A federal judge in the District of Columbia has denied a Gravette man's request to postpone his U.S. Capitol riot trial, which is scheduled to begin Monday in Washington.
U.S. District Judge Christopher R. Cooper made the decision on Wednesday during a pretrial hearing for Richard "Bigo" Barnett.
Barnett, 62, faces eight charges in connection with the Jan. 6, 2021, riot. He gained worldwide attention after posing for photos with his foot on a desk in House Speaker Nancy Pelosi's office suite.
Cooper said 65 potential jurors have been called, and he expects jury selection to take most of the day Monday. Cooper said opening arguments will probably take place Monday afternoon or Tuesday morning. The judge said the trial could go into a second week.
"This case is somewhat prominent, mostly because of the photograph," said Cooper. "I would anticipate asking the jurors whether they have seen that photograph because they may associate with it rather than the defendant's name or having read articles about him."
Barnett's attorneys have objected in particular to a Dec. 21 superseding indictment that added an eighth charge against Barnett: "civil disorder" under 18 U.S.C. § 231(a)(3).
The new indictment indicated that Barnett impeded or otherwise interfered with a Metropolitan Police officer who was trying to perform his duties during a civil disorder.
In Wednesday's hearing, federal prosecutors said the civil disorder charge stems from Barnett's conduct in the Capitol Rotunda, where he confronted a police officer because he had left his American flag in Pelosi's office and he wanted it back.
In court filings, prosecutors say Barnett was antagonizing the officer. Barnett was "yelling at officers to let him pass to get his flag back," according to one filing.
"The defendant said words to the effect of, 'we are patriots, this is our building, I need my flag, you better get my flag ... hey, I'm going to bring them in to get my flag. Y'all better get my flag, I going to bring 'em in ... It's going to get really bad. I'm a patriot, I want my flag. Hey, we're fixin' to call 'em in brother, get my flag ... I want my f****** flag. It's in Nancy Pelosi's office.'"
On Wednesday, Bradford L. Geyer, who joined Barnett's defense team in late December, said it appeared from video footage that Barnett was asking the police for help or directions.
Barnett's attorneys argue that the superseding indictment came too late and that they need more time to prepare a defense against the civil disorder charge. They requested that the trial be postponed for two months or for the superseding indictment to be dismissed for "vindictive prosecution."
Cooper said he shared the defense's frustration with the "belated superseder, but having looked at all of the factors and balanced them together, the court's going to deny the defense's motion for a continuance."
The judge said there have been many delays in the case so far, some of which were because Joseph D. McBride, who has represented Barnett since April 2021, was having medical issues. Three other attorneys, including Geyer, have recently joined Barnett's legal team.
"Just for the record, this case was indicted nearly two years ago, one of the first handful of Jan. 6 cases that were indicted," Cooper said Wednesday. "After a year of discovery production, the court set the trial for September 2022. In March 2022, the defense moved for a continuance. The court continued the trial to Dec. 12, 2022, at the defense's request due to Mr. McBride's representations concerning his health. ... The court received a second motion to continue in November, which it granted in part after the parties indicated they would be available and ready for trial on Jan. 9."
Cooper said Barnett's attorneys can submit a motion to dismiss the civil disorder charge and he will consider it before the trial. Prosecutors argue that the civil disorder charge is within the scope of Barnett's other charges in connection with Jan. 6, 2021, so it shouldn't cause such consternation among the defense attorneys.
Cooper told Barnett's legal team it can also submit a motion regarding another charge, 18 U.S.C. § 1512(c)(2), which the defense argues was "materially edited" in the superseding indictment.
That section was changed from the initial indictment to specify that the congressional proceeding Barnett attempted to obstruct, influence or impede was "Congress' certification of the Electoral College vote as set out in the Twelfth Amendment of the Constitution of the United States."
The Capitol riot was an attempt by at least some people in the crowd to overturn the results of the 2020 presidential election and stop Congress from counting the electoral votes for Joe Biden's win over then-President Donald Trump.
Barnett faces enhanced charges for entering the Capitol with a dangerous or deadly weapon -- a ZAP Hike 'n Strike Hiking Staff that Barnett purchased at Bass Pro Shop in Rogers a week before the riot. Prosecutors say the stun gun was advertised as being capable of delivering a 950,000-volt shock.
A Bass Pro employee is one of the witnesses who will be called during the trial, prosecutors told the judge on Wednesday. Other prosecution witnesses include the manufacturer of the stun gun, police officers, FBI agents, a Secret Service agent, the Pelosi staff member on whose desk Barnett put his foot, and an employee of the hotel where Barnett stayed in Washington just before the Capitol riot.
Geyer said he plans to call a character witness and expert witnesses, among others. The government has objected to two of Barnett's proposed expert witnesses -- Mark K. Snell and Steve Hill -- saying their testimony would be irrelevant and their "opinions rely on speculation and unreliable or wholly made-up facts."
Cooper asked for motions to be submitted, saying he will make a decision regarding the expert witnesses before the trial.
The government filed a motion Monday to exclude testimony about the culpability of others during the Capitol riot, saying it was irrelevant.
"Some of that will hinge on how the court comes down on the expert witness testimony," said the judge. "The fact that someone else engaged in wrongdoing would need to be related to Mr. Barnett's specific conduct, not just alternative perpetrator theory. That should be obvious."
Barnett is one of two Arkansans who face felony charges in connection with the U.S. Capitol riot. The other is Peter Francis Stager, 43, of Conway, who is accused of using a flagpole to beat a police officer who was face-down on the steps of the Capitol. A plea hearing is scheduled for Stager on Feb. 16.
Three Arkansans were charged with misdemeanor counts -- no felonies -- regarding the Capitol breach. Robert Thomas Snow, 79, of Heber Springs and Jon Thomas Mott, 39, of Yellville both pleaded guilty to one count of parading, demonstrating or picketing in a Capitol building. Snow was sentenced to one year of probation and 60 hours of community service. Mott's sentencing is scheduled for March 8.
Brennen Cline Machacek, 32, of Hindsville was arrested Dec. 19 and charged with the same four counts that Snow and Mott initially faced. Machacek's next court appearance is set for Feb. 7.