A federal judge in the District of Columbia has denied a Gravette man's request to dismiss the Capitol riot charges against him, or in the alternative, move his trial to Arkansas.
Richard "Bigo" Barnett, 62, requested the dismissal of charges in September, saying he can't get a fair trial because President Joe Biden and the congressional Jan. 6 Committee have "intentionally and irreparably poisoned the jury pool."
As an alternative, Barnett wanted the trial moved to the Western District of Arkansas, which is "the only place where he has any chance of selecting a fair and impartial jury of his peers," according to his motion.
U.S. District Judge Christopher R. Cooper disagreed in a ruling filed Wednesday.
"Barnett offers no authority explaining how publicity can disqualify all prospective jurors throughout the country," wrote Cooper. "Even if a potential juror knows about the events of January 6th or heard the President's [Sept. 1] speech, it does not follow that the potential juror is necessarily unqualified to sit on the jury."
"It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court," wrote Cooper, quoting from a 1961 case, Irvin v. Dowd.
"It would be unreasonable to think that twelve impartial jurors cannot be found in this District -- let alone all 94 federal districts," wrote Cooper. "Barnett offers no factual support for his assumption that the President's speech reached and instilled a commitment to 'reverse jury nullification' in every eligible juror in the country."
Cooper noted that decisions regarding the jury pool are normally made during jury selection in the days preceding trial, so Barnett's motion to transfer the trial to Arkansas is premature.
Barnett faces seven charges in connection with the Jan. 6, 2021, riot at the U.S. Capitol in Washington, D.C.
Among other things, Barnett is charged with taking a dangerous weapon -- a stun gun -- into the Capitol that day and for obstructing an official government proceeding: Congress' meeting to certify the Electoral College vote count indicating Biden won the 2020 presidential election.
Barnett got considerable media attention after posing for photos with his foot on a desk in House Speaker Nancy Pelosi's office suite.
Barnett's trial is scheduled to begin Dec. 12, but on Monday his attorney requested that it be postponed until March.
Federal prosecutors do not oppose that request, but they want the continuance to be only 30 to 45 days, noting in a response filed Tuesday that the government plans to change attorneys before the trial.
In another order Wednesday, Cooper gave attorneys on both sides until Monday to file a joint motion indicating dates when they would be available for Barnett's trial, following "a brief continuance."
"If the parties cannot offer a date that also conforms with the Court's schedule, the Court will deny the motion and proceed with the scheduled trial," wrote Cooper.
The judge found that none of the reasons stated in Barnett's motion to continue were grounds for a continuance.
As reasons for the continuance, Jonathan Gross of Baltimore wrote that new evidence keeps emerging about the Jan. 6 "breach" of the U.S. Capitol, a different federal judge threw the obstruction charge out in the case of another Jan. 6 defendant, and Barnett's regular attorney must have a medical procedure done Dec. 9, three days before the trial is slated to begin.
In his order concerning continuance Wednesday, Cooper noted that Gross is at least the third attorney to represent Barnett in this case. His regular lawyer, Joseph D. McBride of New York City, has been suffering from covid-19 and Lyme Disease.
"This case was charged nearly two years ago, one trial date has already been vacated at the defense's request, and the present date was set over four months ago," Cooper wrote in the order. "Defense counsel, which now number at least three, have had more than ample time to prepare for trial. The defense has not identified any material evidence that it is lacking, either from the government's voluminous production of both case-specific and global discovery, or from other public sources."
On March 7, U.S. District Judge Carl J. Nichols in the District of Columbia dismissed the obstruction charge of 18 U.S.C. 1512(c)(2) in the case of Garret Miller, a Jan. 6 defendant from Texas.
Nichols wrote that the statute "must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding. Miller, however, is not alleged to have taken such action."
Federal prosecutors have appealed Nichols' ruling to the U.S. Court of Appeals for the District of Columbia Circuit. Oral arguments are slated for Dec. 12.
Barnett is also charged with obstruction of government proceedings under 18 U.S.C. 1512(c)(2).
Cooper wrote that the pendency of the appeal in Miller's case was not an impediment to the trial in Barnett's case.
"This and other courts have proceeded with numerous January 6th trials involving the charge at issue in Miller," wrote Cooper. "If the Circuit decides the issue in the defense's favor, then Mr. Barnett will receive the benefit of that ruling. There is no good reason to halt the trial in the meantime."
Judge Cooper also addressed the government's pending change of attorneys.
"As for any anticipated change in government trial counsel, the government has been aware of the current trial date for months and should have planned accordingly," wrote Cooper. "That said, the Court would be willing to exercise its discretion and grant a brief continuance should a mutually agreeable date be available. The Court notes, however, that it has a busy docket of both January 6th cases and other matters and therefore may not be able to accommodate the parties' request."
Besides Barnett, Peter Francis Stager, 43, of Conway also faces felony charges in connection with the riot. Stager remains in the District of Columbia jail. He is the only Jan. 6 defendant from Arkansas still incarcerated.
Jon Thomas Mott, 39, of Yellville faces misdemeanor charges in connection with the Jan. 6 breach.
All three have pleaded innocent.
Robert Thomas Snow, 78, of Heber Springs pleaded guilty to a misdemeanor charge for "parading, demonstrating or picketing in the Capitol building." He was sentenced to probation and community service.