The jury pool, such observers say, was unexpectedly cool to the Trump administration generally and more specifically to federal immigration enforcement.
Amber Lowrey, whose sister Savanna Batten is among the Texas defendants, told Raw Story that when prosecutors questioned potential jurors, “a lot … spoke out about what ICE is doing and expressed disapproval for the Trump administration,” while “some had family members affected by deportation.”
Batten is charged with material support for terrorists. The basis for the charge, Lowrey said, was bringing a first aid kit to the Prairieland ICE facility on July 4 last year, where some defendants allegedly set off fireworks and vandalized property.
Batten, Lowrey said, had never met Benjamin Song, the only defendant charged with an act of violence, for the alleged nonfatal shooting of a police officer outside the facility.
Lowrey said court proceedings took a dramatic turn when a defense lawyer, MarQuetta Clayton, asked jurors to rate from one to five their agreement with the statement, “You cannot bring a gun to a protest.”
Responses were mixed, Lowrey said, but “neutral and disagree were more prominent than no, you absolutely cannot.”
At that point, Lowrey said, Pittman became “agitated” and told Clayton: “I don’t think you’re making good use of your time or the court’s time.”
After sending out the prospective jurors, Pittman scolded Clayton for her shirt, which reportedly depicted the Rev. Martin Luther King, Shirley Chisholm and “other civil rights protesters.”
Lowrey and other members of the support committee who watched from an overflow courtroom told Raw Story they were unable to make out the images on the shirt.
Pittman called a recess and said he was going to research the matter. When he returned, the judge announced he was declaring a mistrial.
Pittman appeared to be distressed by potential jurors’ responses to questioning by government and defense lawyers, Lowrey and other supporters said.
“He stated the jury had shown him that we are a ‘house divided,’” Lowrey said. “He said, ‘We’re too divided. We’re going to end up imploding on ourselves.’”
Lydia Koza, whose wife Autumn Hill is a defendant, said the judge made a remark about “fearing that his son would have to fight in a second civil war.”
‘Not going to get a fair trial’
Pittman ordered a new trial beginning on Monday.
“I believe the prosecution and the judge were not thrilled with the anti-ICE and anti-Trump sentiment in the jury pool,” Lowrey said. “I believe they are trying to roll the dice and get a more Trump-friendly jury.”
Support committee members also said it appeared clear that when a jury is selected and lawyers present arguments, defendants facing life imprisonment will have to closely regulate their emotions, to avoid drawing Pittman’s ire.
Lowrey told Raw Story she learned from her sister that federal marshals “told them that if they cry in court they will be removed from the courtroom because it makes the judge angry.
“They also told them that if they talk to, look at or ‘signal’ anyone in their family in court, the family will be removed from the courtroom and they will never see them in court again.”
“Visceral rage,” Lowrey said. “These people are not going to get a fair trial if this judge has anything to say about it.”
Katherine Miller, a spokesperson for the U.S. Attorney for the Northern District of Texas, had no comment.
Pittman could not be reached for this story.
Clayton’s law firm provided a statement saying she would not be able to speak publicly about Pittman’s displeasure over her shirt before conclusion of the trial and before a show cause hearing — indicating the judge is considering holding her in contempt.
‘Sheer volume of discovery’
Defense counsel have already been sanctioned in the case.
Last month, Pittman fined four lawyers $500 each for filing what he considered excessive and “frivolous” discovery motions.
Meanwhile, the judge is limiting the nine defendants’ time to make their case by denying a motion to expand the time allotted for each opening statement from eight to 20 minutes, while the government has 30 minutes.
Similarly, the government will have 45 minutes to make its closing argument, while each defendant will receive only 12 minutes.
Patrick McLain, the lawyer for defendant Zachary Evetts, said in a motion denied by Pittman that the time allotment violates his client’s Sixth Amendment right to effective counsel.
McLain said he plans to “challenge both the existence of a criminal conspiracy and the accuracy of the government witnesses’ description of events.”
The defendants are collectively challenging the government’s argument that their actions at the Prairieland ICE facility added up to an insurrectionary attack motivated by an ideological intent to overthrow the government.
Many of the defendants are expected to make arguments that differ from Song, as the one individual accused of firing a weapon.
While noting that the judge has called the case “complex” due to “the number of conspirators” and “sheer volume of discovery,” McLain said the time allotment is simply inadequate “to deliver an effective closing argument” and to address each of 10 counts his client faces.
The government has claimed the presence of firearms and body armor in a wagon and a parked car during the protest, along with first aid kits, proves that all nine defendants planned a violent attack.
‘Not risk of being killed’
Lawyers for the defendants previewed a potential Second Amendment defense during a probable cause and detention hearing last September, suggesting their clients’ actions were motivated by a concern they might need to defend themselves against state security forces.
Cross-examining FBI Special Agent Clark Wiethorn, the government’s chief fact witness, Cody Lee Cofer, Hill’s lawyer, said, “You’re telling me that it’s your opinion that it is not a risk for someone that is out protesting in the presence of law enforcement, for that person to be injured or killed by law enforcement?”
“A person peacefully protesting, I would say there’s not risk of being killed by law enforcement,” Wiethorn testified.
That was four months before two Border Patrol agents fatally shot Alex Pretti, an ICU nurse who was legally carrying a firearm, on a snowy street in Minneapolis.
That incident was greeted with widespread outrage, as Homeland Security Secretary Kristi Noem disparaged Pretti as a “domestic terrorist.”
