OPINION:
Some Jan. 6 defendants are citing research firm surveys of Washington juror pools to expose biases, they say, that would prevent them from receiving fair trials.
Not surprisingly, survey answers show how the heavily Democratic, government-centric city is in line with how elected Democrats view the Republican Trump-supporting protesters and their Capitol Building invasion. One defense attorney labeled Washington a place of “extreme community prejudice” with “an absolute lack of political diversity” and “tribal political landscape.”
There is at least one high-profile non-Jan. 6 criminal case unfolding in the same U.S. federal courthouse that tapped the city’s same voter pools to select a jury. Former Hillary Clinton campaign lawyer Michael Sussmann is on trial for allegedly lying to the FBI while spreading anti-Trump propaganda.
In this case, Mr. Sussmann sold the FBI on launching an investigation into what he claimed was an ongoing secret cyber communication link. The players, he said, were former President Donald Trump and Russia’s Alfa Bank, an oligarch-controlled commercial lender.
The FBI decided in early 2017, several months after Mr. Sussmann presented his spreadsheets, that the conspiracy did not exist. The rub is, the Republican-appointed special prosecutor John Durham argues, Mr. Sussmann portrayed himself to the FBI as a concerned private citizen and concealed the fact he was selling the Alfa conspiracy for the Clinton campaign.
What got conservative social media talking about D.C. juries last week is the fact that campaign donors to Mrs. Clinton — in other words Hillary loyalists — sat among the jury pool.
Mr. Trump won just 5% of the D.C. vote — his lowest tally of any electoral college member — compared with 92% for President Biden. At the time, Mr. Trump’s job approval in D.C. stood at 12%, 18 points lower than Massachusetts, his worst polling state, according to SurveyMonkey.
“I think Durham’s biggest problem from beginning to end is that Washington jury,” National Review legal analyst Andrew McCarthy said on the “Brian Kilmeade Show.”
Several Jan. 6 defendants want their cases moved to another jurisdiction. One is Enrique Tarrio, leader of the Proud Boys whose members were among those who crashed the Capitol. Mr. Tarrio, a Black Cuban American, was not in D.C. that day.
“Tarrio, as the face and symbol of the Proud Boys, has received the Democratic party’s seething hatred, which cannot be contained, mitigated, or controlled,” his attorneys argue in a court brief filed this month. “Tarrio stands for the antithesis of leftist liberal ideology and must be crushed, destroyed and canceled by the left-leaning members of the jury pool of Washington D.C.”
Lawyers also wrote, “In this atmosphere of extreme community prejudice and D.C.’s tribal political landscape, a fair trial for Tarrio is impossible. … There is an absolute lack of political diversity in D.C. that is sui generis in our political system.”
Attorneys Sabino Jauregui and Nayib Hassan want the case moved to Mr. Tarrio’s home turf of southern Florida.
Plumbing the minds of D.C. voters is a key pre-trial tactic by Jan. 6 defendants Thomas Caldwell and Connie Meggs, both members of the ultra-patriotic Oath Keepers. They want their trial moved across the Potomac River to the Alexandria, Virginia, courthouse.
The federal public defender office in D.C. commissioned the firm Select Litigation LLC to assess the jury pool. It did two comparative polls — one of D.C. and the other of Atlanta.
“Prospective jurors in the District of Columbia have decidedly negative impressions of individuals arrested in conjunction with the activities of January 6, 2021,” Select Litigation said in a report filed in court. “Their bias against the defendants is evident in numerous results and is reflected in a significant prejudgment of the case: a clear majority admit they would be inclined to vote ‘guilty’ if they were serving on a jury at the defendants’ trial.”
One of the big political selling points by the Biden White House, elected Democrats and the Biden Justice Department is that the Jan. 6 protesters are guilty of an insurrection. The survey shows that the D.C. pool of voters who make up juries overwhelmingly back that argument, with 76% agreeing.
Mr. Caldwell’s attorney, David W. Fischer of Glen Burnie, Md, and Juli Z. Haller, Ms. Meggs’ Washington attorney, retained Lux Research to back their change of venue motion to ensure the Constitution’s Sixth Amendment rights to an “impartial jury.”
Lux selected four “test areas” — D.C., Florida, North Carolina and Virginia — to survey jury-qualified people.
“Results from the Study show that the DC Community’s attitude is unique among the Test Areas — and is decidedly negative toward Defendants,” Lux said. “The study shows that the DC Community is saturated with potential jurors who harbor actual bias against defendants.”
There have been two Jan. 6 jury trials. A jury deliberated just two hours before convicting Guy W. Reffitt, a member of a hard-right Texas citizens group, on all charges.
In April a jury convicted Dustin Thompson after less than three hours of deliberations.
Defendant Matthew Martin of Santa Fe, New Mexico, also went on trial that month, but chose a judge, not a D.C. jury, for a verdict.
Judge Trevor N. McFadden found him not guilty of all charges after two days of testimony. Mr. Martin faced a similar list of charges of hundreds of other Jan. 6 defendants: entering a restricted building, disorderly conduct, and demonstrating and parading inside the Capitol.
Judge McFadden, a 2017 Trump appointee, said it was not unreasonable for Mr. Martin to assume he was let into the building by police.
Judge McFadden previously convicted another Jan. 6 defendant, a member of Cowboys for Trump, for entering the Capitol illegally.
In an odd way, prosecutor Durham and Jan. 6 defendants share the same fear: a D.C. jury. But for decidedly different reasons.
• Rowan Scarborough is a columnist with The Washington Times.
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