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The January 6 trial for Guy Reffitt that will set the standard for hundreds to follow

Capitol riots
Posted at 9:38 AM, Feb 05, 2022

Washington — Nearly 740 individuals have been charged for allegedly participating in the Jan. 6, 2021 attack on the U.S. Capitol, a CBS News count reveals. Only 240 have entered guilty pleas, leaving more than 500 defendants whose cases have yet to be resolved.

One Texas man is set to be the first of those to fight the charges at a trial by jury, testing the evidence uncovered by the Justice Department's sprawling investigation into the breach. And he will do so in the face of an unprecedented health crisis.

Guy Wesley Reffitt of Wylie, Texas — husband, father of two teenagers and alleged affiliate of the Three Percenters militia group — has been indicted on five counts. He's accused of transporting a rifle and a semi-automatic handgun to Washington, D.C., and then carrying the handgun onto U.S. Capitol grounds, where he allegedly participated in the Jan. 6 riot and threatened law enforcement officers. He's one of only a handful of defendants accused of carrying a firearm.

He is also charged with obstruction of justice, illegally entering the Capitol complex, and obstructing Congress' counting of the 2020 Electoral College votes — a process that ultimately affirmed the election of President Joe Biden.

Reffitt pleaded not guilty to all five counts and has made a number of unsuccessful attempts to have some of the charges dismissed; he has claimed that the laws he is accused of breaking are "vague" and violate his constitutionally protected freedom of speech.

His attorney did not respond to CBS News' request for comment.

Reffitt has written a letter to the judge presiding over his trial, Dabney Freidrich, declaring that the idea that there were crimes committed at the Capitol on Jan. 6 is a lie.

"When all the lies and hyperbole have been peeled away, the world will know the truth. There was no insurrection, no conspiracy, no sinister plan and no reason to think otherwise," Reffitt wrote.

Prosecutors from the U.S. attorney's office in Washington, D.C., will try to prove otherwise on Feb. 28, when Reffitt's trial begins.

"The Department of Justice needs to win this case," former federal prosecutor Scott Fredericksen told CBS News. "If it loses this case, if it messes up in any way, there's going to be huge criticism of the Department of Justice. DOJ would look bad."

According to a review of court filings and pretrial hearings, prosecutors will use open-source and surveillance videos, text messages, and various testimony — including from Reffitt's own children — to try to prove their case.

Prosecutors plan to try to show Reffitt targeted two lawmakers, House Speaker Nancy Pelosi and then-Senate Majority Leader Mitch McConnell, and that he planned to try to remove them from the Capitol. The government also alleges that Reffitt, with his gun holstered at his waist, charged two U.S. Capitol Police officers, who struggled to push him back before finally stopping him with pepper spray.

Investigators later found a similar holster on his bedroom nightstand. Reffitt, however, claims he wasn't armed and objects to the government's proposed use of the FBI agent as a witness.

Reffitt, according to court documents, described his run-in with police "in a covertly recorded conversation, shortly after the attack."

Prosecutors will likely present that conversation and others like it at trial, along with some of the tens of thousands of evidence files from the investigation. As of November of 2021, the government had made available to Reffitt's defense team over 23,000 files of surveillance and body-worn camera video depicting the scale of the attack.

Investigators are not only interested in the crimes Reffitt is accused of committing on Capitol grounds on Jan. 6, but are also examining his conduct before and after the attack.

In late December, a family member told the FBI that Reffitt was "'going to do some serious damage'' related to federal legislators in Washington, D.C.," according to government filings.

Once in the nation's capital, according to the government's memo in support of pretrial detention, Reffitt allegedly messaged that he was doing "recon" of the Capitol area and would "surveil the atmosphere for like-minded Patriots and see if we have enough marching with heat."

And after he allegedly participated in the Capitol attack, investigators say Reffitt then traveled back to Texas, where his two teenage children and wife live, and talked about his membership in the mob that overran the Capitol.

Reffitt allegedly told his son and daughter, "If you turn me in, you're a traitor and you know what happens to traitors...traitors get shot," according to conversations investigators had with Reffitt's spouse as described in court documents. "Reffitt's son took Reffitt's statements as a threat to his life," prosecutors wrote in another court filing.

"The defendant's son and the daughter…[will] testify that they spoke to the FBI when the FBI came to their home executing the search warrant. They'll talk about the defendant admitting that he came to the Capitol," Fredricksen, the former federal prosecutor, said. "And even more explosively, they will testify that they were threatened by the defendant that if they were to cooperate with the FBI that — as the indictment charges — that would make them traitors."

Calling the defendants' family to testify is a unique challenge posed by Reffitt's case, says Fredericksen.

"A critical piece of that is that you cannot over-try that case. You have to be sensitive," he said, "The jury is going to be looking at what the government's doing, putting the children of the defendant on the stand. So the government will put this in a very matter-of-factly… because it can backfire."

Reffitt tried unsuccessfully to move his high-profile case and trial out of Washington, D.C. He is one of several Jan. 6 defendants who has argued prospective jurors in the District of Columbia could be biased against him.

In a September 2021 court filing, Reffitt's defense said, "There are so many stories that some are dispassionate and factual, but many others that are editorial and inflammatory. District residents have been bombarded with constant coverage of the January 6th events, arrests, and criminal charges."

Reffitt asked the court to transfer his case to the Eastern District of Texas. Prosecutors opposed the motion, arguing it was premature to seek a change of venue before jury selection. They also argued, "Given the sheer number of people involved in the attack on the Capitol, it is unlikely that more than a handful of District residents could identify him by name."

Reffitt's motion was rejected by the District of Columbia federal judge.

Other defendants have made similar arguments about the sentiments of prospective jurors. Defense attorneys for Gabriel Garcia, a U.S. Capitol breach defendant from Miami, submitted a private poll of Washington, D.C., residents about the events of Jan. 6, 2021. According to Garcia's court filing last week, the polling firm found 70% of people surveyed believed anyone who went inside the Capitol on Jan. 6, 2021 was trying to stop Congress' certification of the electoral vote.

The survey submitted by Garcia's legal team also found 73% of respondents answered "yes" when asked if any individual inside the Capitol on Jan. 6 should be convicted of insurrection.

Former federal public defender Lucius Outlaw, a law professor at Howard University, said defense attorneys will likely argue their Jan. 6 defendants did not have "intention of obstructing and disrupting Congress."

Outlaw said D.C. jurors have likely seen the images and videos captured during the Capitol attack.

Outlaw said, "If there are pictures of your client in the Capitol or scaling a wall, the challenge is: You can't say my guy wasn't there. It's not going to be about whether [the] client was there or not. It's going to be about 'What was their intention?'"

The Washington, D.C., federal court is expected to re-open to jurors Monday, after weeks of closures due to the spread of the Omicron variant. The courthouse will require jurors to wear KN-95 masks or double-layered masks, which could also pose a problem.

Fredericksen says such pandemic precautions, while necessary, may make this complicated case even more difficult for prosecutors by interfering with attorneys' ability to directly communicate with the jury.

"If the jury is spread out, if anybody's wearing a mask, if you're behind plexiglass divider," he said, "it makes it a little more difficult, a little more artificial, if you will, to try cases."

"Lawyers have learned to try cases during these times, and they're doing it. They're doing it successfully," Fredericksen added.

Jury selection ahead of Reffitt's trial is set to begin on Feb. 28.