The preliminary stage of the trial of five Proud Boys charged with seditious conspiracy related to the 2021 US Capitol attack has been a chaotic wind-up that included contentious fights during jury selection, debates over evidence and defense lawyers threatening to withdraw from the case.
But while opening arguments are expected Thursday, the bickering in the courtroom is likely to continue.
Tensions between federal prosecutors, defense lawyers and the judge have grown increasingly hostile and confrontational over the past three weeks, and the judge has repeatedly pushed back the start of the trial to deal with the endless fighting.
District Judge Timothy Kelly delivered a stark warning to all the lawyers on Wednesday: “Everyone take note – you talk over me, and contempt will be coming down the line. It’s going to be a long trial.”
The five defendants – Enrique Tarrio, Zachary Rehl, Ethan Nordean, Dominic Pezzola and Joseph Biggs – have all pleaded not guilty.
The three weeks of courtroom drama began before Christmas with the jury selection process, which was plagued by a constant struggle for prosecutors and defense attorneys to agree on jurors who didn’t have strong opinions on the far-right Proud Boys group.
Some defense attorneys, like Rehl’s lawyer Carmen Hernandez, fought for the dismissal of nearly every potential juror who mentioned previous knowledge, however slight, of the Proud Boys. Other attorneys, including Tarrio’s lawyers Nayib Hassan and Sabino Jauregui, said they were suspicious that people who claimed to not know much about the Proud Boys could be lying so they can get on the jury and find their client guilty.
Wednesday, Kelly mediated fights over potential exhibits. During one heated moment, Hernandez said she would withdraw from the case if Kelly allowed prosecutors to show the jury a specific video.
The video has not been shown publicly, but Hernandez said it was taken before January 6, 2021, and was “highly prejudicial.”
Kelly was not pleased by the inference the lawyer would quit.
“You, Ms. Hernandez, had said something like you were going to withdraw from the case if I didn’t make certain decisions,” Kelly said. “And I want to make it clear that I don’t really care about that… it’s not even clear if I would let you out of the case.”
“It isn’t a threat,” Hernandez replied. “I’m not in the habit from threatening to withdraw from a case.”
Another defense attorney, Nick Smith, said that he too would leave the case over a video the government wants to play for the jury, though Kelly did not address his threat.
Kelly did allow prosecutors to use video of a 2020 presidential debate when then-President Donald Trump said the Proud Boys should “stand back and stand by.” The comments, Kelly said, showed “an additional motive to advocate for Mr. Trump (and) engage in the charged conspiracy” to keep Trump in power.
Roger Roots, a defense lawyer who joined Pezzola’s legal team just before the trial, also got in hot water with the judge. Roots suggested that he planned to tell the jury Pezzola was acting in self-defense on January 6 against police officers who were high on pepper spray.
“I know you just joined the case last week but there is no evidence of that,” Kelly said, telling Roots the time had passed to make any self-defense arguments.
Meanwhile, Biggs’ attorney Norman Pattis had his law license suspended last week for six months.
Pattis, representing right-wing conspiracy theorist Alex Jones in the defamation case brought by parents of victims of the Sandy Hook Elementary School shooting, had improperly released court documents.
The files included two years of Jones’ text messages, medical records from some of the Sandy Hook families and other confidential discovery items.
Kelly has not yet ruled on Pattis’ status, but he did allow two other attorneys who had defended other Proud Boys and therefore had potential conflicts to serve on the case.
Pattis, however, tweeted Wednesday that “six months off sounds good about now.”
The constant turmoil has left some defense attorneys repeatedly asking for the trial to be moved to a different courthouse or further delayed, though they don’t all agree (Smith said he wouldn’t consent to delaying the trial for any reason “up to and including a zombie apocalypse”).
Prosecutors have not been saved from the judge’s scrutiny either – most notably when they claimed they couldn’t provide evidence binders to defense lawyers because their office had run out of dividers, and they hadn’t been authorized to buy new ones.
In the past three weeks, lawyers for the five defendants have repeatedly criticized government lawyers for how they have handled the case.
Hernandez said the prosecutors were acting “immature” and said, “it reminds me of when my kids were little.”
Roots told Kelly that the department was using “cutthroat strategies.”
By Wednesday evening, Assistant US Attorney Jason McCullough asked the judge to reiterate his “order on decorum” in the courtroom.
“We are going to be in front of a jury soon and we need to take this up a couple levels,” McCullough said.