UPDATE (March 8, 2022, 2:00 p.m. ET): On Tuesday, a jury convicted Guy Reffitt on all five counts against him, including transport of a firearm in support of civil disorder and obstruction of an official proceeding.
The first trial of a defendant charged in the Jan. 6 attack began last week. It may be that the outcome of Guy Reffitt’s case can give us clues about how other cases will shake out. Certainly, many people will be watching closely for that reason.
Lawyers like to take credit for the outcome of cases — especially when they win. But the truth is, most trials are won or lost on their facts. With 12 jurors scrutinizing every word of testimony and every piece of evidence, they can usually figure out for themselves what actually happened.
With 12 jurors scrutinizing every word of testimony and piece of evidence, they can usually figure out for themselves what actually happened.
Certainly, the 700-plus Capitol riot cases that have been charged to date share a few key facts. So the jury’s reaction to Reffit’s case may provide a useful barometer for how other juries will respond. Any defendants still on the fence about pleading guilty may be waiting to learn Reffitt’s fate before deciding whether to take their own cases to trial. But the actions and intentions of each defendant vary, and so does their criminal liability.
Lawyers sometimes talk about “thinking like a lawyer.” It is not enough that someone did something bad or wrong — at least not for a conviction. Any lawyer worth his or her bar fees knows that to be convicted, a defendant must have violated a particular statute by engaging in the particular conduct that is prohibited while having the required state of mind. Oftentimes, when I served as a prosecutor, we would investigate conduct that seemed shady or reprehensible but violated no statute. “Slime but not crime,” we would call it. “Awful but lawful.”
The defendants in the Jan. 6 cases are charged under a variety of statutes, ranging from entering a restricted area to seditious conspiracy. Each defendant will be judged by their own conduct and intent. Some defendants are charged with simply following the crowd inside the Capitol; the frenzied consequences of a mob mentality. Others are charged with meticulously plotting to use force to obstruct the lawful transfer of presidential power. These two types of conduct violate very different statutes with very different penalties.
Reffitt’s alleged conduct falls somewhere in between these polar extremes. Prosecutors have said Reffitt is a member of the Three-Percenters organization, which the Southern Poverty Law Center describes as an anti-government paramilitary extremist group. Reffitt was charged in an indictment with civil disorder, obstruction of an official proceeding and obstruction of justice — the latter two offenses are each punishable by up to 20 years in prison.
The indictment also alleges that Reffitt brought a semi-automatic handgun to the riot and attacked two Capitol police officers, for the purpose of obstructing the certification of the Electoral College vote. According to prosecutors, Reffitt bragged on a messaging application that he “was the first person to light the fire on the Capitol steps.” Prosecutors allege Reffitt specifically targeted House Speaker Nancy Pelosi. According to the government, Reffitt said before the attack, “I don’t care if Pelosi’s head is hitting every stair as I drag her by her ankles, she is coming out.” And in an alarming addendum, Reffitt allegedly later used physical force and threats to intimidate his two teenage children from reporting his conduct to the FBI. On Thursday, Reffitt’s 19-year-old son testified against him. “I don’t regret it, but it’s a lot,” the teen said. “I don’t have words to really describe it. I think this is the best-case scenario.” It was an emotional moment, and obviously one that will feel unique to this case. Jurors may find the evidence persuasive and return a conviction. Or, after assessing the testimony, video recordings, text messages and other evidence, they may have reasonable doubt as to Reffitt’s guilt. Maybe they will disagree with the government’s use of a defendant’s children as witnesses against him. Any decision in this case will be limited to the facts these 12 jurors saw and heard in court. The point is, we must be careful not to read too much into this decision, even though it may indeed serve as a harbinger of cases to come. Each defendant is entitled to his day in court and due process of law. Anything less would be a betrayal of the values our government is seeking to protect with these prosecutions.
Barbara McQuade is a former Michigan U.S. attorney and legal analyst. 
