Trial obstacles arise for Jan. 6 prosecutions

In the nearly nine months since Jan. 6, federal agents have tracked down and arrested more than 600 people across the United States believed to have joined in the riot at the U.S. Capitol.

Getting those cases swiftly to trial is turning out to be an even more difficult task.

Investigators have collected a mountain of evidence in the attack and are working to organize it and share it with defense attorneys. And that mountain keeps growing with new arrests still happening practically every week.

Washington’s federal court, meanwhile, is clogged with Jan. 6 cases, which more than double the total number of new criminal cases filed there all of last year. Further complicating things are limitations the court has put on trials because of the coronavirus pandemic.

The court delays are dragging out a process already called into question by some right-leaning lawmakers, who argue it’s a waste of time and money to prosecute people accused of low-level crimes. As the court cases continue to stall, so do answers to what happened that day and the possibility for consequences from the violent assault. Meanwhile, Democrats in the House are subpoenaing former President Donald Trump’s aides and have requested a trove of documents as a select committee also probes the insurrection.

While it’s not unusual for federal cases to take a year or more to work through the system, some defense lawyers and judges are raising concerns that defendants with a right to a speedy trial may end up waiting a long time before getting their day in court.

“The reason for the delay has not changed or become even remotely concrete. It remains as amorphous today as it was months ago,” an attorney wrote in court documents opposing prosecutors’ request to cancel the scheduled November trial for Timothy Hale-Cusanelli, an ex-Army reservist described by co-workers as a known Nazi sympathizer.

So far, only about 80 cases have been resolved by guilty pleas — largely by those who were charged only with misdemeanor offenses. Scores of others face felony charges including conspiracy, assaulting officers and obstructing an official proceeding that call for lengthy sentences behind bars.

The Justice Department has called it the largest investigation in American history, with probes open in 55 out of 56 FBI field offices. Evidence collected in the attack includes thousands of hours of video footage, hundreds of thousands of tips from the public and more than 1 million Parler posts, replies and data. The Justice Department is building huge databases to share all evidence stemming from the attack with defense attorneys.

In the most high-profile case brought so far, involving more than a dozen members and associates of the far-right extremist group the Oath Keepers, prosecutors recently told a judge that a January trial date for the first set of defendants is looking increasingly unrealistic given how much evidence they still need to get into defense attorneys’ hands.

U.S. District Judge Amit Mehta said if they have to wait until prosecutors turn over “every single scrap of evidence” they’ve collected — rather than just that which relates to a specific defendant — there won’t be trials in any of these cases before 2023. And three of the Oath Keepers defendants, accused of conspiring to block the certification of Joe Biden’s victory over Trump, are behind bars.

“I have to keep their interests in a speedy trial in mind here,” Mehta said. “I am concerned about a lengthy pretrial detention period,” he added. He didn’t immediately rule but signaled that the first Oath Keepers trial would probably be pushed to April, with the second scheduled for July.

At least one of those roughly 70 defendants who are locked up pretrial has already pointed to the delays in an effort to get out of jail. Kelly Meggs, described by authorities as the leader of the Florida chapter of the Oath Keepers, said in an unsuccessful motion for release that with a January trial looking unlikely, he’s effectively being held in “indefinite pre-trial detention which, under the circumstances, is tantamount to a human rights violation.”

Prosecutors say they are working as quickly as possible to share all evidence that could potentially help the defense and keep the cases moving forward.