Professor Jonathan Witmer-Rich was quoted extensively in an article on Law360 titled “Attorneys Take Kitchen Sink Approach in Fighting Jan. 6 Charges.” The article discusses pretrial release and detention of January 6 defendants, as well as several defenses that defendants have attempted to raise.
Professor Witmer-Rich commented on various defenses raised by January 6 defendants, such as the claim that they did not know the Capital grounds were “restricted” at the time of the riots. He observed, “Sometimes you raise things when you’re not sure how the facts are going to develop. Or it’s a novel situation, so you make any argument you can make.” But on the question of whether the grounds were restricted at the time of the protests, he noted that “having seen the videos, it seems kind of obvious that they were. There were officers who were trying to prevent people from entering.”
Professor Witmer-Rich also discussed the litigation over whether specific defendants should be detained due to their dangerousness. He noted that the question of “dangerousness” is an “amorphous standard” and that it’s “not unusual to see the parties really disagreeing about that and disagreeing about what kind of evidence really indicates dangerousness.”
Several January 6 defendants have challenged their detention orders on appeal, and at least one defendant has been released as a result. Professor Witmer-Rich noted that this is relatively unusual: “we have a lot of indigent defendants who sit in pretrial detention, often for very long periods of time. Rarely are there cases being appealed to a court of appeals to determine whether that detention order was really valid or not.”