Griffin’s lawyers have argued that his case is among the simplest to arise from the Jan. 6 investigation and shouldn’t require many months for prosecutors to share relevant evidence and prepare the case for trial. But prosecutors are facing competing pressures: their obligation to turn over an exhaustive database of evidence to all of the Capitol riot defendants while guaranteeing their right to a speedy trial.
“Thousands of people that were recording events on their phones and uploading it to social media. Every one of those phones that has a search warrant has to be searched and scoped,” said Assistant U.S. Attorney Emily Miller, the Justice Department’s point person to coordinate the handover of Capitol riot evidence to defense attorneys. “There’s going to be a lot of video that has to be processed in this case for months to come.”
Griffin’s case presents a confluence of challenges for prosecutors and judges in Washington as they grapple with the size and complexity of the Jan. 6 investigation. Courts are already facing trial backlogs because of delays caused by the Covid pandemic, and prosecutors have described the Jan. 6 investigation as the most complex in U.S. history, requiring intense resources to process a still-growing mountain of evidence.
Prosecutors are also under pressure from judges to prioritize gathering evidence for the dozens of Capitol riot defendants detained while they await trial, most facing assault or conspiracy charges.
McFadden said he understood the concerns raised by the Justice Department and Griffin, and he said the process of organizing evidence in the cases has taken longer than he expected. He said a mid-March trial date was the earliest he could set given the backlog resulting from Covid delays, even though Griffin has waived his right to be tried by a jury, leaving his fate up to the judge.
“I understand your frustration,” McFadden, an appointee of President Donald Trump, said to Griffin. “But we are where we are.”
Griffin noted he’s been the focus of a recall effort in New Mexico based on the allegations he broke the law on Jan. 6. “I’ve already been tried, convicted and sentenced from the local to the state to the national media,” he said. “The media can just continue to annihilate me and rip me to shreds on this.”
But McFadden said there was no disputing that prosecutors, who opposed setting any trial date in the case, were facing a complicated situation. “You were involved in an event that involved hundreds if not thousands of people,” he told Griffin.
Griffin, through his attorneys Nicholas and David Smith, is also pressing prosecutors to turn over videos allegedly showing U.S. Capitol Police officers removing barriers and waving on members of the Jan. 6 mob. Those videos, accompanying written misconduct allegation reports disclosed by the department earlier this month, are likely to become crucial evidence for Jan. 6 defense teams who say their clients thought they had permission to enter the building.
Most of the 38 misconduct reports gathered by the Capitol Police were determined to be unsubstantiated by internal investigators, and Miller said prosecutors are worried the substance of those reports could be used for “disinformation” or to harass individual officers. But she added that prosecutors intend to turn over all those video exhibits as soon as they are able to convert the video into a usable format, a process they expect to take at least another week.
Prosecutors are already processing thousands of hours of Capitol surveillance footage and body camera footage from the D.C. Metropolitan Police and other local agencies that responded to the riot.
But Miller also bristled at the notion that it’s prosecutors’ job to study every minute of footage from every phone, surveillance camera or police camera and decide which of it is relevant to each defendant. She said that the complexity of scouring the footage while constantly adding new evidence could require the government to seek to delay even the March 2022 trial date.
“There’s too many unknowns,” she said.