“I have been practicing in this district and in other districts for a long time,” said defense attorney Carmen Hernandez on Jan. 10, at the close of jury selection for five Proud Boys who are now on trial for seditious conspiracy in connection with the Jan. 6, 2021, insurrection. The case is being tried within blocks of the Capitol, the scene of the alleged crimes, in the U.S. District Court for the District of Columbia. “I have represented people charged with [using] machetes to kill [and] dismember persons,” continued Hernandez, who now represents defendant Zachary Rehl of Philadelphia. “I have never, never experienced the level of prejudice and ill-will toward a set of defendants.”
“There must be something in the water here that is new and different,” added defense lawyer J. Daniel Hull a few minutes later, representing defendant Joseph Biggs, of Ormond Beach, Florida, in the same matter. “I feel like … I’m listening to a whole race of people who … talk like Mr. Rogers, Teletubbies, or characters out of Fraggle Rock. I thought it would be bad … but I’m just really kind of amazed it’s been as bad as it is.”
Hull, Hernandez, and defense lawyers for the three other defendants were all begging U.S. District Judge Timothy J. Kelly to transfer the high-profile case to another judicial district. At least two lawyers wanted to send it to the Southern District of Florida, where lead defendant and former Proud Boy chairman Enrique Tarrio is from (Miami), while an attorney for defendant Dominic Pezzola lobbied for the Western District of New York, where Pezzola resided before his arrest (Rochester).
Hull’s ask was less fussy: “Anywhere but here.”
Do they have a point? Frankly, I don’t think so. As we’ll see, the legal standards for requiring transfer of venue are extremely high, and Judge Kelly culled the jury from a 150-person pool in a searching, two-step process that included 10 full days of individual questioning. By my tally, of the 16 ultimately seated jurors—counting four alternates—the defendants did not even lodge any objection to 11 of them, and in only one of the remaining five instances were the defendants unanimous in protesting the juror’s bias. (I do not know which of the jurors are alternates. The general practice in the D.C. courthouse is to keep that information secret—from both the jurors and the public—until the jury retires to deliberate.)
That said, I concede that, if I were a defendant, these 16 jurors—now 15, because one was excused after catching the coronavirus—would not be my dream panel. Although all sitting jurors swore they could put aside anything they’d read or heard before and decide the case solely on the evidence and the law, 13 of the 16 had heard of the Proud Boys; at least five thought the group held “far-right,” “extremist,” or “radical” views; and three of the latter associated the group with “white supremacism.” The defendants vehemently deny that the organization is—or that they are—racist, and defense lawyers frequently highlight to the jury, now that the trial is underway, that Tarrio, the group’s then-leader, self-identifies as Afro-Cuban.
Many seated jurors had also heard or read that the Proud Boys had been involved in the Capitol siege. Juror Two had heard they’d “probably had a hand in the planning of what happened and the attacking of the Capitol that day.” Juror Seven had heard something about the group “storming the Capitol”; Juror Eight remembered its members as having been “down on the Mall that day and making trouble.” Juror Ten had heard the group was involved in the “invading of the Capitol”; and Juror Fourteen had the impression that they had “basically planned this insurrection on the Hill.” Again, however, each averred that these were just “allegations” or their “impressions” from media, and all said they could decide the case based solely on the evidence introduced in court and on the law as it would be given to them by Kelly.
Also troubling from the defense perspective were the empaneled jurors’ political leanings, as glimpsed from their extracurricular activities. Six jurors had participated in liberal-leaning protests or marches, while none mentioned conservative-leaning demonstrations. The protests included, in two cases, “women’s marches”; in two cases, “anti-gun” marches; and, in four cases, protests related to Black Lives Matter or George Floyd’s murder, which, as we’ll see, are of particular concern in this case. One sitting juror had a Black Lives Matter sign in her yard.
So let’s assess what we know about the 15 jurors against the key legal standards for juror impartiality. A careful look might well cause some readers to disagree with my conclusion that the jury is adequately impartial. The question is important because the alleged impartiality of this jury in this case—perhaps the most consequential of any Jan. 6 case brought to date—is almost certain to be an issue on appeal if any defendant is convicted.
Even before jury selection started, the defendants had collectively filed at least 16 submissions seeking to move the case out of Washington, D.C. In those submissions, the defendants raised some of the same allegations that many other Jan. 6 defendants have raised: extensive and prejudicial media coverage; bias resulting from presumptive personal trauma to D.C. residents from the event; the hearings of the House Select Committee to Investigate the January 6th Attack on the United States Capitol, which were said to have fanned the media flames and kept the events from fading from the public’s mind; the ubiquity of federal government employees in this “company town,” as Norm Pattis, co-counsel for defendant Joseph Biggs, has called it; and the district’s unusually homogeneous political hostility toward former President Donald Trump. (President Joseph Biden won 92.1 percent of votes cast in D.C. in the 2020 election.)
I have discussed these issues, including the key pertinent law, in an earlier article, and will not repeat that content here. (See “Escape From D.C.: Analyzing Jan. 6 Venue Transfer Motions.” See also “Are Jan. 6 Defendants Getting a Fair Shake From D.C. Juries? Comparing Jury and Bench Trial Outcomes.”) Suffice it to say, however, that while the Capitol insurrection was a singular and historic event, the American jury system has encountered many notorious and sensational crimes in the past without losing faith in local juries. Federal courts, for instance, allowed a D.C. jury to try the Watergate defendants; a Manhattan jury to try those charged with seditious conspiracy to bomb the World Trade Center in 1993; a Houston jury to try the Enron defendants; and a Boston jury to try the Boston Marathon bomber defendant. The latter bombing—broadcast live on television—killed three and maimed or wounded hundreds, and the defendant and his brother also murdered a police officer three days later while on the lam.
The U.S. Court of Appeals for the District of Columbia Circuit has held that a motion to change venue filed prior to jury selection should nearly always be denied, because the jury selection process will ordinarily be sufficient to weed out partiality. Still, those motions can be renewed after jury selection in the event that the process itself reveals exceptional circumstances. That’s what the defense lawyers were arguing last month: that this was one of those truly extraordinary cases. Defense attorney Pattis at one point called the voir dire “an unendurable farce,” though he later apologized for the remark.
The parties seem to agree that the key precedent at this stage is the 1961 Supreme Court ruling in Irvin v. Dowd. In that case, the Court, in a ruling by Justice Tom C. Clark, looked past the seated jurors’ professions of impartiality and overturned a conviction for failure to grant a change of venue.
That ruling sets out the key on-the-one-hand, on-the-other hand standard that governs this process. The pro-government half of the equation goes like this:
It is not required … that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.
This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court.
But the pro-defense half of the ruling was as follows. On the facts of that particular case, the court found that “the build-up of prejudice [was] clear and convincing,” and the jurors’ professions of impartiality were no longer sufficient. It wasn’t that the jurors were lying, necessarily; it was that they were likely unaware of the extent of their own unwitting bias.
“The influence that lurks in an opinion once formed,” Justice Clark wrote, “is so persistent that it unconsciously fights detachment from the mental processes of the average man.”
The facts of Irvin v. Dowd were, indeed, exceptional. The defendant was accused of six murders in the vicinity of Evansville, Indiana. Although the judge granted a change of venue, he moved the case only to the adjoining district—a rural county of just 30,000 inhabitants. The prosecutor had issued press releases saying that the defendant had confessed to all six murders, and these had been widely amplified in the media. Newspapers further reported that the defendant, in an attempt to avoid a death sentence, had offered to plead guilty in exchange for a sentence of 99 years.
Of the originally convened pool of 430 potential jurors, 370 expressed opinions about guilt and 268 of those were excused for unshakeable views, like, “I think he should be hanged.” Another 103 were excused for conscientious objection to the death penalty, leaving so few—after hardship excusals (“deafness” or “doctors’ orders”)—that a panel of 14 was eked out with virtually no room to spare, according to Clark.
Eight of the 12 jurors finally seated in that case had expressed the view that the defendant was guilty, and one had said, “[I]t would take evidence to overcome their belief,” according to Clark.
Against that yardstick, the Proud Boys case does not seem to measure up to the defense lawyers’ rhetoric. The District of Columbia has a population of close to 700,000, compared to just 30,000 in the rural county in the Irvin case. Kelly started with a pool of 150 prospective jurors and had each of them initially respond in writing to at least 65 inquiries in a questionnaire. Kelly used their responses to winnow out people with clear hardships, manifest bias, obvious trauma from the events, relationships with parties or witnesses, and so on.
Kelly then conducted 10 full days of questioning of the prospective jurors one-by-one in the courtroom—outside the presence of other prospective jurors. In light of their answers, lawyers were allowed to request “strikes for cause”—challenges based on bias—and Kelly granted dozens of those. After culling 45 “qualified jurors,” Kelly then had the parties exercise their peremptory challenges—meaning strikes of potential jurors for which the lawyers did not have to articulate any reason. The prosecution was given eight peremptories, the defense 12; and each side was afforded an additional two peremptories for choosing the four alternates. (The prosecution did not use two of its strikes.)
In this manner, Kelly seated 16 jurors, including four alternates. As mentioned, 11 of the 16 had not been the subject of any objection by any defendant during voir dire. One juror—to whom no objection had been lodged—contracted the coronavirus before the first day of trial and was excused before opening statements.
Before providing sketches below of the 16 final jurors, it’s necessary to explain another important challenge to seating a fair jury in this case. References to Black Lives Matter, or BLM, are an inextricable part of the Proud Boys prosecution. The Proud Boys appear to have used the terms “antifa” and “BLM” almost interchangeably in their private and public statements. In either instance they were referring to their arch enemies. From at least the summer of 2020 forward—the height of protests and riots stemming from the George Floyd murder—violent street brawling against antifa or BLM appears to have become a key Proud Boys activity, if not its raison d’être.
The case involves, for instance, proof of one particular confrontation between Proud Boys and BLM or antifa on the evening of Dec. 12, 2020. That night, after a pro-Trump rally, some Proud Boys ripped down a Black Lives Matter banner from the Asbury Methodist United Church—a historically Black church. In a video—excerpts of which have been shown to the jury—Tarrio watches approvingly as other Proud Boys burn it. (The government is introducing this vandalism to explain, among other things, why defendant Tarrio was not personally present at the Capitol on Jan. 6; he had been arrested on Jan. 4, as soon as he entered Washington, D.C., for the burning of the banner, and had been ordered to leave the city as a condition of release.)
Kelly has barred the government from identifying the burned banner as a BLM banner—the banner’s slogan is not legible from the nighttime video excerpts—or from saying that it was stolen from a church. Still, on one occasion already a witness fleetingly blurted out that it was a BLM sign that was burned, and it’s quite possible that jurors will put one and one together anyway.
Because of the frequent mentions of BLM, jurors were asked what they knew about Black Lives Matter. Every sitting juror had heard of it. That’s not surprising in a city where, in June 2020, the mayor renamed a stretch of 16th Street, in front of the White House, Black Lives Matter Plaza. In fact, she had those words painted across the entire width of the street in letters so large that they stretch two city blocks.
Most jurors expressed positive associations with BLM. As noted above, three said they’d participated in BLM rallies and one said she had a BLM sign in her yard. “They stand for equal treatment and equal justice under the law for black people, which is something that I support,” said Juror Two. Juror Seven understood BLM to be “for human rights, having equal rights with everybody else.” “It’s a movement that is focusing on systemic racial injustice and seeking to address those things and bring more attention to it,” said Juror Eleven. “Their motto is Black Lives Matter,” said Juror Eight. “As a black man, I guess I have some interest in that.”
According to my visual estimate, six of the 15 jurors are Black. I can’t confidently determine race visually, but at one point—ruling on a different issue—Kelly described nine of the 15 jurors as white—suggesting that my estimate is within a range of what the court also says.
That said, several jurors did evince some negative takes on Black Lives Matter. “It’s for obtaining equality for black people, but I don’t know if their message has been distorted,” said Juror One. Juror Four had heard that “some of the [BLM] funds were misappropriated,” and Juror Five had seen “a couple scandals about them, like not spending the money they’ve earned and their executives are buying expensive things.” Jurors Six and Nine said that, for them, “all lives matter,” which is a phrase one sometimes hears from those skeptical or critical of the movement. Juror Sixteen volunteered that BLM was something that “sort of took over Washington” and he then connected it to “regular vandalism over on my avenue.”
Here are short summaries of what emerged during voir dire about the 16 jurors finally selected for the Proud Boys case. Kelly has kept their identities secret from the public, though the attorneys know their names. Information about what they do, or did do, for a living was not always elicited during the voir dire questioning.
Juror One: White woman. She is a social media marketer and the daughter of congressional staffers. On the Proud Boys: “an organized group as opposed to people who showed up at the rally and then moved to the Capitol. … My impression is that it was just more violent intent.” She had heard of defendant Tarrio. On BLM: “It’s for obtaining equality for black people. But I don’t know if their message has been distorted.” Objections for cause: All defendants except Ethan Nordean.
Juror Two: White woman. She is an attorney in the Office of the Inspector General of the Internal Revenue Service. On the Proud Boys: “My understanding is it’s generally white supremacy and maybe some of the more far-right radical, far-right beliefs. I definitely don’t agree with them [but] they are entitled to their beliefs. … I remember hearing that they probably had a hand in the planning of what happened and the attacking of the Capitol that day.” On BLM: “They stand for equal treatment and equal justice under the law for black people which is something that I support.” She has a BLM sign in her yard. Other: She has participated in “women’s marches” and “some on gun violence. Those are my issues.” Objections for cause: All defendants except Nordean.
Juror Three: Black woman. Works for the Smithsonian’s command center operations, which she considered “sort of law enforcement.” On the Proud Boys: “I don’t recall exactly what it was.” On BLM: Went to a BLM rally in May 2020. No objections.
Juror Four: Black man. On the Proud Boys: Never heard of them. On BLM: “Some of the funds were misappropriated. It’s a movement obviously.” No objections.
Juror Five: White woman. Former legislative staff assistant at the Capitol, 2011-2013. On the Proud Boys: “I believe I read coverage of them playing a role in the incidents that occurred on January 6th. … I do believe it’s Republican leaning. And maybe “radical” … I’ve read some white supremacist connections to the Proud Boys exists.” On BLM: “Throughout June 2020 and 2021 … they were organizing in several cities and states … to support local … and national racial equity organizations. … I saw a couple scandals about them, like not spending the money they’ve earned and their executives are buying expensive things … I don’t know enough about about the organization to draw a conclusion. But the movement I do support.” Objection for cause: Defendant Joe Biggs alone objected.
Juror Six: Black woman. Manages a group home for the disabled. On the Proud Boys: Never heard of them. On BLM: “To me, all lives matter.” No objections.
Juror Seven: White man. On the Proud Boys: “The only thing that really stands out in my mind is … seeing the footage on television, storming the capitol.” On BLM: It’s “for human rights, having equal rights with everybody else. … I believe in Black Lives Matter. That I fully believe in.” Objection for cause: Defendant Rehl alone objected.
Juror Eight: Black man. Retired installer, technician, and supervisor at Verizon. On the Proud Boys: “A paramilitary group … down on the Mall that day and making trouble.” Had heard that defendant Tarrio met with Stewart Rhodes, leader of the Oath Keepers, in a parking garage prior to Jan. 6. On BLM: “Don’t know much. Just that their motto is Black Lives Matter. As a black man, I guess I have some interest in that.” No objections.
Juror Nine: Black man. On the Proud Boys: Never heard of them. On BLM: “For me, all lives matter.” Heard of BLM when “the gentleman in Minnesota died.” No objections.
Juror Ten: Black woman. Retired information technology (IT) specialist who had worked at the Library of Congress on Capitol Hill. On the Proud Boys: Heard “they had some form of helping to formulate or—maybe formulate is the wrong word—but had involvement in the invading of the Capitol.” On BLM: “It’s based on George Floyd and his case and police brutality and the efforts to bring about equal justice for minorities, particularly … African American minorities.” No objections.
Juror Eleven: White man. Attorney in the D.C. Office of Administrative Hearings. On the Proud Boys: “I associate the Proud Boys with a more conservative movement [and] libertarian thought. … I’m sure there are a lot of things I might disagree with, but, bottom line, I just don’t know enough … to really have strong opinions.” On BLM: A movement “stemming from police brutality against black individuals, so … focusing on systemic racial injustice and seeking to address those things and bring more attention to it.” He participated in a BLM rally through his church. Other: “I’ve shifted on the political spectrum over the years.” He listens to “CNN and Fox to be exposed to all viewpoints … I have family backgrounds on my side and my wife’s side on different ends of the political spectrum.” No objections.
Juror Twelve: White woman. Student at George Washington University studying applied economics and currently working as a data consultant. On the Proud Boys: “My only understanding is its connection to white supremacy.” On BLM: “It intends to put a focus on the inherent value of the lives of black people in light of, historically, black lives mattering less than others.” Other: Participated in a protest in D.C. after the death of George Floyd. Objections for cause: All defendants.
Juror Thirteen: EXCUSED ON FIRST DAY OF TRIAL DUE TO COVID-19. White woman. Project management adviser at the Pan American Health Organization. On the Proud Boys: “Very conservative group. … might have played a role in inciting some of the violence that occurred. … From what I read or heard … they played a very … specific role in what was happening.” On BLM: “I live in D.C., right. So there’s … a lot going on, right, in the last year or so. Police violence … targeting, profiling.” No objections.
Juror Fourteen: White man. Lobbyist for the American Geophysical Union. On the Proud Boys: They “are labeled as an extreme, like, far-right organization. … There’s allegations that they, like, basically planned this insurrection on the Hill.” On BLM: “An organization that is trying to highlight the discrimination against people of color especially with relations to police interactions.” No objections.
Juror Fifteen: White woman. Communications associate at Population Action International, a nonprofit specializing in reproductive health. On the Proud Boys: “Don’t know much. … Would say they disagree with me on most things.” On BLM: Generally aware of “their work following certain instances of police brutality … I’ve also heard of fragmentation within the organization. … Some calling out leaders … for ‘hypocrisy.’” Other: Attended a women’s march and a protest following George Floyd’s murder. “I assume [BLM] had something to do with” the latter. No objections.
Juror Sixteen: White man. CEO of membership organization relating to health IT and patient records. Married to an attorney in the Office of the Comptroller of the Currency. Proud Boys: They have fairly strong opinions [from] a conservative point of view … I disagree [with those views].” … They were “alleged to have been involved in the January 6th event.” BLM: “That was something that sort of took over Washington … that was another situation where there was regular vandalism over on my avenue.” Other: “I have an opinion about firearms … and I personally do not support them.” No objection.
Two final observations about the jury and the defense challenges to it. First, the political affiliation of the jurors is not in the record. The attorneys know the jurors’ identities, however, and voting registration—to the extent a juror chooses to align with a party—is public information.
Sabino Jauregui, an attorney for defendant Tarrio, alleged in argument last month before Kelly that “every juror is a Democrat.” Assistant U.S. Attorney Erik Kenerson pushed back on that claim, stressing that party affiliation is not in the record and noting that when Juror Five worked as a legislative aide, she did so for Republican members of Congress.
Legally, it’s unclear whether party affiliation is relevant to jury selection. In the Watergate case referenced earlier, five of the six judges on the en banc panel expressed caustic skepticism “that voting patterns are at all relevant to venue.” The sixth judge, however, would have reversed those convictions based on failure to move the trial to another district, citing, among many other factors, Washington’s “overwhelming concentration of supporters of the Democratic Party.”
Last month, in denying the defendants’ motions to transfer venue, Kelly stressed he had effectively inquired about the jurors’ “political valence” on his questionnaire, by inquiring whether they had such strong feelings about the 2020 election that they couldn’t be fair. “From my memory,” he said, there were “very few potential jurors who indicated that they felt so strong[ly] about the election that that was something we had to probe further.”
The final point relates to the defense argument that jurors must not be taken at their word in this case when they profess an ability to be fair. In response to that contention, Kelly stressed—and the record confirms—that he did not just take jurors at their word. “There were occasions where someone said … they could [be fair] and I struck them anyway. So it wasn’t a situation where just a person mouthing the words was convincing to me that they could be fair.”
On jury selection matters, the U.S. Supreme Court has accorded trial judges extraordinary leeway in assessing the impartiality of jurors. As Justice Clarence Thomas wrote for the Court less than a year ago in the Boston Marathon bomber case:
We have repeatedly said that jury selection falls “‘particularly within the province of the trial judge.’” … That is so because a trial “judge’s appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record,” such as a “prospective juror’s inflection, sincerity, demeanor, candor, body language, and apprehension of duty.”
Given the legal standards laid out in Irvin v. Dowd and the long-standing deference to the trial judge in matters of jury selection, Kelly’s refusal to transfer venue in the Proud Boys case seems within his discretion.
While it’s easy to understand why defendants would prefer to be tried on their home turf, that’s never been a consideration entitled to any weight at all. The Constitution contemplates that defendants will generally be tried in the state and district where the alleged crime occurred. The mere fact that a juror has been exposed to media coverage of a spectacular and infamous crime is not disqualifying. On the contrary, “those best qualified to serve as jurors” most likely will have been so exposed, the Supreme Court has recognized. The question is whether those individuals can put their preconceptions aside. Kelly has, after questioning each juror at length, concluded that these jurors can. Accordingly, he has empaneled a jury that seems to pass muster under all controlling precedents.
My Opinion – The News And Times 
