that argument lacks merit.”

Purpura says that there are a slew of opinions where judges poke fun at the sovereign citizen defense, and sometimes invoke a far heftier sentence because it was used. “It’s absurd, it’s crazy, it’s nonexistent gibberish,” Purpura said. “It’s not your intelligent defendant who adopts this defense.”

Bochene routinely stamps his pseudo-legal documents with a red fingerprint — one of the many symbols that sovereign citizens use in an attempt to tap into an supposed alternate identify that the government set up for them at birth and unlock their own personal secret Treasury account.  

From lack of experience to the danger of self-incrimination, the reasons why legal experts recommended using a defense attorney are myriad. A big consideration, though, is that defendants who are locked up pretrial have an even harder time mounting their case than those who are out on bond — as there are massive hurdles to reviewing discovery from jail, and logistical barriers to filing motions. 

“It is not practicable for detained defendants to review the volume of electronic discovery pertinent to this case,” Hernandez wrote in her motion to reconsider Bauer’s detention, referencing an update on the conditions in the Washington jail from federal defender A.J. Kramer, who said there is a four- to six-week waiting period to review discovery on the jail’s laptops. 

Jan. 6 defendants — or their lawyers — need to review dozens, if not hundreds, of hours of videos from body-worn cameras, Capitol cameras and smartphones. It simply isn’t practical for someone to prepare for a trial with this amount of evidence from inside a cell, many defense attorneys for Capitol rioters have argued in their motions to get their clients out of jail pending trial. 

Without an attorney, it’s even harder. 

Since the government puts the sensitive discovery material on an online, password-protected platform, standby counsel, like Hernandez, have to download the material and put it on a CD or flash drive to mail to Bauer — as Bauer can’t access the platform herself. And, when a defendant files a motion, they need to mail it into their standby counsel first, who will submit it on their behalf. 

“I hold here mail from August that I only got on September 16,” Fellows told McFadden at his hearing, complaining about the speed of jail mail. “D.C. mail is the opposite of Amazon Prime.”

When Fellows asked if there was a more convenient way, McFadden responded he didn’t think so. 

"This is one of the many hardships that I imagine you will find in representing yourself,” McFadden said. 

Zachary Alam, who smashed the glass pane of Capitol door and screamed “Fuck the blue!” in a police officer’s face, also seeks to represent himself, and demanded that prosecutors offer him a plea deal during his hearing in July. Alam remains locked up pending trial.

“They're not going to be successful,” Purpura said. “But, then again, neither was the Capitol riot.”

Categories / Criminal, Law, Politics, Trials

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