Federal prosecutors counter Gravette man’s argument that he can’t get fair trial because of Capitol riot publicity

Gravette man hasn’t shown impossibility of impartial jury, filing contends

Richard Barnett (Washington County sheriff's office & special to the Arkansas Democrat Gazette/AFP via Getty Images/Saul Loeb)
Richard Barnett (Washington County sheriff's office & special to the Arkansas Democrat Gazette/AFP via Getty Images/Saul Loeb)

A Gravette man has failed to establish that he "cannot obtain a fair and impartial trial" in the District of Columbia or anywhere else, according to federal prosecutors.

They filed a response late Thursday to a Sept. 23 motion from Richard "Bigo" Barnett saying his Capitol riot case should be dismissed because President Joe Biden and the congressional Jan. 6 Committee have "intentionally and irreparably poisoned the jury pool" in the entire United States.

Barnett, 62, faces felony charges for taking a dangerous weapon -- a stun gun -- into the U.S. Capitol during the riot. He became widely known after photographs circulated of him sitting with his foot propped on a desk in House Speaker Nancy Pelosi's office suite. In a court filing, Barnett's attorney, Joseph D. McBride, said his client has become "the most iconic face of the January Sixth defendants."

The Jan. 6 riot escalated from a "Stop the Steal" rally in which some supporters of then-President Donald Trump entered the Capitol and attempted to stop Congress from certifying the Electoral College vote indicating that Joe Biden had won the presidential election.

If the charges against Barnett aren't dismissed, alternatively, he asked that his Dec. 12 trial to be 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 the motion filed last month by McBride.

"Mr. Barnett respectfully submits that President Biden's continued defamatory statements about January 6th Defendants and MAGA Republicans in conjunction with the actions of the January 6th Committee, have prejudiced him to the extent that dismissal of his indictment is warranted," wrote McBride, citing a speech Biden made on Sept. 1.

Federal prosecutors disagree.

"The defendant moves to dismiss the Indictment in light of nationally televised remarks by the President of the United States on September 1, 2022, arguing that those remarks 'are akin to an order for D.C. juries to find defendants guilty of any and every charge because they are insurrectionists and terrorists,'" according to the 36-page filing from three assistant U.S. attorneys, Mary L. Dohrmann, Alison B. Prout and Nathaniel K. Whitesel. "The defendant further asserts that publicized statements by members of the U.S. House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol (the 'Select Committee') have 'mirrored those remarks.' The defendant's attempt to dismiss the indictment on this basis fails for several reasons.

"As an initial matter, the defendant cites no authority for the proposition that pretrial publicity can disqualify all prospective jurors in every single one of the United States' judicial districts and, therefore, prevent a defendant from being tried anywhere for his crimes.

"In addition to having no legal support, the defendant's argument rests on the incorrect factual assumption that the President's remarks have not only reached, but also instilled a commitment to 'reverse jury nullification' in every eligible juror in a nation of over 330 million people."

It was worth noting, they wrote, that Barnett had generated substantial pretrial publicity of his own.

They cite an April 29, 2021, interview Barnett and McBride did with NewsMax, which remains available on YouTube, and a July 22 appearance they made on One America News, in which Barnett said he saw the Capitol police attack "innocent protesters."

"It would be a perverse result to dismiss (or transfer) the defendant's case as a result of publicity, when he has actively fanned that flame himself," wrote the prosecutors.

Regarding change of venue, Article III of the Constitution provides that "the trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed," according to Thursday's court filing. The Sixth Amendment similarly guarantees the right to be tried "by an impartial jury of the State and district wherein the crime shall have been committed."

Transfer to another venue is constitutionally required only where "extraordinary local prejudice will prevent a fair trial," they wrote, citing case law.

"The D.C. Circuit held that even a change of venue was not required in cases arising from the Watergate scandal, even though some of the publicity was 'hostile in tone and accusatory in content,'" according to Thursday's filing.

"Courts have declined even to transfer venue -- much less dismiss the charges -- in some of the most high-profile prosecutions in recent American history," wrote the prosecutors.

They cite the capital prosecution of the Boston Marathon bomber, the fraud trial of the CEO of Enron Corporation, the trial of a participant in 1993 World Trade Center bombing and the terrorism prosecution for a conspirator in Sept. 11, 2001, attacks.

In the Oklahoma City bombing case, which involved an act of domestic terrorism that killed 169 people, the district court transferred venue to an adjoining state, but it didn't dismiss the indictment entirely, they wrote.

"The defendant fails to explain how the President's remarks make his case more difficult to obtain an impartial jury than other high-profile cases involving acts of violence," according to Thursday's filing. "Additionally, the defendant understates the important role of voir dire in selecting an impartial jury."

Voir dire is a preliminary examination to determine the competency of a witness or juror.

In his Sept. 23 motion, McBride noted that Barnett wasn't involved in any act of violence at the U.S. Capitol on Jan. 6, 2021.

In Thursday's filing, prosecutors noted that Barnett was threatening in tone when he spoke to police at the Capitol after he realized he left his American flag in Pelosi's office.

"After leaving the building, while still on Capitol grounds, the defendant approached a line of police officers and shouted, 'We're American citizens, we're patriots. Your boys maced me. This is my house, y'all maced me in my own house. This is gonna get real bad, not necessarily today, we're going to calm down and leave, but y'all gotta remember something. Y'all gotta pick a f****** side. This civil war, this isn't 'oh, somebody broke the law' -- the f****** Communists have declared war on us, boys.'"

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.


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