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Cop who rioted at Capitol faces testimony from officer who joined him

A key witness in the government's case against Capitol rioter Thomas Robertson was supposed to be his co-defendant.

WASHINGTON (CN) — Two off-duty Virginia police officers who stormed the Capitol together were set to go to trial as co-defendants this week, but one took a plea deal and provided key testimony Wednesday against the other, his former supervisor.

"In the time that you have known Mr. Robertson, have you known him to use a walking stick?” Assistant U.S. Attorney Risa Berkower asked Jacob Fracker, a 30-year-old former patrolman with the Rocky Mount Police Department, referring to Thomas Robertson.

“No,” said Fracker, who agreed last month to cooperate with the government in exchange for his own charges being dropped.

The walking stick Robertson brought to the Jan. 6, 2021, riot at the U.S. Capitol is a contested piece of evidence in his trial. While the defense insists it is merely a tool that helps the 49-year-old Robertson get around due to injuries from military service in Iraq, the government argues it is a dangerous weapon Robertson used to block police during the insurrection.

In addition to her focus on Robertson's walking stick, Berkower grilled Fracker on the witness stand Wednesday about Robertson's insistence that he had no intention of delaying congressional proceedings when he went to the Capitol on Jan. 6. At the time, both chambers of Congress were meeting to certify the results of the 2020 presidential election.

Robertson claims he entered the Capitol, walked around to find Fracker, retrieved him, then left. Fracker, on the other hand, says he and Robertson had already agreed before they entered the Capitol during the riot that they would try to delay congressional proceedings and assist each other in doing so.

The pair were supposed to be sitting next to each other in Washington federal court this week before Fracker's plea deal. 

“Did he go in there to find you and take you out of the building?” Berkower asked.

“If he did, I was unaware of that,” Fracker said.

Berkower also dissected the defense’s claim that, once they were reunited, Robertson wanted to leave as soon as possible and remarked to Fracker, “let’s get out of here.”

“If he did, I don’t remember,” Fracker said.

Asked what happened in the aftermath of the riot, Fracker said they were both notified they had outstanding arrest warrants on Jan. 13, 2021, and Robertson invited Fracker over to his house that day so they could turn themselves in together. 

When Fracker came over, he said Robertson asked for his phone and then placed it in an ammunition can along with his own device before they headed to the police station.

“What was your understanding of why you gave him your phone?” Berkower asked.

“Essentially so I wouldn’t get caught with incriminating photos and videos,” Fracker replied.

He also confirmed that the FBI conducted search warrants at their homes and were unable to locate the cellphones.

The prosecutor then asked if Robertson offered to pay Fracker in the days following the riot.

Fracker said Robertson paid him $30,000. It is not clear what the payment was for, but prosecutors remarked in opening statements on Tuesday that, “at the very same time that they were being booked by law enforcement, the defendant offered to give Mr. Fracker money.”

The off-duty police duo were fired by the Rocky Mount Police Department as of Jan. 10 before their arrests. Fracker faces up to five years in prison, as well as a fine of up to $250,000. He is scheduled to appear in court for a status conference on April 28.

U.S. District Judge Christopher Cooper, an Obama appointee, is presiding over Robertson's trial. The defense is expected to begin cross examination on Thursday. 

Robertson has pleaded not guilty to six charges: obstruction of an official proceeding and aiding and abetting; civil disorder and aiding and abetting; entering and remaining in a restricted building or grounds; disorderly and disruptive conduct in a restricted building or grounds; disorderly conduct in a Capitol building and obstruction of an official proceeding related to tampering with evidence.

Elsewhere in the federal courthouse on Wednesday, a former defense contractor was acquitted of all four charges against him related to the Capitol riot.

After a two-day bench trial, U.S. District Judge Timothy McFadden, a Trump appointee, sided with Matthew Martin’s defense that Capitol Police officers permitted him to enter the Capitol during the riot.

Martin, of Santa Fe, New Mexico, holds security clearance and took leave from his job at a defense-contracting company that works with the federal government to attend pro-Trump demonstrations in Washington on Jan. 6, 2021.

In an interview with an FBI agent on Jan. 20, 2021, Martin admitted he entered the Capitol after police officers had “started letting people into the building.”

“According to Martin, Capitol guards opened the doors to the Rotunda and let them in, though Martin did acknowledge seeing smashed glass,” the government said in court filings.

As prosecutors saw it, Martin should have known he was not supposed to enter the building because at the time, there were smashed window panes in the Rotunda, alarms were blaring throughout the building and police were on both sides of the doorway into the building.

Martin was arrested in September and charged with four misdemeanors: entering and remaining in a restricted building; disorderly and disruptive conduct in a restricted building; violent entry and disorderly conduct in a Capitol building; and parading, demonstrating, or picketing in a Capitol building.

The judge’s decision comes less than two weeks after the Justice Department secured the convictions of Guy Reffitt on all charges and of Couy Griffin on all but one — Griffin was acquitted of disorderly conduct.

More acquittals from this first slate of Capitol riot trials could deter plea deals, while more convictions could have the opposite effect.

More than 775 people have been charged so far in connection with the riot, and at least 200 have pleaded guilty to mostly misdemeanor charges that carry a maximum sentence of six months’ imprisonment.

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