A Judge Refused To Let Two Capitol Rioters Appear By Video For Sentencing

“Defendants found the means to travel to Washington, D.C. to commit the crime to which they have pled guilty,” US District Judge Trevor McFadden wrote.

WASHINGTON — A judge won’t let a Florida couple who pleaded guilty to joining the mob that attacked the Capitol on Jan. 6 appear by video for sentencing after they cited how expensive it would be to travel to DC for their hearing.

In a terse order Thursday night, US District Judge Trevor McFadden signaled he was not impressed with the argument that traveling to Washington to come to court would pose a financial hardship for people who came to DC from across the country and participated in the riots in January.

“Defendants found the means to travel to Washington, D.C. to commit the crime to which they have pled guilty,” McFadden wrote. “Defendants can therefore find the means to return to Washington, D.C. to be held accountable for this crime.”

McFadden’s order is the latest to shed light on how the judges presiding over these cases are thinking about what accountability should look like for people who participated in the riots. Judges in other cases, for instance, have refused to let defendants and their lawyers use court proceedings to downplay their contributions to the violence that took place at the Capitol, to invoke comparisons to the protests last year against racism and police brutality, or to push the narrative that they were similar to “tourists.”

Last week, US District Judge Reggie Walton ordered two Capitol rioters who pleaded guilty to a misdemeanor crime to each pay $5,000 fines — a punishment that the government hadn’t asked for — explaining that “people have to understand that if you do something like this, it's going to hurt." In another Jan. 6 case involving a misdemeanor plea deal, McFadden previously imposed a $3,000 fine that prosecutors didn’t request.

Dana Winn and Rachael Pert were charged together and each pleaded guilty to a single misdemeanor count for illegally going into the Capitol; they were also indicted on one felony count for obstructing Congress, but the government agreed to drop that as part of their agreement. They’re scheduled to be sentenced before McFadden on Dec. 20. On Thursday, their lawyers filed a joint request asking the judge to change that hearing from in-person to video, noting the expenses that the pair would have to incur, including traveling from Florida, paying for a hotel, and arranging for care for Pert’s two children.

As part of their plea agreements, Winn and Pert each agreed to pay $500 in restitution; all defendants pleading guilty to misdemeanor crimes in connection with Jan. 6 are contributing that amount toward covering what the government has estimated was $1.5 million in damage to the Capitol. Their lawyers wrote that requiring them to pay to travel to DC could affect their ability to pay that restitution as well as any other fines or costs associated with their cases. The prosecutor handling the case didn’t oppose the request.

Pert’s lawyer declined to comment and Winn’s lawyer did not immediately return a request.

Throughout the pandemic, courts shifted to holding hearings remotely to limit the risk of spreading COVID-19. As vaccines became available this year, the federal district court in Washington has slowly resumed in-person hearings, although in many cases judges have continued to allow the parties and lawyers to appear by video. In some Jan. 6 cases, judges have allowed defendants to continue to appear by video for sentencing, although they’ve also expressed a desire to be back in a courtroom for hearings where face-to-face interaction is particularly important.

Winn and Pert are facing maximum sentences of one-year incarceration; in the roughly two dozen cases where Capitol rioters have faced sentencing, most defendants who pleaded guilty to misdemeanor crimes have received no jail time or a sentence on the low end of the spectrum.

The Florida pair had been photographed walking around together inside the Capitol, and a tipster who worked with Pert reported them to the FBI. Per the facts that they admitted to as part of their plea deal, they were recorded on video after they left the Capitol talking about going inside and how their goal had been to stop Congress from certifying the results of the election.

“We were inside!” Pert said, according to a transcript in court papers.

“And they were gassing us,” Winn said.

“We were trying to storm them to stop the vote and they were tear-gassing and forcing us out,” Pert said.

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