Josh Gerstein Profile picture
Feb 28 18 tweets 5 min read
Jury selection continuing at Reffitt #CapitolRiot trial. One notable Q added: whether jurors picked up the jury nullifcation pamphlet a man was handing out near the 3rd Street doors as jurors arrived this morning politi.co/3tcRuBj
1st potential juror up says he's read news about Jan. 6, but can only think of one individual defendant. 'The QAnon shaman he’s the guy I remember.' Later he says name Ashli Babbitt, but doesn't mention her being killed by police at the House doors
2nd potential juror, a lawyer, offers just as questioning is ending that she worked on Trump bankruptcy issues and also lived in a Trump building in NY. Asked if she has strong views about Trump, she answers: 'Not because of living in the building.'
3rd potential juror gets dismissed on defense motion after she says she regularly listens to @maddow podcasts and has 'strong thoughts that would be hard to change' and didn't think she could be '100% impartial'
4th potential juror is in 'a small but very serious' church choir and is the only Alto II and needs to be there Weds for Ash Wednesday....also follows the news 'voraciously'....'I have very strong political beliefs. I have very strong views about what happened that day.'
But, she says: 'I am an attorney. I believe in the system and I believe very strongly that I can be impartial.' Former Wilmer Cutler lawyer....
5th potential juror is first who seems to know anything specific about Reffitt. Recalls that he’s accused of having a firearm at the Capitol. Also: 'I view it as so beyond the pale of anything that was acceptable behavior….'
No. 5 continues…'I’d like to think I could be impartial, but I think that would be difficult.’ Defense moves to strike for cause. Prosecution opposes…Judge Friedrich notes he said he’s leaning to prosecution, excuses him
6th potential juror: 'I just think the attacks were just wrong against the government. It was dangerous for everyone who lives in the city. It was horrifying when I watched it.’ She lives 20 mins from Capitol. at 1 point says: ‘Maybe this isn’t the trial for me.'
No motion to excuse No. 6
7th potential juror lives on Capitol Hill, only has a clear memory of one #CapitolRiot participant: 'The only guy you can really recall is the guy with the horns on.’
8th potential juror is a lobbyist & former aide to @RepSchneider. Says ‘pretty horrified’ by events of Jan. 6. ‘I know the building well & have a lot of reverence for it.’ No motion to excuse.
@RepSchneider 9th potential juror: followed Jan. 6 news in weeks after but not as much recently, although has seen ‘more personal stories’ about Capitol police. Also recalls shooting of Ashli Babbitt but not by name.
@RepSchneider 9th: 'I certainly have feelings about what happened. I don’t think it would affect my impartiality.’ no motion
@RepSchneider 10th potential juror follows Jan. 6 news via @julie_kelly2 and a podcast with Lee Smith
@RepSchneider @julie_kelly2 This potential juror seems to know about arrest of Oathkeepers founder Stewart Rhodes. She also says she heard a podcast with Kelly talking about National Guard being on standby but not being called
10: ‘I thought this was probably going to be another fender-bender.’ But she says she leans one way, 'So I’m not sure if I could be impartial.’ Later adds though that she thinks she could be impartial.
10 says she was in Georgia for the runoff elections on Jan. 6… 'I am somewhat one sided in terms of the news that I get’….Brother is retired FBI, working mafia cases. Says FBI is ‘a wonderful organization.'

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More from @joshgerstein

Feb 16
JUST IN: 1st prosecution appeal in a #CapitolRiot #J6 case. Feds appeal to DC Circuit re: Judge Colleen Kollar-Kotelly’s ruling that split sentences of a modest or lengthy jail term and probation are not allowed in misdemeanor cases. Decision: bit.ly/3uVtPaX
CKK initially sentenced Virginia Spencer to 90 days jail + 3 years probation, but after her attorney protested, agreed that split sentences are illegal in such circumstances and dropped the probation.
Some other judges have given home confinement or shorter terms in a halfway house along with probation and that practice will likely not be addressed in this appeal. Chief Judge Howell has griped about misdemeanor deals making judges choose between jail time and long supervision
Read 6 tweets
Feb 14
As jury deliberates in Palin v. NYT, Judge Rakoff is considering NYT’s motion for judgment in its favor. He signaled Friday he wouldn’t buy paper’s argument that the editorial only referred to Palin’s PAC and not to her.
He just signaled he is chilly to argument that the editorial isn’t actionable because it wasn’t literally false. Judge: 'You can also argue that Cinccinnati should have won the superbowl, but perhaps that won’t be an adequate argument.’
Still on the table, Rakoff says, is whether a reasonable juror could find by clear and convincing evidence that NYT/Bennet acted with reckless disgregard of the truth, by not clicking on a hyperlink that led to ABC article which said no link between Palin group & Ariz. shooting.
Read 6 tweets
Feb 11
HAPPENING NOW: Closing statements beginning in Palin v. NY Times libel case in Manhattan federal court. Ken Turkel is closing for Palin. Earlier: politi.co/3oFsb9E
Turkel says Palin accepted ‘insults’ & ‘jokes’ during 2008 presidential race, but by time of NYT editorial in 2017 things had changed. 'The line had to be drawn at some point,’ Turkel said. 'We can disagree but you can’t say false things. That’s where the line gets drawn.'
Turkel claims that by 2017 Palin was powerless or near powerless to rebut the NYT. 'She did not have the same platform in 2017 as she had in 2008 or even in 2011 when the Tucson massacre occurred,’ he says.
Read 10 tweets
Feb 10
HAPPENING NOW: Ex-Gov. Sarah Palin back on the stand in trial of her libel suit against NY Times. Says she was flooded with speaking and campaign assistance requests starting in 2009 and late ‘really slowed down.' Earlier: politi.co/3B7aS6s
Palin just said that NYT ‘lied…again’ in 2017 by tying her rhetoric to violence. Objection from NYT lawyer because jury is only supposed to consider 2017 statements & unclear what Palin is referring to. She says she doesn’t have specifics. Now a rare sidebar--jury can’t hear
Judge Rakoff doesn’t like sidebars b/c they waste the jury’s time but some things can’t be fully argued in front of jurors, like what they should not be hearing. Any prior stories by NYT before 2017 would be well outside the statute of limitations and are not covered by the suit
Read 30 tweets
Jan 5
NEW: Garland parries criticism of Justice Dept. response to Jan. 6 #CapitolRiot. Story w/@kyledcheney politico.com/news/2022/01/0… A few thoughts on speech….
Garland made noises about DOJ prosecuting higher-ups or inspirers, without naming names, but there's been no sign that's actually happening and there are ways we would expect to know. He did say they're following the money. May relate to reported probe of Powell-linked groups
Garland has been EXCEEDINGLY circumspect about public comments on Jan. 6, because just as he arrived at DOJ, judges were slamming prosecutors over interview acting US atty Sherwin gave predicting sedition charges politico.com/news/2021/03/2…
Read 8 tweets
Jan 5
HAPPENING NOW: During hearing on #FARA case against Tom Barrack, his lawyer Dan Petrocelli again implies politics at work in indictment. Says investigation was done in mid-2019, but client wasn’t charged til 2021. Of course, may have been politics in his non-indictment, too
Issues around classified info expected to complicate case, Judge Brian Cogan says he’ll meet privately with defense counsel in May to hear their theories about what secrets could help their case. Later, he’ll meet with prosecutors about what’s actual in government files
‘That’s great,’ Lowell says about judge’s offer to meet with defense ex parte
Read 5 tweets

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