WASHINGTON (CN) — A federal judge refused Tuesday to declare a mistrial in the case against Enrique Tarrio, leader of the far-right Proud Boys organization, and four of his lieutenants who are accused of seditious conspiracy in connection with the Jan. 6, 2021, Capitol riot.
The tumult erupted over video evidence that shows a confrontation between police and rioters in a tunnel on the west side of the Capitol building as members of Congress were holding a ceremony to certify that Joe Biden won the 2020 election.
While the defendants were not physically near the tunnel at the time, prosecutor Conor Mulroe said there is one rioter shown in the video who could be considered a co-conspirator.
Defense attorney Nicholas Smith meanwhile said admitting the video would be “totally inappropriate” as there has been no evidence that the indicted Proud Boys wanted to use others to commit acts of violence on Jan. 6.
Crediting the government’s proffer that prosecutors will connect the video evidence to their case-in-chief, U.S. District Judge Timothy Kelly said jurors could see the video. Smith, who represents Ethan Nordean, a Proud Boys chapter president from Auburn, Washington, moved for a mistrial, which the Trump-appointed judge denied.
Jurors then heard testimony from Capitol Police Inspector Thomas Lloyd, who initially took the stand last Friday as the government’s first witness.
Lloyd said the west tunnel eventually became overrun by rioters, and police had to pull back as there was a “battle there for a while.”
During cross-examination, Smith asked Lloyd to clarify his testimony last week that, if rioters had breached a door leading to the U.S. Senate chamber during the siege, then “more than likely there would have been gunfire.”
Asked who would have done the shooting, the witness said it would have been “either my officers or the vice president’s detail.”
“If they breached those doors,” Lloyd said, “it was a very good possibility.”
Smith then asked if Capitol Police are trained to open fire on unarmed demonstrators inside the Capitol. Lloyd, a 30-year veteran of the Capitol Police force, said no.
“The use of deadly force is a personal decision,” the witness said, adding that he cannot give guidance or advice regarding use of deadly force to a subordinate in any circumstance.
Asked if he believes an officer should have opened fire at the time, Lloyd said, “only if the officer feels that using deadly force is the last option to protect members of congress, the vice president or anyone else.”
When asked if he would have opened fire, Lloyd walked around the question, telling the jury he was not one of the officers stationed in that area at the time.
One rioter, Ashli Babbitt, died after a Capitol Police officer shot her as she attempted to crawl through a broken window inside the building. She was among five people who died either during, or as a result of, the riot.
Tarrio and Nordean are standing trial alongside self-described Proud Boys organizer Joseph Biggs, of Ormond Beach, Florida; Zachary Rehl, former president of the Proud Boys chapter in Philadelphia; and Dominic Pezzola, a Proud Boys member from Rochester, New York.
The five defendants are accused of leading a coordinated attack on the Capitol in an attempt to keep former President Donald Trump in power. The indictment alleges they “directed, mobilized and led members of the crowd onto the Capitol grounds and into the Capitol, leading to dismantling of metal barricades, destruction of property, breaching of the Capitol building, and assaults on law enforcement.”
They each face nine charges, including one count of seditious conspiracy and one count of conspiracy to prevent an officer from discharging any duties. Pezzola is also facing a robbery charge. Each defendant has pleaded not guilty to their respective charges.
A seditious conspiracy charge requires prosecutors to prove that the defendants had an actual agreement to oppose the U.S. government by force. Convictions on this count carry a 20-year maximum sentence.
Tarrio is not accused of physically breaching the Capitol building on Jan. 6, but prosecutors said during opening arguments that he was aware that day of a plan to breach the building, including discussions about occupying buildings within the Capitol complex.
Defense attorneys meanwhile insisted the defendants never had an actual plan to attack the Capitol on Jan. 6 and that former President Trump should be blamed for inciting the crowd that stormed the building.
Jury selection for Tarrio’s trial began on Dec. 19, three weeks after two members of a similar far-right group, the Oath Keepers, were convicted of Capitol riot-related seditious conspiracy. In the same courthouse, another four members of the Oath Keepers are being tried separately on the rare charge. Closing arguments in that case are expected to begin on Wednesday.
The government has so far charged approximately 950 people in connection with the Capitol riot. As of Jan. 6, about 364 people had pleaded guilty to misdemeanors, and about 119 had pleaded guilty to felonies. Approximately 192 people have been sentenced to prison time.
Tarrio’s trial is expected to resume Wednesday.
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