Jan. 6 Proud Boys Trial Paused as Defendant Attorney Alleges FBI Altered Evidence

Attorney Steven Metcalf (2nd from left), representing defendant Dominic Pezzola for his role in the Jan. 6, 2021, Capitol breach, arrives at the E. Barrett Prettyman United States Courthouse on Dec. 19, 2022. Win McNamee/Getty Images

The trial of Dominic Pezzola, one of the defendants of the Jan. 6, 2021, Capitol breach, was paused on Thursday due to classified FBI messages revealed in court, which the defense attorneys say show FBI agents discussing the altering of evidence.

Pezzola is one of the Proud Boys members on trial for obstruction and conspiracy charges related to the Jan. 6 Capitol breach. He was arrested on Jan. 15, 2021, and indicted the same month. Pezzola’s trial began in January of this year.

“There are a couple of emails between FBI agents casually discussing altering a document and destroying hundreds of pieces of evidence. It’s very disturbing and right now we have more questions than answers,” Roger Roots, an attorney at John Pierce Law who represents Pezzola, wrote to The Epoch Times. Roots confirmed that Washington District Court Judge Timothy J. Kelly, a Trump appointee, paused the trial on Thursday after the leaked messages were shown in court.

The exchange Roots referred to came into light on Wednesday during the testimony of FBI special agent Nicole Miller, who was involved in the agency’s investigations of the Jan. 6 defendants.

When cross-examining Miller, Nick Smith, an attorney representing Proud Boys member Ethan Nordean (listed as co-defendant on Pezzola’s case), revealed classified FBI emails that were hidden in a tab in an Excel spreadsheet. Roots, in Pezzola’s case, used this evidence to support a motion to dismiss (pdf) the charges against Pezzola, which Roots’s team filed on Wednesday.

In the motion, Pezzola’s team said the emails showed that the FBI monitored communications between Nordean and his lawyer, violating the Sixth Amendment, which prohibits invasions of the right to counsel (Matter of Fusco v. Moses).

“In the Nordean case, confidential attorneys-client trial/defense strategy and position was wrongfully obtained by the government, about which was overheard, shared, utilized, where potentially ‘338 items of evidence’ were ordered to be ‘destroyed,’ said Pezzola’s legal team in the motion to dismiss.

According to a separate filing by Nordean’s lawyers, Miller said in one correspondence that “[her] boss assigned [her] 338 items of evidence [she has] to destroy”; Nordean’s lawyers allege that another email show an agent requesting Miller to “go into [a] CHS [informant] report” that Miller “just put [together] and edit out that [the agent] was present.”

The emails show Miller “admitted fabricating evidence and following orders to destroy hundreds of items of evidence,” Pezzola’s lawyers wrote in its motion to dismiss, and that the government obtained information that benefitted itself in the trial, causing substantial prejudice to each of the defendants, including Pezzola.

“If justice means anything, it requires this case to be dismissed,” Pezzola’s lawyer said.

Roots is representing Pezzola on a pro bono basis. Legal non-profit National Constitutional Law Union (NCLU) is helping cover Roots’s expenses while he is in Washington, according to NCLU Executive Director Natalie Danelishen.

“My thoughts are we need a longer pause to get to the bottom of some of Agent Miller’s emails,” Roots told The Epoch Times.

As of Thursday evening, the court has not issued an order responding to the motion to dismiss.

Alleged Brady Violations

In addition to their argument about the Sixth Amendment, Pezzola’s lawyers also argued in their motion to dismiss that newly surfaced footage of events of the Jan. 6 Capitol breach constitutes exculpatory evidence. The defendants’ lawyers say the government, by withholding that evidence, violated their client’s constitutional rights as defined in Brady v. Maryland, a 1963 case in which the Supreme Court held that prosecutors must make available exculpatory evidence to defense counsel.

The defendants’ motion comes two days after House Speaker Kevin McCarthy (R-Calif.) released more than 40,000 hours of Jan. 6 footage to Fox News’s Tucker Carlson, who then aired some of the footage on his show on Monday and Tuesday.

One tape aired Monday showed Capitol Police officers walking alongside Jacob Chansley, a Jan. 6 defendant serving a 41-month sentence after pleading guilty to an obstruction charge. Chansley was unarmed and walked past several Capitol police officers.

The aired footage “is plainly exculpatory,” Pezzola’s lawyers said in the motion.

The FBI declined to comment and referred The Epoch Times to the U.S. Attorney’s Office for comment.

U.S. Attorney’s Office did not provide The Epoch Times with comment by press time.