The Defense In The First Jan. 6 Trial's Closing Argument: Maybe The Evidence Is Fake

The jury is set to begin deliberating in Guy Reffitt's case on Tuesday.

WASHINGTON — After three and a half days of testimony and evidence from government witnesses in the trial of Guy Reffitt, the first person charged in the Jan. 6 insurrection to stand trial, the defense on Monday made a brief appeal to the jury: Key witnesses — Reffitt’s son and a former fellow militant group member — weren’t reliable. Video showing Reffitt at the Capitol couldn’t be trusted. And Reffitt himself was full of it.

Monday’s proceedings featured the final government witnesses and the defense’s pushback to the overarching prosecution theory that Reffitt planned well in advance to storm the Capitol, brought guns and other equipment to carry out that plan, and tried to lead the mob in the initial breach of the Capitol and resisted a barrage of projectiles shot at his body by police officers before being finally thwarted by chemical spray.

The jury is set to begin deliberating first thing Tuesday.

Reffitt is facing a five-count indictment that charges him with bringing guns to DC to support a “civil disorder,” obstructing an official proceeding or aiding and abetting, being in a restricted area with a handgun, interfering with police during a civil disorder that affects interstate commerce, and threatening his children to not cooperate with the FBI.

Reffitt’s lawyer William Welch III pitched to the jury that they should find Reffitt guilty of illegally being in a restricted area, but nothing else. Without the weapons enhancement, the maximum penalty for being in a restricted area drops from 10 years to one year, which Reffitt has already served in pretrial detention. Welch focused on the fact that Reffitt wasn’t accused of assaulting officers or actively interfering with them; Reffitt is not charged with assault.

Welch suggested that texts and recordings that the jury saw and heard of Reffitt describing in detail his role leading the mob up a stairway in front of the Capitol were him trying to puff himself up to make up for the fact that he ended up spending relatively little time in the fray: “Guy does brag a lot. He embellishes, he exaggerates.” Welch attempted to invoke inflammatory statements that former president Donald Trump and his longtime ally Rudy Giuliani made at a rally shortly before the insurrection, but US District Judge Dabney Friedrich sustained an objection from the government that cut him off.

A video taken at the Capitol by independent journalist Emily Molli that appeared to show Reffitt from behind, with a dark object attached to his pants, has been critical evidence for the government; they repeatedly showed the jury an enhanced, zoomed-in still image from that video. The object was the holstered handgun, the government contends, and they argued that the footage matched testimony from other witnesses and Reffitt’s own texts and statements about having a gun. Welch’s strategy to attempt to undermine that was to suggest the image and other videos might have been faked.

Welch last week asked an FBI witness who was involved in extracting content from devices seized from Reffitt’s home about “deep fakes,” a reference to videos where a real person’s face and voice are manipulated to make it seem as though they’re saying something they didn't actually say. The agent said she didn’t have any reason to think the videos she’d pulled from devices found at Reffitt’s home were altered. Welch circled back to this idea on Monday, referencing testimony from a US Capitol Police witness about safeguards in place to prevent alterations to surveillance footage and saying that the jury shouldn’t trust content that didn’t have those types of protections.

“You do not know who prepared them, how they were prepared, how they were enhanced or when,” Welch said.

Welch also questioned the fact that the FBI didn’t seize a holster that they said they found — and showed the jury a photo of — in Reffitt’s home, and instead used one that they bought on Amazon as a demonstrative. He questioned the integrity of Reffitt’s 19-year-old son, Jackson Reffitt, noting that Jackson had given interviews to the media and raised $158,000 to help support himself via a crowdfunding campaign. He questioned the reliability of Rocky Hardie, a former member of Texas Three Percenters who testified about traveling with Reffitt to Washington.

“This case has been a rush to judgment, most of it based on bragging and a lot of hype. Be the grownups in the courtroom: Separate the fact from the hype, find Mr. Reffitt guilty of count 3a, not guilty of the other charges. Thank you for listening,” Welch said.

The government’s closing arguments to the jury focused on presenting Reffitt as a leader. Assistant US Attorney Risa Berkower said that Reffitt’s decision to climb up on a railing and confront a small group of officers defending a “crucial chokepoint” made the initial breach of the building on the Senate side possible, even if he wasn’t there when rioters actually went inside. She displayed three images timestamped 1:48 p.m.: then–vice president Mike Pence presiding over the Senate, House Speaker Nancy Pelosi presiding over the House, and Reffitt standing on the stairway trying to advance up.

“On January 6, 2021, Guy Reffitt lit the fire of the very first group of rioters that breached the US Capitol building,” Berkower said, invoking similar imagery that Reffitt had used in texts that the jury saw.

As for Welch’s contention that Reffitt was just a big talker, Berkower said it was true that the evidence showed Reffitt bragging, “but he was bragging about what he actually did that day.” She highlighted messages Reffitt had sent leading up to Jan. 6 talking about removing lawmakers, and she argued that his decision to travel, in his words, in full “battle rattle,” with guns, armor, and zip tie handcuffs, showed that it wasn’t “bluster.”

In a rebuttal to Welch, Assistant US Attorney Jeffrey Nestler reiterated Berkower’s argument that Reffitt had bragged about the “truth,” noting that Reffitt’s descriptions of what happened matched testimony from other witnesses and videos from the Capitol. He brought up how Reffitt had shared in texts and his own words — he wore a camera attached to a helmet earlier in the day — how he knew he might be breaking the law to bring a gun, but felt it was justified.

“Ordinarily it’s impossible to know what a person is thinking … but in this case, the defendant has actually made it easy for you. He was open about his intent and his knowledge,” Nestler said.

“A bad effect”

Welch did not present witnesses in the trial, and Reffitt chose not to testify. After the jury left the courtroom for lunch, Welch made a motion to acquit his client, and said he’d submit his arguments in writing. He previewed that they’d focus on arguing that the government had failed to meet its burden to prove Reffitt aided and abetted the obstruction of an official proceeding, a felony charge that carries up to 20 years in prison.

Friedrich said she would not rule on Reffitt’s motion until after the jury had finished its work. She cited her fear that news of her decision and anything she said could get back to the jury via news coverage; throughout the trial, she’s referenced a recent trial in federal court in Manhattan where several jurors reported getting a push alert about the judge’s ruling dismissing former Alaska governor Sarah Palin’s defamation suit against the New York Times while they were still deliberating.

The government’s final witnesses included two US Capitol Police officers who engaged with Reffitt as he made his way up the stairway in front of the Capitol. Sgt. Adam DesCamp was carrying an FN-303 projectile launcher that day. He told the jury that when a call came over the radio for the “less than lethal” team to “launch” as rioters approached the Capitol, it was the first time they’d been directed to fire on demonstrators.

DesCamp described watching his colleague Shauni Kerkhoff, who has since left the force, confronting a man in a blue jacket identified as Reffitt; Kerkhoff testified last week, saying she gave Reffitt verbal warnings before deploying the pepperball launcher she was carrying. DesCamp said that Reffitt responded to Kerkhoff with words to the effect of “you can’t stop us all” and “let us in.” Questioned by Welch, DesCamp said Reffitt didn’t make a direct threat against Kerkhoff or other officers, but he believed it was “implied” given the situation.

The jury again saw a video they’d seen last week that showed Reffitt’s encounter with police on the stairway. DesCamp recalled how the pepperballs and more painful projectiles didn’t stop Reffitt, but pepper spray finally did. As the crowd surged up the stairs, DesCamp said he tried to block another doorway that led to a platform closer to entrances to the Capitol. He said members of the mob pushed against him, pinning his arms, and that they twice removed his gas mask, sprayed him with a chemical, and then replaced the mask. First it was a substance that seemed like a cleaning solution, and he said he felt OK to stay. But next it was bear spray, and “that had a bad effect,” he said, chuckling at the understatement.

Sgt. Matthew Flood told the jury that he was with DesCamp and Kerkhoff at the top of the stairway and deployed pepper spray against Reffitt. He said that as he moved down the steps to get closer to Reffitt, the danger increased because he’d left the police line and was at greater risk of being pulled into the crowd. Nestler, the assistant US attorney, had Flood confirm he was right-handed, and then asked why he was holding the spray canister in his left hand. Flood said it was so that he could access the firearm on his belt if needed.

Welch noted that Flood didn’t actually draw his gun. Nestler got back up to have Flood explain why. Flood said the officers were being overwhelmed and he’d noticed people in the crowd wearing tactical gear, which gave him the impression they could be armed. He said he was worried that if took out his gun, others in the crowd would do the same, making the situation even more dangerous. Flood at one point said it seemed as though Reffitt was “leading” the crowd behind him up the stairs.

Welch had both officers confirm that Reffitt never touched them, wasn’t involved in trying to disarm them or spray them, and that they didn’t see him inside the building.

The lead FBI investigator in Washington handling Reffitt’s case, Special Agent Thomas Ryan, walked the jury through evidence of Reffitt’s overall movements and timeline. Ryan explained that investigators pulled location data from a Life360 tracking app on Reffitt’s phone and plotted his movement from Wylie, Texas, to Washington between Jan. 4 and Jan. 6. The jury then saw the location data on Jan. 6 that showed his movement from a hotel in Georgetown to the National Mall, and then to the Capitol. The jury also saw a receipt for the hotel where Rocky Hardie, who traveled with Reffitt and received partial immunity to testify, said they’d stayed.

Questioned by Reffitt’s lawyer, Ryan confirmed that it was his idea to buy a holster on Amazon for the government to use as a demonstrative during the trial that matched the model of a holster that FBI agents found and photographed in Reffitt’s home, but didn’t take with them “for whatever reason.” On Friday, the lead FBI agent in Reffitt’s case based in Texas, Laird Hightower, showed the jury a photo of Reffitt at the Capitol wearing what he said was the same holster, along with a “silvery metallic linear object” in the holster that the government contends was Reffitt’s Smith & Wesson pistol.

UPDATE

This story was updated with additional information about the source of a video exhibit used by the government.


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