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Alleged Capitol Rioters Are Telling Judges They Shouldn't Be Tried In DC Because Of "Cancel Culture"

Lawyers with conservative ties are leaning into politically themed defense strategies.

Posted on May 20, 2021, at 5:40 p.m. ET

Jacob Ford / AP

Jenny Cudd and Eliel Rosa leave the federal courthouse in Midland, Texas, on Jan. 13.

WASHINGTON — Defendants charged in the Capitol riots on Jan. 6 are trying to get their cases moved out of Washington, DC, arguing jurors in the Democrat-leaning capital will feel forced to convict because of “cancel culture.”

A lawyer for Jenny Cudd, a flower shop owner from Midland, Texas, filed a brief arguing that there was now a “social expectation” that Democrats “cancel” anyone associated with white supremacy, Trump, and conservatism. Cudd went viral in February for asking a judge to let her go on a “work-related” retreat to Mexico after she was charged in the insurrection; the judge agreed.

“The D.C. venire is polluted by the city’s political culture of ‘canceling’ those associated with allegations of ‘white supremacy,’” Cudd’s attorney Marina Medvin wrote in March. “The media’s characterization of the incident compels a socially-responsive Washington D.C. Democrat jury to enter a guilty verdict regardless of the applicability of such a verdict to the facts of the case.”

Cudd is one of a handful of defendants who have invoked “cancel culture” in arguing for a venue change so far. It’s the latest instance of defense lawyers rolling out strategies that lean into the political maelstrom surrounding Jan. 6 and attempting to tap into public sympathy for defendants among conservatives, even as prosecutors have said that these cases aren’t politically motivated.

The meaning of “cancel culture” has morphed over the years, but it has become a buzzword on the right to refer to any public criticism of Republicans, even if the subject hasn’t actually been “canceled” and remains in the public eye or able to freely go about their life.

William Pepe and Christopher Worrell — who are charged separately with joining the insurrection but are represented by the same Los Angeles–based attorney, John Pierce — filed venue change requests this month that also featured the “cancel culture” argument. They argued that judges should consider one question in deciding whether the DC jury pool is prejudiced: “Out of those prospective D.C. jurors, how many will disobey ‘cancel culture’ and the social pressure to punish Mr. Worrell for being politically incorrect?” (Worrell is charged with using pepper spray gel against police.)

Pierce’s briefs arguing for venue changes for Pepe and Worrell use nearly identical language to the one that Medvin filed for Cudd in March, including the “cancel culture” line. Asked about the overlap on Thursday, Pierce told BuzzFeed News in an email that he hadn’t known about the brief in Cudd’s case and that there was a “breakdown in the drafting and research portion of our team.” Pierce wrote that the person responsible had been fired (he didn’t identify who it was), but that he stood by the substance of the arguments.

“We have taken decisive action to address this. Following an internal review this morning, the individual responsible for this conduct has been terminated, effective immediately. This will not happen again and will not be tolerated in our firm,” Pierce wrote. “Pierce Bainbridge stands by the merit of the motions and believes Mr. Pepe and Mr. Worrell will not receive a fair and impartial trial without their cases being transferred outside of the District of Columbia.”

Judges have yet to rule on these transfer requests. Prosecutors argued in their responses to Cudd's and Worrell’s motions that if Republican-affiliated defendants in other politically explosive cases could get a fair trial in DC — from Trump ally Roger Stone all the way back to the Nixon administration officials charged in the Watergate scandal — so could they.

“The District’s voting record hardly suffices to establish a presumption of prejudice so invidious that this Court should not even attempt to select such a jury,” prosecutors wrote. They also argued that these types of motions were premature and that any fight over whether the pool of potential jurors in DC is tainted should wait until the court actually attempted to seat a jury.

Medvin, who is representing five people charged with participating in the Capitol riots, according to court records, declined to comment. Court rules limit what attorneys can say about pending cases; the US attorney’s office in Washington got in trouble after former acting US attorney Michael Sherwin discussed details of the insurrection investigation during a sit-down with 60 Minutes and anonymous law enforcement sources shared information with the New York Times.

In addition to her work as a criminal defense attorney, Medvin is a conservative commentator, and she’s written and tweeted criticism of “cancel culture” before. In a column for Townhall, a conservative news site, she wrote in response to the nationwide protests last summer against police brutality and anti-Black racism spurred by the murder of George Floyd, “Discussions in U.S. society have come to a tragic halt because of the cancel culture that swallowed us whole: Americans have stopped speaking and started kneeling.”

Pierce is representing three clients charged in the Capitol insurrection, according to court records. He’s known for taking on clients connected to conservative politics and causes — previous clients include Trump lawyer Rudy Giuliani, former Trump campaign adviser George Papadopoulos, who pleaded guilty to lying to investigators in the Russia probe, and Kyle Rittenhouse, who is charged with killing two people and injuring another during a protest last summer after a police shooting in Kenosha, Wisconsin. (Pierce had represented Rittenhouse along with conservative lawyer L. Lin Wood but was fired earlier this year, according to the Kenosha News.)

The bar is high for defendants to convince judges to move their trials. In 2010, the US Supreme Court ruled in the case of Jeffrey Skilling — the former CEO of Enron who was charged in connection with the energy company’s collapse in late 2001 — that a federal district judge was correct to deny his request to take his case out of Houston. The intense publicity surrounding Enron’s demise and the fact that much of the immediate economic impact was felt in Houston weren’t enough to prove that the jury pool was so tainted that Skilling couldn’t get a fair trial, the court held.

In a large and diverse city like Houston, it was more likely that a court could find 12 impartial jurors, compared to other cases that were moved out of smaller, more insular communities, Justice Ruth Bader Ginsburg wrote at the time. News coverage of Skilling was “not kind,” she wrote, but it also didn’t feature “blatantly prejudicial information of the type readers or viewers could not reasonably be expected to shut from sight,” such as a confession.

Federal district and appeals court judges repeatedly rejected efforts by Dzhokhar Tsarnaev, charged in the 2013 Boston Marathon bombing, to get his case moved out of Boston. In a February 2015 opinion, the US Court of Appeals for the 1st Circuit panel noted examples of other high-profile terrorism cases that judges had refused to move: the prosecution against the 1993 World Trade Center bombing conspirators in Manhattan, and against one of the 9/11 conspirators in Alexandria, Virginia, a short drive from the Pentagon. Prosecutors cited those cases and Tsarnaev’s in their brief responding to Cudd and Worrell.

Cudd proposed moving her case to Texas, where she and her codefendant, Eliel Rosa, live. Medvin argued in her March brief that the government intended to use evidence against Cudd — specifically, a 25-minute video that she had posted on Facebook after the riots — that went beyond simply proving whether she went into the Capitol. In the video, Cudd talks about her support for Trump and the “patriots” who participated in the riots, as well as her own role in breaking into the building.

“Fuck yes, I am proud of my actions. I fucking charged the Capitol today with patriots today. Hell yes, I am proud of my actions,” she says at one point in the video, according to charging papers.

The case was “factually political, through and through,” Medvin wrote.

Cudd’s motion cited federal election records that showed DC residents overwhelmingly voted against Trump in 2016 and 2020 as proof that they were the “most politically prejudiced jury in the entire country.” Medvin argued the jury pool in DC was tainted by all the media coverage of Jan. 6 as well as the “militarization” of downtown DC for weeks after the assault.

Beyond that, Medvin pointed to numerous articles about Cudd specifically — her request to go to Mexico received extensive media coverage, including in BuzzFeed News — and public commentary about whether she and other people charged in the riots were benefiting from white privilege and were part of a broader white supremacist movement.

In their response, prosecutors argued that Cudd was overstating how much DC residents were likely to remember the details of her case by the time it went to trial. They also wrote that her argument that the DC news market was uniquely tainted by coverage of Cudd was undercut by the fact that she’d given an interview to a local news station in Midland, Texas, where she was arguing to have the case moved. In the interview, she talked about going into the Capitol and how she’d “do it again.”

Pepe and Worrell are both members of the Proud Boys, according to charging papers. Pepe is charged with being part of a conspiracy with other members of the extremist group and coordinating with them to break into the Capitol. He’s arguing to move his case to New York, where he lives. Worrell is charged with deploying pepper spray gel against police on the grounds in front of the Capitol; he’s arguing to move his case to his home state of Florida.

A BuzzFeed News investigation, in partnership with the International Consortium of Investigative Journalists, based on thousands of documents the government didn't want you to see.

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