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Capitol Rioters Hoping for a Plea Bargain are in for Some Bad News — They Better Prepare for Prison

In the months since the U.S. Capitol attack, only one of the more than 440 people charged is pleading guilty, signifying that prosecutors have set tough conditions for plea deals. This also shows that defense lawyers are not exactly acquiescing to their demands, however.

U.S. News And World Report [1] has noted these cases are definitely high stakes as they stem from the deadliest violence at the Capitol in modern history.

In court hearings, some officials have suggested defendants might be interested in pleading guilty, something that often results in shorter sentences. Prosecutors frequently seek to resolve cases through plea deals. Even so, legal experts contend that it’s too early in the process for prosecutors and defense lawyers to quick deals.

But attorneys for at least a dozen defendants say plea talks have foundered because prosecutors are demanding that their clients turn over social media data, cell phones, and other evidence (which makes sense as the rioters took many of their cues from the social media and their phones) while also pushing for prison sentences their clients won’t accept.

These cases could lead to a backlog if there are few plea deals. That will lead to hundreds of trials in a system already thoroughly bogged down by the coronavirus pandemic.

As fun as that sounds, that’s not all. If little evidence is provided via plea bargains, federal prosecutors will have difficulty building cases against those who spurred the violence on more serious charges such as conspiracy or violation of laws aimed at fighting organized crime.

The Justice Department has begun an extensive investigation into the attack on the Capitol building on Jan. 6, where hundreds of supporters of then-President Donald Trump rampaged the building after he falsely claimed in an incendiary speech that the election was stolen from him. The mob fought with Capitol police, shattered windows, and sent lawmakers into hiding.

Many of the rioters live-streamed their actions on social media or posted photos of themselves. That, of course, made it easier for law enforcement agencies to make hundreds of arrests in short order.

The charges run the gamut from disorderly conduct to assaulting an officer, to conspiracy. Many of the heavy-duty charges center around leaders of such right-wing groups as the Oath Keepers and the Proud Boys. They face charges of obstruction of an official proceeding, destruction of government, and occupying a restricted building.

In cases involving lesser charges, defendants have been surprised by prosecutors’ demands and defense lawyers complain that the insistence on obtaining cell phones and other physical and digital evidence is excessive. It’s understandable that prosecutors want this because the evidence can be used to strengthen cases against those who planned the insurrection.

One attorney, Steven Metcalf, said he rejected a plea deal, for his client Richard Barnett, because it would have sent Barnett to jail for several years. Barnett, of Gravette, Arkansas, was seen in a widely circulated photo sitting at a desk with his feet propped up in House Speaker Nancy Pelosi’s office.

“We might consider something more reasonable,” Metcalf said.

But they may have a bit of a wait.

Laurie Levenson, a former federal prosecutor who’s now a law professor at Loyola Law School in Los Angeles said that because prosecutors are taking a tough stance in plea-bargain negotiations they are “sending a message” that demonstrates they are taking the riot cases seriously.

“It is still relatively early in the process,” she said. “Prosecutors don’t want to … set the standards too low. There’s not a lot of incentive for prosecutors to give a sweetheart deal.”

I find that encouraging, don’t you? These people committed acts of domestic terr*rism that turned deadly — just because their hero didn’t get his way. If they are willing to do something this drastic they should be willing to take the consequences.