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March 8, 2022

With first defendant now convicted after trial, how steep might the "trial penalty" be in the Jan 6 riot cases?

As reported in this AP piece, headlined "1st trial in Capitol riot ends with conviction all counts," we now have  a new conviction in the January 6 riot cases that can perhaps reveal some of the sentencing consequences of going to trial rather than pleading guilty.  Here are the basic details:

A Texas man was convicted on Tuesday of storming the U.S. Capitol with a holstered handgun, a milestone victory for federal prosecutors in the first trial among hundreds of cases arising from last year’s riot.

A jury also convicted Guy Wesley Reffitt of interfering with police officers who were guarding the Capitol on Jan. 6, 2021, and of obstructing justice for threatening his two teenage children if they reported him to law enforcement after the attack. Jurors deliberated about three hours and convicted him on all counts.

The verdict could be a bellwether for many other Capitol riot cases. It could give Justice Department prosecutors more leverage in plea negotiations and discourage other defendants from gambling on trials of their own. Reffitt, 49, of Wylie, Texas, didn’t testify at his trial, which started last Wednesday. He didn’t visibly react to the verdict, but his face was covered by a mask.

During the trial’s closing arguments on Monday, Assistant U.S. Attorney Risa Berkower told jurors that Reffitt drove to Washington, D.C., intending to stop Congress from certifying President Joe Biden’s electoral victory.  Reffitt proudly “lit the fire” that allowed others in a mob to overwhelm Capitol police officers near the Senate doors, the prosecutor said.

Reffitt was not accused of entering the Capitol building.  Defense attorney William Welch said there is no evidence that Reffitt damaged property, used force or physically harmed anybody.  The defense lawyer urged jurors to acquit Reffitt of all charges but one: He said they should convict him of a misdemeanor charge that he entered and remained in a restricted area.

Reffitt faced a total of five counts: obstruction of an official proceeding, being unlawfully present on Capitol grounds while armed with a firearm, transporting firearms during a civil disorder, interfering with law enforcement officers during a civil disorder, and obstruction of justice.

Jurors saw videos that captured the confrontation between a few Capitol police officers and a mob of people, including Reffitt, who approached them on the west side of the Capitol. Reffitt was armed with a Smith & Wesson pistol in a holster on his waist, carrying zip-tie handcuffs and wearing body armor and a helmet equipped with a video camera when he advanced on police, according to prosecutors. He retreated after an officer pepper sprayed him in the face, but he waved on other rioters who ultimately breached the building, prosecutors said.

Before the crowd advanced, Reffitt used a megaphone to shout at police to step aside and to urge the mob to push forward and overtake officers. Assistant U.S. Attorney Jeffrey Nestler said Reffitt played a leadership role that day. During last Friday’s testimony, prosecutors zoomed in on a video image of Reffitt at the Capitol. FBI Special Agent Laird Hightower said the image shows “a silvery metallic linear object” in a holster protruding from under Reffitt’s jacket as he leaned forward....

Reffitt’s 19-year-old son, Jackson, testified last Thursday that his father threatened him and his sister, then 16, after he drove home from Washington. Reffitt told his children they would be traitors if they reported him to authorities and said “traitors get shot,” Jackson Reffitt recalled. Jackson Reffitt, then 18, said the threat terrified him. His younger sister, Peyton, was listed as a possible government witness but didn’t testify....

More than 750 people have been charged with federal crimes related to the riot.  Over 220 of them have pleaded guilty, mostly to misdemeanors. and over 110 of them have been sentenced. Approximately 90 others have trial dates.

This AP description of Reffitt's behaviors makes him sound like a more serious offender that some of those prosecuted for Jan 6 activities. but also less serious than some others.  I will be interested to see how guideline calculations and sentencing arguments play out for Reffitt in the months ahead.

Some of many prior related posts:

March 8, 2022 at 02:17 PM | Permalink


Congratulations to my former colleagues in the USAO. As for defense counsel, well, this is what they do, I guess. And as to the supposed "trial penalty," maybe our crackpot friend could have negotiated in good faith with the government like so many of his cohorts (and so many other defense counsel) did, rather than roll the dice that the jury would buy a pretty flimsy sales pitch for innocence.

Having rolled the dice, he lost. This is not breaking my heart.

Posted by: Bill Otis | Mar 8, 2022 2:54:02 PM

I'm amazed any of these folks were able to get off with only misdemeanor convictions. Mostly I would have figured politicians a self-interested enough bunch that they would have special offenses that would classify any out-of-line behavior as felonies. And I'm very much with Mr. Otis, not crying for this guy.

Posted by: Soronel Haetir | Mar 8, 2022 6:53:40 PM

Bringing a gun and threatening a minor with violence sound pretty bad on top of reasons to believe he is unrepentant (not the failure to plead; its hard to believe his wife is saying what she is saying without his tacit approval).

Posted by: Jason | Mar 8, 2022 8:23:58 PM

Reffitt's such a big tough manly man, I'm sure he'll do juuuuust fine in prison.

I do feel bad for his kids, but only because they got saddled with such a garbage parent through no fault of their own. Him being out of the picture for a while could only improve their situation I think.

Now is Prof. B. going to complain about the increase in federal prisoners under Diamond Joe's administration because of all these 1/6 traitors getting locked up?

Posted by: kotodama | Mar 8, 2022 9:12:06 PM

10 years should do it. with good time he's be out in 8 and one-half. participating in an insurrection (even if a relatively minor one) is a no-no.

Posted by: anon14 | Mar 8, 2022 11:55:19 PM

Good riddance. Now, if we could prosecute all rioters with the same vigor instead of based on their political beliefs.

Posted by: TarlsQtr | Mar 9, 2022 10:36:32 AM

TarlsQtr --

I think it was about a year ago that at some quite large and densely packed BLM gathering (I'll be polite and not call it a mob) there was not a mask to be seen, despite the local mask mandate. When the Lefties who insisted on the medical need for the mandate were asked about this, they said that the urgent importance of BLM objectives overcame the need for masks.

This, you see, is because the virus can tell what political stance the folks in the crowd are taking and will adjust its infectious quality accordingly.

Moral of story: This is how the Left thinks, and why you see, on this forum among many others, satisfaction (for once) with the prosecutions for Jan 6, but continuing outrage at prosecutions (or sober sentencing or anything else that might suggest social disapproval) of anything else, including murder and child rape.

It's a useful window onto the fact that the Left isn't against all use of prosecutorial power, not a bit, but just against those instances of its use targeted at the standard sorts of criminal behavior seen on the other 364 days of the year.

P.S. This is the same phenomenon going on with all the bile directed to the dishonesty practiced by some of Trump's lawyers, while the routine dishonesty used in defending murder, rape and robbery is not only not criticized but instead lauded as healthy "zealous advocacy."

Posted by: Bill Otis | Mar 9, 2022 2:10:26 PM

Bill, do you not see the exact same hypocrisy on the right? The leader of the Republican Party incited a riot to overturn an election and the party leadership has now expelled the few members brave enough to participate in the investigation. Moral of the story: partisans are hypocrites. Surprise surprise.

Posted by: Curious | Mar 9, 2022 10:09:44 PM

“The best lack all conviction, while the worst are full of passionate intensity.”


Posted by: anon 12 | Mar 9, 2022 10:47:01 PM

anon --

Would that be the passionate intensity of, say, Sister Perjean, who never tires of giving us Righteous Lectures about how the death penalty is always immoral?

P.S. Nor is it true that "the best all lack conviction." Plenty of the world's best and most courageous are right now fighting for their freedom in the Ukraine, full of (utterly justified) conviction that the Russians have no business invading.

Posted by: Bill Otis | Mar 9, 2022 10:57:02 PM

anon --

There is indeed hypocrisy in a segment of the Right about these Jan 6 prosecutions. These are the people who ordinarily support law and order but now want to make every excuse for the rioters. Note however that it's only "the Right" very broadly defined. For those like me who are Reagan-Bush types rather than populist types, support for the Jan 6 prosecutions has been as consistent as our long-time support for holding criminals generally accountable.

P.S. The House investigation, being a Pelosi-special with most of the Republicans having been thrown off the committee, has nothing like the credibility or sobriety of the USAO investigations and prosecutions.

Posted by: Bill Otis | Mar 9, 2022 11:09:00 PM

Bill, greetings! I with respect to your comment about the Republicans having been thrown off, recall that the Rebulicans torpedoed the proposal for a 9-11 type joint committee.

Posted by: Michael Levine | Mar 10, 2022 8:57:47 PM

Hi Michael --

The name of the Committee doesn't make a lot of difference. The fact that a politician controls it does. Again, I will take the investigative work of the USAO and (for sentencing) the Probation Office over work that necessarily is going to have a political slant.

Posted by: Bill Otis | Mar 11, 2022 12:02:43 AM

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