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Barnett wants acquittal or new trial

U.S. didn’t prove case, motions say by Bill Bowden | February 7, 2023 at 4:48 a.m.
Richard “Bigo" Barnett’s legal team talks with reporters about the the verdict outside federal court in Monday Jan. 23, 2023 in Washington. From left to right, Jonathan Gross, Richard “Bigo” Barnett, Joseph McBride and Bradford L Geyer. (Arkansas Democrat-Gazette/Bill Bowden)

Attorneys for Richard "Bigo" Barnett of Gravette have filed motions for a new trial and for acquittal.

On Jan. 23, after a two-week trial, a federal court jury in the District of Columbia deliberated for two hours and seven minutes before finding Barnett guilty of all eight counts in connection with the U.S. Capitol riot on Jan. 6, 2021, in Washington, D.C.

But the evidence just wasn't there, according to Barnett's four-person legal team.

"Because the government did not present evidence to prove every element for any count, where a rational, fair, and impartial jury could find guilt beyond a reasonable doubt, the Court should acquit on all counts," Barnett's attorneys wrote in their motion for acquittal, which was filed Sunday.

Barnett famously posed for photos with his foot on a desk in then-House Speaker Nancy Pelosi's office suite during the riot. He faced enhanced charges for taking a dangerous weapon -- a ZAP Hike 'n Strike Walking Staff stun gun -- into the Capitol that day.

Federal prosecutors surprised the defense by presenting two separate demonstrations before the jury of the Hike 'n Strike "after agreeing that neither side would present a weapons expert qualified to perform a demonstration," according to the motion for acquittal.

In the first demonstration, by FBI Special Agent Kimberly Allen, the device was activated for five seconds -- causing a bright light and a loud clicking noise -- "to misrepresent the non-dangerous item and to unfairly scare the jury with the sound," according to Barnett's attorneys.

The second demonstration was done accidentally as Assistant U.S. Attorney Michael Gordon was putting the device away.

"The Government should not have been permitted to perform the demonstration even with an expert," Barnett's attorneys wrote in their motion for a new trial, which was also filed Sunday. "Discharging the Hike 'n Strike so that the jury could see the light and hear the noise was not relevant evidence of anything, because neither the light nor the sound are relevant to whether the Hike 'n Strike is actually dangerous. Only a demonstration of a person being shocked by the Hike 'n Strike would be relevant."

Barnett was found guilty of impeding Metropolitan Police Officer Terrence Craig, who was trying to perform his duties in the Capitol Rotunda during a civil disorder. Video presented during the trial showed Barnett in Craig's face, yelling that he had left his American flag in Pelosi's office and he wanted a police officer to go get it for him.

But Barnett didn't touch the taller police officer and didn't impede any police activity, according to his attorneys.

"No intent to commit any crime was shown by any evidence," according to the motion for acquittal. "Mr. Barnett had no dangerous or deadly weapon. Mr. Barnett was pushed into the building against his will, he committed no violence, he did not impede any police activity ..."

Prosecutors also failed to show that Barnett obstructed any government proceeding, according to his lawyers.

In their motion for a new trial, Barnett's attorneys wrote that three FBI agents from Fayetteville, three police officers from Washington and Pelosi's former executive assistant all "provided material testimony that was demonstrably false based on other available video evidence, publicly available information, common knowledge, and common sense."

Examples they cited included:

• FBI Special Agent Jonathan Willett testified during the trial that he didn't take a "selfie" with Barnett after his interview with the FBI on Jan. 8, 2021, in Bentonville. Willett called a federal prosecutor the night after he testified saying he doesn't recall whether he took a selfie with Barnett.

The prosecutor brought it to U.S. District Judge Christopher R. Cooper's attention in court the next day, on Jan. 18. The judge told the jury: "Upon further reflection of his testimony overnight, Agent Willett would like to clarify that if he were asked the same question again, his testimony in response would be, 'I do not have a memory either way.'"

"The conclusion of any fair-minded reasonable person is that Special Agent Willett did recall the selfie after the interview and decided it was better to testify that he did not recall rather than a denial that could be verified as false," Barnett's attorneys wrote in the motion for a new trial.

• FBI Special Agent Loel Skoch "insinuated to the jury" that eight-inch zip ties found in Barnett's home could be used as handcuffs, according to the motion for a new trial.

"Special Agent Skoch's testimony was knowingly false in portraying zip ties as a nefarious or dangerous item, as he surely knows that zip ties are used in construction and home repairs ..." wrote Barnett's attorneys. "The testimony was clearly a ploy to falsely insinuate to the jury that Mr. Barnett may have carried multiple deadly or dangerous weapons into the Capitol and that Mr. Barnett is a sadistic and dangerous character who restrains people with zip ties."

• Special Agent Allen testified that she was unaware of any member of Antifa being identified in her area of responsibility, which includes domestic terrorism and the Jan. 6, 2021, Capitol riot. Antifa is an anti-fascist protest movement.

According to the motion for a new trial, Barnett's attorneys contend that a well-known member of Antifa was in the Capitol and was present when a protester was shot by a police officer inside the building.

"It is impossible that an FBI Agent who works generally on domestic terrorism is unaware of 'any members of Antifa having been identified' in any of her work in domestic terrorism generally," wrote Barnett's attorneys.

• U.S. Capitol Police Capt. Carneysha Mendoza "falsely testified that she could identify the Hike 'n Strike from viewing a video of Mr. Barnett," according to the motion for a new trial. Investigators didn't recover the device, but they said it was visible in videos of Barnett inside and outside the U.S. Capitol.

"Captain Mendoza was not noticed, presented, or qualified by the Court as an expert on hiking sticks with or without electrodes and should not have been allowed to testify to recognizing one," wrote Barnett's attorneys.

• Metropolitan Police Department Officer Quenterra Carey's "testimony blatantly contradicted the video evidence to such an extent that her testimony should be disregarded in its entirety as a matter of law," according to the motion for a new trial, referring to her body camera video.

"She testified that when she entered the Capitol she saw 'officers pushing citizens back to basically get them out of the Capitol on the opposite side,'" wrote Barnett's attorneys. "The video shows when she entered the Capitol a few protesters were peacefully meandering in the Rotunda and were being monitored by a crowd of Metropolitan Police officers."

• Metropolitan Police Officer Craig "lied about what he saw when he approached the Capitol that day," according to the motion for a new trial.

"He said he encountered 'a whole mob of rioters and protesters just fighting and throwing stuff at us,' and that rioters threw objects directly at him and other officers, including 'metal pipes, bricks, stones. Anything that can be used as a weapon, they were throwing at us, anything,'" according to the motion. "He also testified that he saw some officers get injured at that time. This is a lie.

"Craig's body camera footage shows him arrive at the Capitol at exactly 2:26 p.m. to an area where no protesters were visible, where he and his team were instructed to don gas masks. He encountered exactly zero protesters, and he immediately ascended to a safe position on the western terrace of the Capitol where he looked down from a safe distance at a crowd that was large, but not discernibly violent. Nothing was thrown at him, and no officers were injured."

• Pelosi executive assistant Emily Berret "made numerous material misrepresentations in her testimony," according to Barnett's attorneys.

She told the FBI shortly after the riot that she walked to work that day, "based on intel that violent agitators would be present in the District that day and could potentially cause damage to her new vehicle," according to the motion for a new trial.

But in court testimony last month, Berret said she traveled by car to work that day.

"Ms. Berret attempted to cure her testimony by saying she misremembered, but only after her repeated implied assurances to the jury that Mr. Barnett had no legitimate fear of violent Antifa agitators that warranted bringing a Hike 'n Strike for protection," wrote Barnett's attorneys.

"The Government accused Mr. Barnett of purchasing the Hike 'n Strike and bringing it from Arkansas to Washington, D.C., for the express purpose of storming the Capitol and using it as an offensive weapon against law enforcement and Congresswoman Nancy Pelosi," according to the motion for a new trial. "The truth, as shown in his numerous social media posts from prior to January 6 is that Mr. Barnett purchased the Hike 'n Strike as a defensive weapon because he legitimately feared that Antifa would be present at the peaceful protest to attack peaceful protesters, including senior citizens like Mr. Barnett."

Barnett, who remains free, faces a maximum penalty of 47 years in prison. Sentencing is scheduled for May 3.

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