Late this afternoon, Judge Amit Mehta, who is presiding over the ongoing trial of five members of the Oath Keepers, (OKs), charged with seditious conspriacy, called a status hearing to discuss the morning’s news that OKs founder Stewart Rhodes had just tested positive for COVID-19. The hearing was attended by all members of the five defense teams, as well as by Assistant U.S. Attorneys Jeffrey Nestler and Kathryn Rakoczy, who represented the government.
The news of Rhodes’ symptoms and positive test immediately slammed the brakes on this trial’s progress. One week ago — last Monday — Mehta opened the day by acknowledging that the E. Barrett Prettyman United States Courthouse had decided to suspend their mask mandate and go to a “masks optional” status. It is believed that this federal building was the last in the country with a mask mandate still in place.
After Mehta’s announcement regarding the suspended rule, he continued by saying the mask mandate would remain in effect in his courtroom, so as to help prevent a COVID outbreak among jurors, defendants, or the attorneys. Mehta’s cautious approach likely stems from concern about the already-lengthy expected duration of the trial, (6 to 8 weeks). Compounding this reasonable apprehension is the very real likelihood that significant outbreaks of the virus could even cause disruptions sufficient to interfere with the ability of jurors and alternates to complete such a lengthy trial.
Mehta’s fears were proven well-founded when, ironically, on the very morning following his announcement on Day 9, Juror #13 tested positive with COVID and had to be dismissed, reducing their number from 16 to 15. (Ultimately, only 12 of the jurors who remain at the end of the trial will be selected to deliberate on the guilt or innocence of the defendants.)
The late afternoon status hearing was done by way of a Zoom connection between Judge Mehta and the various attorneys. Mehta opened with a lighthearted comment about how most of the attorneys had lost no time changing into more comfortable (i.e. non-courtroom) attire. He then quickly moved into the business of the moment, beginning with the offers made this morning by Rhodes’ lawyers. Firstly, “no” . . . Rhodes could not be accommodated with video feed to a separate, isolated courtroom in the Prettyman Courthouse. Mehta felt he could not risk having the U.S. Marshals responsible for transferring Rhodes from the Alexandria County Jail to the courthouse, be exposed to the virus.
Secondly, the possibility of a Zoom connection directly from the detention facility was nixed by that facility’s rules, which do not permit the movement of prisoners from isolation while quarantined during COVID infection.
Mehta then revealed to the assembled attorneys that he would be having a conversation with Rhodes at 9:00 A.M on Tuesday morning. He plans to inquire whether Rhodes would be willing to waive his Constitutional right of appearance at trial for a series of government witnesses that Rhodes’ own attorneys have deemed “inconsequential” to his case. Those witnesses, as identified by Rhodes’ defense team, are:
U.S. Capitol Police Officer Ryan Salke
U.S. Secret Service Special Agent Lanelle Hawa
D.C. Metro Police Officer Christopher Owens
These three government witnesses are ostensibly presenting evidence not directly related to Rhodes’ particular case. However, because Rhodes is a defendant in the overall case, he has the right not to waive his appearance during the presentation of these three witnesses, thereby preventing the Court from continuing until he returns to the courtroom. If Rhodes decides not to waive, the trial will have to be suspended for at least the remainder of this week — or, for a full ten days if the detention center maintains their hardline of a 10-day quarantine, rather than acquiescing to the CDC’s 5-day quarantine recommendation.
If Rhodes refuses the waiver request, the trial will not resume until at least next Monday, perhaps longer. Either way, the domino effect of rescheduling will affect almost everyone in the courtroom, and also necessarily postpones the intended beginning of the trial for the next batch of OKs facing the same charges. That trial, also presided over by Judge Mehta, is scheduled to begin at the conclusion of this one.
At the time of the publishing of this article, it is known that Rhodes and his attorneys met at 6:00 P.M. to discuss the possibility of his agreement to the aforementioned waiver. This includes the presentation of the three listed “inconsequential” witnesses, as well as the conclusion of the cross examination of FBI Special Agent Whitney Drew by defense attorneys, which was interrupted by the conclusion of proceedings on Friday.
Additionally, the two Assistant U.S. Attorneys have offered the possibility of up to six or seven total government witnesses they feel may all be inconsequential to Rhodes’ particular case, whose scheduled appearances can be “re-jiggered” before the Court and jury during Rhodes’ quarantine. Unfortunately, for all the parties worried about their calendars, the detention center has at present drawn a hard line on their 10-day quarantine requirement, which began today. Furthermore, even if Rhodes consented to waive his appearance for the testimonies of those “inconsequential” witnesses and the remaining cross examination of Special Agent Drew, those testimonies would not fill ten days. There will almost certainly be addional delays in this trial.
There is even the possibility that If Rhodes refuses to waive his right to confront these so-called “inconsequential” witnesses —causing the dominos to fall and upend so many people’s scheduling concerns — there is the nightmare specter of Mehta being forced to declare a mistrial, in which the entire spectacle must begin again sometime next year.
To add insult to injury, Stanley Woodward, the attorney for defendant Kelly Meggs, just this morning crashed his scooter and sustained severe injuries, for which he was treated in a local D.C.-area hospital emergency room. Woodard is also expecting the imminent arrival of a new baby and has previously appealed to the Court for a number of days off to be with the mother and chid. While no specific details are yet available on his injuries, it is known that a seriously broken arm is among them. Woodward was present on the status hearing call and assured the Court that “the hospital has ways” of ensuring he’ll be back as soon as possible. In the best-case scenario, the newborn will arrive during the break caused by Rhodes’ quarantine.
Though Mehta joked that Woodward might be getting a bit old for such activities, he expressed sincere concern for his health and condition.
For now, Judge Mehta awaits Rhodes’ decision on the appearance wavier option — to be discussed tomorrow morning at 9:00 A.M. — and expects everyone else in the courtroom at 9:30. The jury is in “on call” status for tomorrow. Mehta concluded the status hearing by saying he is “confident” there’s no possibility Rhodes will be back in court before next Monday.
——
Personal editorial comments:
Regardless of my personal biases toward the guilt or innocence of these five defendants . . . having observed Judge Mehta for three full weeks now, I’ve come to the conclusion he is easily the “smartest man in the room.” Maybe even the smartest jurist in D.C., where he has spent his entire career. Despite the fact that he doesn’t suffer fools or time-wasters gladly, he also has a gentle and accommodating spirit when appropriate. What can’t be dismissed by any honest observer, though, is the unfathomable political pressure he must be under with regards to this case. In my opinion, he has been far more lenient to the government’s presentations and objections than he has been to those of the defense. At times, I’ve felt he was fully in accord with the DOJ’s and Nancy Pelosi’s objective to crucify the OKs for being the “tip of the spear” conspirators they’ve been labeled as. Watching him in today’s status hearing, his objective humanity and constitutional adherence to the rule of law showed forth. I’m sure my daily opinions will continue to fluctuate, but I feel honored to observe these proceedings so closely and to see Mehta preside over them.
