Law360 (January 5, 2022, 10:37 AM EST) -- A federal tax attorney. A San Francisco-based antitrust prosecutor. The coordinator of coronavirus fraud cases for Utah's U.S. Attorney's Office. Lawyers from across the federal government have aided in prosecuting and defending more than 700 people charged in D.C. federal court for their role in a mass crime with no modern precedent — the siege of the U.S. Capitol.

It's been a year since a mob of then-President Donald Trump's supporters sought to halt the congressional vote tally that would formally name Joe Biden the next president. The most serious criminal allegations stemming from the Jan. 6 riot are well documented, often by the defendants themselves in social media posts.

Some broke windows or attacked police with pepper spray, flag poles or their fists to breach the Capitol. A few rummaged through lawmakers' desks, stole property or shouted threats. Gallows were erected nearby, and rioters chanted that they would hang then-Vice President Mike Pence after learning he would not overturn the 2020 election results.

But if Jan. 6 was a test of American democracy, the year since has challenged the nation's criminal justice system, which guarantees all defendants the right to a speedy trial and an attorney under the due process protections of the Sixth Amendment.

In the U.S. District Court for the District of Columbia — where criminal prosecutions nearly doubled from 2020 to 2021 — guaranteeing those fundamental rights has required some unusual measures.

Lawyers from U.S. attorney's offices as far-flung as Alaska and Puerto Rico are involved in prosecuting more than half the Jan. 6 cases in D.C. federal court, according to a Law360 review of counsel in 702 dockets.

The DOJ's civil, appellate and tax divisions are lending a hand on more than 160 prosecutions, and lawyers from out-of-district federal public defender's offices are representing about one-third of defendants who qualified for and opted to use indigent defense offerings.

Even with all that help, managing the cases has been challenging. Out-of-state attorneys occasionally need to travel for in-person hearings, and the coronavirus has fueled a bottleneck in trial dates. Additionally, there's a deluge of digital evidence to sift through.

It was clear early in the year that the volume of cases would be more than the local indigent defense bar could handle, according to Michelle Peterson, the D.C. district's chief assistant federal public defender, who has been coordinating counsel for the glut of Jan. 6 defendants.

The U.S. Attorney's Office for the District of Columbia declined to comment for this story, as did nearly three dozen assistant U.S. attorneys for other offices who are prosecuting the cases.

Shana Fulton, who worked for the U.S. Attorney's Office in D.C. for nearly 12 years before becoming a partner at Brooks Pierce McLendon Humphrey & Leonard LLP in 2018, said the use of out-of-district prosecutors was unusual but not surprising.

"I don't see how the U.S. Attorney's Office in D.C. could have done these cases without getting support from Main Justice and other U.S. attorney's offices," she said. "I'm sad that it's come to that, because it must be that the volume of cases is ridiculous. I've never heard of a circumstance like this before in recent U.S. history."

Duty-Bound

As prosecutions began pouring in last year, the chiefs of federal public defender's offices all over the country sent requests to their staff: If anyone wanted to help ease D.C.'s caseload, now was a good time to raise their hands.

One out-of-district deputy public defender, who was not authorized to comment to the press and spoke to Law360 on the condition of anonymity, volunteered, considering it a question of duty.

"If you want to assume the politics of the people who attended the rally, I'm definitely on the opposite end," the deputy public defender said. "But I think everyone deserves fair representation and vigorous defense. That's true of everyone, no matter what they're charged with, or what their beliefs are."

"I also think the government overcharged a lot of the cases and isn't offering resolutions that will give some of these young men a chance to rehabilitate or re-enter society without a felony conviction and without significant prison time."

Peterson said that at first, the D.C. defender's office put out a general call for volunteers. As more cases trickled in and the accused were tracked down and arrested in their home states, their initial appearances were often held before a local magistrate judge with a local public defender.

"We'd just call that attorney, that office, and say, 'Hey, can you guys keep that case?'" Peterson said, adding this eased her office's load but also benefited the defendants, who could meet with their lawyers in person.

"There are times when the jurisdiction where they live has a high caseload and can't take on the case, but generally, we try to assign to attorneys where the client lives," she said.

The numbers bear that out. Of the 123 cases handled by out-of-district public defenders, 100 were based in the district where their client resides or was arrested.

Assignments were more random among assistant U.S. attorneys helping to bear the load of prosecutions, less than 8% of whom work in the same district where the defendant resides or was arrested.

That perhaps reflects the uneven workload for the two sides of the aisle. While nearly half of Jan. 6 defendants are being represented by retained counsel, every prosecution must be handled by a government attorney.

Cross-Country Consistency

The circumstances of the Jan. 6 caseload are unusual, but the use of out-of-state federal attorneys is not entirely unprecedented.

A similar scenario played out in 2020, after the U.S. Supreme Court's McGirt v. Oklahoma decision held that much of eastern Oklahoma remains Native American land, and that under the Major Crimes Act, criminal charges related to tribal members must be tried in federal court.

In the year after the decision came down, criminal cases in Oklahoma's eastern and northern districts tripled, as old convictions that were still ripe under the statute of limitations were reopened in federal court, and new cases that may have been charged in state court under the old regime now fell under federal jurisdiction. And public defenders received a similar call to arms to help offices in Oklahoma manage the influx.

"They were flooded with a bunch of cases that came in from state court after the McGirt decision. And likewise in D.C., their office couldn't handle the volume of cases after January 6th," the anonymous out-of-district deputy defender said. "So a bunch of us volunteered for both sets of cases."

There's also some history of crossover on the prosecution side. Attorneys from the U.S. Department of Justice frequently work seven-month "details" at the D.C. office as special U.S. attorneys. The program allows DOJ lawyers to get trial experience and eases the load on the D.C. federal prosecutor's office, which is unique in that it handles both state-level and federal cases.

Former U.S. attorneys in D.C. weren't surprised to learn that lawyers from across the DOJ, even in the civil and appellate divisions, were working on these cases.

"The federal law is the same everywhere," Fulton said. "There's differences between civil and criminal, but at the end of the day, a trial attorney's a trial attorney."

Georgetown Law professor Mary McCord, who worked for nearly 20 years at the U.S. Attorney's Office in D.C., said DOJ details are common practice, adding that "it is less common to detail AUSAs from other offices, but it's not uncommon for AUSAs from different offices to work together on a case that has a transnational nature."

Though more than three dozen DOJ and U.S. attorney's offices have been handling Jan. 6 cases, the strategy has been fairly consistent across the dockets.

Most members of extremist groups like the Oath Keepers and Proud Boys have been charged with conspiracy for their planning and coordination before and during the riot, a charge that carries a maximum five-year sentence. More serious charges, like obstruction of an official proceeding or assaulting an officer with a dangerous weapon, carry 20-year maximums each.

But charges like insurrection and seditious conspiracy, which carry 10- and 20-year maximums, respectively, have not been brought against any of the 702 defendants whose cases Law360 reviewed.

McCord said she was surprised to not see a seditious conspiracy charge brought against any defendants, since the elements of the crime seem to apply to the allegations against some. But she added that "historically, that's been a tougher crime for the government to prove at trial."

"Prosecutors make decisions about what's the most readily provable crime based on the evidence they have that they can prove beyond a reasonable doubt," McCord said. "If you've got crimes that you have ready evidence to prove, and they will get you the type of penalty that you think is warranted, many prosecutors will say, 'Well, I'm not going to do the thing that's a little harder for me to prove. I'm going to do the things that it's easier for me to prove.'"

Most people who entered the Capitol and then left without destroying or stealing anything face the same four misdemeanor charges — entering and remaining in a restricted building or grounds; disorderly and disruptive conduct on restricted grounds; violent entry and disorderly conduct in a capitol building; and parading, demonstrating or picketing in a capitol building — with a maximum stacked sentence of three years.

A total of 244 defendants face those same misdemeanor charges.

That's likely the result of careful coordination, according to McCord, who also served as acting assistant attorney general for the DOJ's National Security Division. That office has developed models for maintaining consistency, she said, and Main Justice is likely involved in overseeing the Jan. 6 prosecutions, not only at the charging phase, but as prosecutors negotiate plea deals and draft sentencing memoranda.

"I would expect you would have all charging decisions and plea decisions and sentencing decisions run for approval through the same person or group of people to ensure that there is consistency," she said. "The interest has always been in making sure that these cases aren't going to be treated differently in California than they are in Illinois, than they are in New York, than they are in D.C."

Stumbling Blocks

Technology has made this nationwide effort easier, though it has occasionally necessitated cross-country travel by government attorneys at taxpayers' expense.

Assistant U.S. Attorney Christopher Amore traveled from New Jersey to D.C. for the November sentencing of Jordan Stotts, who pled guilty to the misdemeanor of parading, demonstrating or picketing in a capitol building, according to the court docket.

In November, U.S. District Court Judge Amy Berman Jackson called an in-person hearing on a motion to suppress evidence against Daniel Rodriguez, who stands accused of tasing a police officer and is represented by three public defenders from Nevada.

And Brandon Fellows — who was photographed in a costume hat and beard with his feet up on a congressman's conference table — irked U.S. District Judge Trevor McFadden after his "appearance and demeanor" at a video arraignment was deemed "inappropriate for criminal proceedings in federal court." The judge mandated future hearings to be conducted in person, and Assistant U.S. Attorney Mona Furst flew in from Kansas for proceedings — yet she didn't seem to mind.

"My daughter lives in D.C., so if I get to come see her," Furst told the judge, "thank you."

But such examples are rare among the thousands of hearings and conferences called in these cases, the vast majority of which were held by video or teleconference.

Remote appearances were authorized in D.C. federal court in the early days of the pandemic, on March 30, 2020 — a day after the Judicial Conference, the federal courts' policymaker, found a district's chief judge could temporarily allow the widespread use of video and phone conferencing for criminal proceedings thanks to the Coronavirus Aid Relief and Economic Security, or CARES, Act.

The D.C. District has been reauthorizing these remote hearings every 90 days since March 2020, most recently in November.

The coronavirus has in this way enabled attorneys to inexpensively beam in from around the country and help shoulder the insurrection's massive caseload — guaranteeing, among other things, the defendants' Sixth Amendment right to counsel. It has also created a bottleneck in the judiciary.

For the first year of the pandemic, D.C.'s federal court halted all jury trials. Last March marked their "limited resumption." And while criminal defendants are normally entitled to go to trial within 70 days of being arraigned, COVID-19 concerns have led some districts, including D.C., to exclude chunks of time during the pandemic from the Speedy Trial Act's schedule.

But it's unlikely the Jan. 6 cases would be ready for trial even without the pandemic, thanks to yet another stumbling block: an overabundance of evidence.

Court filings offer a peek into the yeomen's work prosecutors and law enforcement face — watching hours of video from Capitol surveillance footage and police officers' body cameras, combing through self-incriminating social media posts, and serving search warrants on social media companies for deleted livestreams — as well as on cellphone service providers for text messages and location data.

Constitutional rights are implicated there as well, as the government must provide exculpatory evidence under the U.S. Supreme Court's 1963 Brady v. Maryland decision.

Some judges have expressed frustration over the pace with which the government is providing defendants with discovery, McCord said, while adding that the "sheer volume of digital evidence" presents a challenge.

"It's staggeringly high — higher than anything I think that the government's ever had to try to face at one time," she said.

--Editing by Philip Shea and Alyssa Miller. Graphics by Ben Jay.


Correction: An earlier version of one of the map graphics omitted certain case information for one of the prosecutors involved. The error has been corrected. The graphics have also been updated to better reflect the offices with which certain prosecutors are affiliated.

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