The U.S. Court of Appeals for the D.C. Circuit heard arguments Tuesday on whether D.C. jurors are unfairly biased against people charged with committing crimes at the U.S. Capitol on Jan. 6, 2021. It’s a question with relevance for former president Donald Trump, who plans to try to get his trial moved out of D.C. where he faces federal charges of trying to subvert the 2020 election.
The appeal comes from Thomas Webster, a veteran of the New York Police Department who tackled a D.C. officer on the grounds outside the Capitol. He was sentenced to 10 years in prison. Webster was convicted of assaulting a police officer in 2022. He has argued for a new trial, saying D.C. jurors were biased against him through media coverage, their own experience of Jan. 6 and their political leanings.
The three judges focused narrowly on whether trial judge Amit P. Mehta properly let three people onto the jury. One said before trial that he “wasn’t a fan of Trump,” whose supporters are “not fun to be around when they’re being wild around the streets.” Another said she felt unsafe during the Trump presidency as a Black woman. “I don’t have a high opinion of former President Donald Trump, and by extension, I don’t think his supporters are particularly smart for supporting him,” the third said.
The Justice Department emphasized that each of those jurors had also said they would acquit Webster if the government did not demonstrate his guilt beyond a reasonable doubt. Defense attorney Elizabeth Brandenburg said that was “a very problematic question” because “a biased juror” would be more likely to believe the government had met that standard.
Judge Patricia A. Millett, an Obama appointee, said it was “very, very worrisome” that a potential juror who agreed that Trump supporters have a “slight disadvantage” with her was not taken out of the pool. But that person was not on the actual jury.
The D.C. Circuit last considered juror bias in 1976, rejecting 5 to 1 an attempt by three of President Richard M. Nixon’s aides to undo their convictions for involvement in the Watergate scandal. “Except in the most extreme cases,” the court says, a trial judge’s “subjective reaction” to whether jurors can be impartial should be respected.
The Nixon staffers had protested that Watergate coverage led D.C. residents “to feel that they were patriots repelling an attack on their country by an enemy within the gates.” Webster likewise said of Jan. 6 that “the media and Government characterized the events as an assault on our democracy stoked by the outgoing president, which makes every citizen a victim.”
In a poll of D.C. residents conducted by the federal public defender’s office cited by Webster, 71 percent said that from what they had heard, those arrested for involvement in the Capitol riot were guilty of the charges brought against them. Only 54 percent of a comparison group from Atlanta said the same. But roughly half of both groups — 52 percent of D.C. residents and 45 percent of Atlantans — said that they would likely find an individual Jan. 6 defendant guilty if sitting on that person’s jury.
Mehta said before Webster’s trial that the polling showed that despite broadly unfavorable views many D.C. residents would be able to keep an open mind at trial. “The appropriate way to identify a biased juror pool is through voir dire,” he ruled, a reference to questioning potential jurors undergo before trial.
The Nixon aides also did a poll showing that before the trial started, 61 percent of D.C. residents thought the defendants were guilty. The D.C. Circuit dismissed those results for similar reasons to Mehta, saying “a poll taken in private by private pollsters and paid for by one side” is not worth as much as public questioning by a judge through “procedures, practices and principles developed by the common law since the reign of Henry II.”
The government has an argument in Webster it cannot make in Trump’s case — that potential jurors know about Jan. 6 generally but not the defendant specifically. Only one person in Webster’s jury pool had heard of him, according to the court record.
Trump has not filed a motion to move his D.C. trial, which is on hold while he argues he is immune from prosecution. But he has repeatedly said he cannot get a fair trial in the city when he is “calling for a federal takeover of this filthy and crime ridden embarrassment to our nation.” Special counsel Jack Smith said that the way to handle Trump’s “disparaging and inflammatory attacks on the citizens of this District” was for Judge Tanya S. Chutkan to bar him from making them. But the gag order imposed on Trump allows him to insult D.C. residents. One appellate judge said it was “hard to see how” any ruling would “succeed in preventing a trial in the court of public opinion” for Trump.
The U.S. Supreme Court, which is already considering upending the government’s use of the lead felony charge used in Jan. 6 cases, could also hear Webster’s appeal. The Court has not overturned a guilty verdict because of media coverage since the 1960s. Two rulings in favor of defendants claiming bias from pretrial reporting involved confessions made public in the press. In a third, the trial began two weeks before an election involving both the lead prosecutor and the judge; journalists were given so much leeway in the courtroom that the defendant couldn’t speak privately to his lawyers.
Webster is also arguing that he should have been able to question the integrity of the officer he was accused of assaulting by invoking an incident from June 2021. The officer, Noah Rathbun, killed a man described as armed with a rifle and holding a woman against her will. He was cleared of any wrongdoing by the Justice Department in December; Webster went on trial the following spring.
