Several attorneys said that plaintiffs overseeing a widespread investigation into the riots at the Capitol this winter have begun submitting affidavits deals to the defendants, an important step in advancing the investigation into the attack.
The plea negotiations, which have been largely informal, are still at an early stage, and as of late last week, only one of the hundreds of defendants has pleaded guilty. But several attorneys recently admitted to holding private conversations with the government and sought to limit how long their clients might accept in prison.
“What is happening is the process of coming up with numbers that everyone hopes to describe what people have done fairly,” said Gregory T. Hunter, who represented several of the defendants on Capitol Hill.
Extending plea deals, even on a large scale, is a regular occurrence in the legal system in which the vast majority of criminal cases do not reach a jury. The prospect of many, if not most, of the more than 400 defendants on the January 6 date pleading guilty would have an additional benefit in Washington: It would relieve the city federal court of the burden of conducting dozens of trials in just one.
Fragmentation of plea bargains will also force the government to confront what from the start has been the central tension in mass prosecution: the struggle for justice at the individual level for often intersecting mob actions.
This week, prosecutors said in court that they would soon bring four men accused of assaulting police in a clash near the entrance to the Senate wing of the Capitol Building. But to precisely craft deals, prosecutors will have to not only determine which men did what they did for any of the officers, but also to determine how severely the officers were injured.
In general, penalty ranges for federal crimes are defined by law, although prosecutors have the discretion to require judges to add more time to certain judgments for a variety of so-called reinforcements. Defense attorneys say they expect the Department of Justice to eventually devise a standardized method for calculating plea bargains in several Capitol cases and create “packages” that outline preconceived representations of crimes such as misdemeanor trespass or felony assault.
But that hasn’t happened yet, and some lawyers have complained that bargaining over the pleas seemed improvised and confusing at times – like buying a used car.
At a recent Richard Barnett hearing, an Arkansas man may have become famous for his presence Filmed with his feet on a desk In the office of Speaker Nancy Pelosi, prosecutors said they offered a deal that could lead to a prison sentence of 70 to 87 months. Later, Barnett’s attorney, Stephen Metcalfe, said he was disappointed with the proposal and could not understand why the government had offered so much time to a man who did not break anything and did not harm anyone inside the Capitol.
“It appears they are actually trying to convince US defense attorneys not to enjoy these offers as dangerous,” said Mr. Metcalf. “This is how far away they are.”
Other lawyers have taken a more generous stance.
Albert Watkins represents several culprits in the Capitol riots, including Jacob Chansley, a so-called QAnon shaman who breached the building with face paint and a fur hat, carrying a spear draped in the American flag. While Mr. Watkins refused to discuss the details of his conversations with the government, he said that the plaintiffs – after urging – began treating the defendants individually, rather than as an undifferentiated mass.
“The conversation we heard originally was, ‘Everyone hanged out from the nearest tree,’” said Mr. Watkins. “But there was a shift. Now it seems that the government’s position is that many of these issues are less than real attempts to overthrow democracy. “
The Ministry of Justice declined to comment on how many plea deals were filed or how the ministry decided who would receive them.
The negotiations to end the cases came before the trial, as some of the defendants came with them The lawyers decided to fight their cases, attacking the legal viability of some of the charges That many people face. At least two defendants – a Texas florist and a Florida member of the far-right Broad Boys group – have filed petitions to have their cases moved out of Washington.
The only defendant to publicly accept the plea bargain is John Schaeffer, the guitarist and songwriter for Heavy Metal Ice Earth Earth who prosecutors say is a member of the militia group Guard Section. At a hearing in AprilSchafer confessed to entering the Capitol with a can of bear spray and engaging in “verbal altercations” with police officers. As part of his guilty plea, he agreed to cooperate with the plaintiffs, possibly against some of the other 12 members of the department guards who are also facing charges.
According to court filings, at least one other defendant on the Capitol – Douglas Jensen, a QAnon believer and who was among the first to storm the building – is in formal discussions with the government about a plea bargain that expires next month.
While the plaintiffs have informal conversations with other attorneys and their clients, AJ Kramer, head of the Washington Federal Advocates Office, which represents dozens of defendants, said that none of his staff has received a written offer from the government.
Yet discussions about the offers – who might get them and how much – are still rampant among the few dozen Capitol Hill defendants who were held pretrial in the same unit of the Columbia District Prison, one of the attorneys who spoke said. On condition of anonymity so as not to betray the trust of his clients.
The lawyer said that the imprisoned defendants – most of whom were from extremist groups or accused of attacking the police – exchanged legal advice with each other. He said some are considering a protest plan to sack their private attorney and try to persuade the Federal Advocates Office to represent them, thus ensuring that the government will have to pay for their defense costs.
For Mr. Hunter, all of this points to how difficult it can be to prosecute more than 400 people primarily at one time. While pleading deals are the best, or perhaps the only, way the system can operate without overloading, the process has not been easy.
“Everyone tries hard, but we make it up a lot as we go forward,” said Mr. Hunter.