A federal judge in the District of Columbia wants to make sure Richard "Bigo" Barnett of Gravette is OK with three of his four attorneys exiting the case before his sentencing.
"I must say it is rare in my experience for defense counsel to withdraw between trial and sentencing," U.S. District Judge Christopher R. Cooper said during a teleconference status hearing Monday. "We see it a lot between sentencing and appeal."
Barnett was found guilty in January of eight charges in connection with the Jan. 6, 2021, attack on the U.S. Capitol. He's scheduled to be sentenced May 3 and faces a maximum of 47 years in prison. During the attack, Barnett posed for photos with his foot on a desk in House Speaker Nancy Pelosi's office suite.
Joseph McBride of New York City, Brad Geyer of Cinnaminson, N.J., and Carolyn Stewart of Plant City, Fla., have filed motions to withdraw from Barnett's legal team. McBride is Barnett's lead attorney.
Those withdrawals, if granted, would leave Jonathan Gross of Baltimore as the lone remaining member of Barnett's legal team to handle his post-trial, pre-sentencing matters, including requests for an acquittal or new trial, and any possible appeal.
Gross filed a brief in another case March 16 saying he is "a constitutional rights attorney who has never in his life practiced criminal law."
"Sentencing law certainly is criminal law," Cooper said during Monday's hearing.
Cooper said he was aware of a motion Gross filed to postpone the trial of Christopher Quaglin, another defendant from the Jan. 6, 2021, attack on the Capitol. McBride withdrew from Quaglin's case, leaving Gross to handle it.
"Gross ... explained that he does not practice criminal law and that he is not competent to be Mr. Quaglin's lead attorney at the trial scheduled to begin in a few weeks," U.S. District Judge Trevor McFadden wrote in a March 23 order in the Quaglin case.
Quaglin's trial was to begin April 10, but McFadden vacated that trial date and ordered McBride and Gross to show cause as to why they shouldn't be referred to the court's Committee on Grievances for violation of professional conduct rules concerning competence, diligence and "candor to the tribunal."
Regarding Barnett's case, Cooper said, "I know that Mr. Gross is familiar with this case generally, but I don't know frankly what experience if any he has with federal sentencing.
"As I'm sure Mr. McBride and Mr. Geyer know, it is not as simple as simply standing up and advocating for one sentence over another," said Cooper. "There are often really technical disputes over whether particular sentencing guidelines provisions apply. There's a whole body of sentencing law out there to guide those determinations. There are often contested facts other than the facts found by the jury. Hearings sometimes involve the presentation of evidence and testimony of witnesses. When witnesses do testify, including in some cases victims, there is a right to cross-examination. ...
"Now, you folks may have discussed all of that with Mr. Barnett already, and Mr. Gross may be well up to the task," Cooper told Barnett's attorneys Monday. "I'm certainly not making any finding that he's not."
Cooper cited Rule 1.6 from the American Bar Association's Model Rules of Professional Conduct: "A lawyer may withdraw from representing a client if withdrawal can be accomplished without material adverse effect on the interests of the client."
"The court has an independent duty to make sure that withdrawal can be accomplished without material adverse consequences on Mr. Barnett and has an independent duty to make sure that Mr. Barnett's consent to the withdrawal is knowing and that he is comfortable putting those responsibilities in Mr. Gross' hands alone," said Cooper.
The judge instructed the attorneys to confer with Barnett in light of everything that was said in the hearing Monday, in which Barnett participated.
"By close of business Wednesday, file a notice on the docket telling me that you have consulted with Mr. Barnett and either he still consents to the withdrawal or that one or more of you will continue in the case to assist Mr. Gross with sentencing," the judge said.
After a long silence during which it appeared Cooper was about to end the hearing, Carolyn Stewart spoke up.
"I would like to say that I have less experience than Mr. Gross ...," she said. "It is not that I feel incompetent doing this, but we also have the issue of, I would just say, too many chefs in the kitchen."
She said Gross was prepared to handle Barnett's sentencing and the other three attorneys have offered to provide their help.
"I think it would be appropriate for Mr. Barnett to say now that he did confer with the withdrawals of the attorneys," she said. "There's no need to prolong this. ... I would just say that Mr. Gross is not on his own and he has also conveyed that he has other experts' advice that he has brought into this. So he's not just working from his home law office alone."
"I don't make any findings to the contrary," Cooper said. "We're here on Zoom. You all are in five different places. I think I would be more comfortable with your actually talking to one another, and then your advising me on how you should proceed. I think that's a prudent course, not only for the court but for Mr. Barnett, and frankly for you folks as well."
Then Brad Geyer spoke up.
"If I would have known that the court was uncomfortable, I probably would have been more strident about staying on," he said. "To me, this is just the sentencing proceeding, and all the issues have been thoroughly briefed all the way through. We were over-attorneyed. ...
"I just want to make it clear that no one is more devoted to the clients than me, and that includes Mr. Barnett. I continue to believe in his innocence and ... if the court feels more comfortable ..."
"Counsel, it's not about my comfort level, all right?" said Cooper. "It's making sure that Mr. Barnett's rights are protected, and that's your obligation, all right? There are standards for withdrawal, and it's my job to flag those, but it's your job to comply with them, all right? And I have to make sure that Mr. Barnett understands the implications of my granting this discretion. And then if you all tell me he consents, that's fine. But that consent has to be knowing, and he has to be consulted with.
"That's the purpose of this exercise, OK? You say it's just a sentencing proceeding, but to most criminal defendants, it's much more than just a sentencing proceeding, all right? It may be the most important proceeding in the case."
"Understood," Geyer said.
Also on Monday, Gross filed a motion asking for more time to file his response to the U.S. Probation Office's presentence investigation report. Gross' response is due April 12, but he observes the Jewish holiday of Passover, which is from Wednesday through April 13 this year.
In the hearing Monday afternoon, Cooper said, "That's not a court deadline."
The April 12 deadline was set by the person at the probation office working on the presentence report, he said.
"I don't know how many days you take for Passover," said Cooper. "I assume you don't have to stay home the entire period, but in any event I think that should be ample time for you to respond to the draft, and if it's not, my experience is that those deadlines are not hard and fast. The idea is to give the probation office enough time to incorporate your responses. ...
"Get whatever you can by that deadline, and then work with the probation officer to come up with a timeline for submitting the rest of the response," Cooper said. "But call -- I'm not sure who the provisional report writer is -- but contact that person and try to work it out amongst yourselves, OK?"