A defendant in the Proud Boys trial over Jan. 6, 2021, charges moved on March 9 to dismiss the case, after some footage from the day of the breach was shown for the first time.
Dominic Pezzola is one of the Proud Boys members on trial for obstruction of an official proceeding and other charges. The newly disclosed footage, shown on Fox News this week, “is plainly exculpatory,” Pezzola’s lawyers said in the new motion.
“It establishes that the Senate chamber was never violently breached, and—in fact—was treated respectfully by January 6 protestors,” the motion reads.
Among the clips Fox’s Tucker Carlson broadcast was one of Jacob Chansley, another defendant who’s serving a jail sentence after pleading guilty, walking around accompanied by police officers. The officers didn’t stop Chansley and even tried to open doors for him. He eventually made it into the Senate chamber, where he and others later knelt and prayed. Chansley, during the prayer, gave thanks to the officers for “letting us into the building.”
Pezzola also entered the Capitol, and prosecutors have argued that he and others being inside forced Congress, which was certifying electoral votes from the 2020 election, to go into recess.
However, the new footage shows that members “could have continued proceedings,” Pezzola’s attorneys said.
“It was not Pezzola or codefendants who caused the Congress to recess,” the attorneys said. “Congress interrupted its own proceedings.”
The lawyers are asking U.S. District Judge Timothy Kelly, a Trump appointee overseeing the case, to dismiss it. He’s asked in the motion to declare a mistrial if he rejects that request.
Prosecutors must not withhold evidence that can be exculpatory. The rule was crystallized in Brady v. Maryland, a 1963 Supreme Court decision.
“Suppression by the prosecution of evidence favorable to an accused who has requested it violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,” the decision states.
Zachary Rehl, another Proud Boys defendant, requested all information regarding Congress going into recess on Jan. 6, 2021, in late 2021.