We are back to our regular program of making jurors wait for at least an hour before they enter because the judge and attorneys are working through a series of motions over evidence.
The government wants to include a message from Jeremy Bertino sent on 6:07 p.m. on Jan. 6, 2021, where he told fellow Proud Boys “We failed.”
Prosecutor Erik Kenerson says this and other statements that the government wants to introduce into evidence go toward Bertino’s state of mind.
According to Kenerson, those statements “reveal a great bit about the existence and scope of the conspiracy” to stop congress from certifying the election by force. And saying “we” and then “we failed” goes toward intent.
The conspiracy charge was not a conspiracy to storm the Capitol. It was a conspiracy to stop the certification by any means necessary, Kenerson said.
“A lot of statements fall under the bucket of encouragement to keep going, [and there’s] discussion [among Proud Boys] of what comes next, And [regarding] statements that are made along those lines before the election is certified, the only requirement is that they be in furtherance of the conspiracy,” Kenerson said.
If Bertino is discussing in that text what is next, if anything, the Justice Department believes this goes to the heart of furthering the conspiracy.
Even if the court disagrees with that conclusion, the use of “we” goes toward the state of mind, Kenerson underlined.
The prosecution expects that once Bertino comes under cross, there will be many questions from the defense about the alleged agreement reached. When former Proud Boy Matthew Greene testified, questions by the defense were predominantly about whether an agreement was express, implied, or non-existent.
Judge Kelly said in court this morning that “a lot of statements” from the Proud Boys in evidence are about “pushing forward” toward Jan. 6 and are clearly co-conspirator statements but he thinks it will be “trickier” to make that claim once you get to a point in the timeline of Jan. 6 where the Capitol is cleared.
“I don’t have to determine whether the conspiracy ended or not, the argument that the statements come after that are truly in furtherance of it, starts to get much weaker,” Kelly said. “Whether you want to call it post-conspiracy or post-riot, I do think statements of both prior and whenever the conspiracy ended can reflect the co-conspirators state of mind. I accept that. That’s true. But it’s a little—I don’t think its the same analysis preconspiracy or preriot, if we put it that way, as post-riot, as we always had. The government offered many statements during the conspiracy, pre-Jan. 6 as circumstantial evidence of the declarant’s statement of mind in various ways… to the extent the statement does reveal a sort of truth, a person had a plan or intent, it would come in under anyway and you can construe it as an assertion of a person’s state of mind. Here, once on the other side, at least, of the riot, is less clear to me.”
Kelly continued thinking aloud. The ‘we failed’ remark could be an implied assertion that there was a plan to do something, he said but it wouldn’t otherwise be admissible under certain evidentiary rules because its “backward looking.”
“But I think, if cross is anything like cross of [Matthew] Greene, at that point, that comes in as a prior consistent statement to rebut the claim that there was no plan,” Kelly said.
