WASHINGTON (CN) — Just weeks out from Enrique Tarrio's seditious conspiracy trial in connection with the Jan. 6, 2021, Capitol riot, the leader of the far-right Proud Boys told a federal judge that he can't get a fair trial in Washington.
U.S. District Judge Timothy Kelly appeared unlikely to grant the motion, however, telling Tarrio's attorney that he faced an “uphill climb.”
“Not just because the case law seems to set a pretty high bar,” the Trump appointee said, but also because the trial set to begin on Dec. 12 needs only a dozen people, and there are more than 600,000 potential candidates in the Washington-area jury pool.
Kelly emphasized that the core question for potential jurors will be whether they can set aside any feelings about the case and judge the defendants based only on facts and law.
“And given the track records so far of [Jan. 6] cases,” the judge continued, “I think you have an uphill battle.”
Tarrio’s counsel pressed on undeterred, arguing that “there’s no way that Mr. Tarrio can find a fair and impartial jury” in Washington because potential candidates “lived in this case.”
“They lived it for months; they follow it daily,” defense attorney Sabino Jauregu said, insisting that the proximity of Washington residents to the attack and to what they faced in its aftermath — road closures, fences around government buildings and temporary military occupation in the city — make their experience significantly different than Americans outside of the capital.
Jauregu argued that district locals already hold a negative opinion toward his client because there has been in-depth media coverage of the public hearings of the House Select Committee on the Jan. 6 Attack and a separate lawsuit in which Tarrio pleaded guilty to burning a Black Lives Matter banner during a pro-Trump rally at a historically Black church.
One juror in the ongoing seditious conspiracy trial of five members of the Oath Keepers, another extremist right-wing group, even admitted to having heard an NPR segment referencing the trial while en route to the courthouse last week, Jauregu noted.
“The same thing is going to happen here in this case,” he said, “even more so.”
After the juror confirmed he could still be impartial, saying he had stopped listening after briefly hearing the mention of the Oath Keepers, the presiding judge allowed the juror to stay on the panel.
Judge Kelly pushed back on the media argument Friday by pointing out that various media sources are as “equally available to a person sitting in D.C [as they are] to a person sitting anywhere in the United States.”
“It’s hard for me,” the judge said, “to … think the media environment makes this a tricker question than it was back in the day.”
Jauregu also pointed out that the government has obtained convictions in each of the Jan. 6 cases that has gone before a jury so far — something the defense attorney described as a “victory” for the government.
Judge Kelly noted, though, that there are not many cases in the Washington federal courthouse where “every aspect of the crime is captured on a video tape from like seven different angles.”
“I think that’s a counterpoint to the conviction rate,” Judge Kelly said.
While Tarrio may be more well-known than other Jan. 6 defendants, Judge Kelly said the argument that Washington residents are more biased because of their proximity to the attack fails because what happened on Jan. 6 applies to everyone — not just potential jury candidates in the nation’s capital.
As for the civil lawsuit Tarrio faces from the church where he burned the flag, Kelly found such media coverage irrelevant because it is not related to Jan. 6.
“In many ways,” Judge Kelly said, the defense’s media argument actually “cuts against” the reasoning to transfer venue because it is not hyperlocalized.
“The coverage, the saturation for people that want it, you can access all the media that comes out of Washington — the national media — anywhere in the country,” Judge Kelly said. “I don’t know how that helps you.”
“It does judge,” Jauregu insisted, “because the residents of D.C., with their liberal views and their leftist views and the Democratic views, are more likely to tune into to social media … [and] TV personalities that align with their views.”
If the judge does not find the negative publicity sufficient to warrant a transfer in this case, Jauregu insisted that no case “in the future will ever be transferred … because the amount of negative publicity in this case is unparalleled to any other case, specifically in D.C.”
Judge Kelly said he would take the motion under advisement.
Tarrio appeared at Friday's hearing via video teleconference, having been incarcerated March when he was indicted alongside four other members of the Proud Boys. The defendants are accused of conspiracy to obstruct Congress’ certification of the 2020 election, among other charges. In June, the government brought a third superseding indictment that adds a seditious conspiracy charge, which carries a maximum sentence of up to 20 years behind bars.
Also named in the third superseding indictment are Ethan Nordean, 31, of Auburn, Washington; Joseph Biggs, 38, of Ormond Beach, Florida; Zachary Rehl, 36, of Philadelphia; and Dominic Pezzola, 44, of Rochester, New York.
A seditious conspiracy charge carries a maximum sentence of 20 years in prison. It requires prosecutors to prove that the accused Oath Keepers had an actual agreement to "overthrow, put down, or to destroy by force" the U.S. government.
The Justice Department so far has charged more than 880 people in connection with the Capitol riot. As of Oct. 6, about 313 people have pleaded guilty to misdemeanors, about 99 have pleaded guilty to felonies. Approximately 152 people have been sentenced to prison time.
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