WASHINGTON - The Lebanon man who is seeking to have his trial in the Capitol unrest of Jan. 6 moved to Maine was rebuffed in a recent prosecution brief that argued it was premature to seek a venue change until and unless jury selection in DC suggests an overwhelming prejudice.
The defense attorney for Kyle Fitzsimons, of Gully Oven Road, Lebanon, Maine, had filed a brief on his behalf last month saying that amid the heavily politicized environment inside the beltway among a population that is overwhelmingly liberal and Democrat, a fair trial was impossible.
In a 28-page brief Fitzsimon's public defender, Natasha Taylor-Smith, argued that "detrimental pretrial publicity and community prejudice in Washington is so likely to have infected the jury pool that (it) must be presumed as tainted."
She also acknowledges Fitzsimon's case is purely political and a Washington jury "is the most politically prejudiced jury in the country."
Taylor-Smith laid bare the prejudicial ebb and flow inside the Beltway referring to President Biden, himself, who in a Jan. 26 speech referred to the crowd at the Capitol as a group of "thugs, insurrectionists, political extremists, and white supremacists."
However, U.S. Attorney Matthew M. Graves in his rebuttal to Taylor Smith's objection, said the defense motion on venue should be "denied as premature."
Graves argued that most precedent indicates venue transfer can only be sought after the jury pool is shown to be prejudice, not before.
He also dismissed the defense notion that overwhelmingly prejudicial media coverage should force the venue change, noting that no venue change was approved for Boston Marathon bomber Dzhokhar Tsarnae; Zacharias Moussaoui, who conspired to commit the September 11 terrorist attacks; Ramzi Yousef and others who committed the 1993 World Trade Center bombing; or even former Attorney General John Mitchell and others charged as part of the Nixon-era Watergate scandal.
Fitzsimons was arrested at his Gully Oven Road home in Lebanon on Feb. 4 and remains incarcerated 10 months later, while speedy trial requirements are continuously waived in the District of Columbia District Court "in the interest of justice."
A 10-count indictment filed against Fitzsimons in February accuses the husband, father of one and former Hannaford butcher with obstruction of an official proceeding, entering and remaining in a restricted building or grounds, disorderly and disruptive conduct in a restricted building or grounds, engaging in physical violence in a restricted building or grounds, disorderly conduct in a Capitol building or grounds, act of physical violence in the Capitol grounds or buildings, two counts of civil disorder and two counts of inflicting bodily injury on certain officers.
Fizsimons pleaded not guilty on all charges during an April arraignment, which came more than 10 weeks after his arrest in Lebanon.
He was denied bail during his detention hearing on April 7 with Magistrate Judge G. Michael Harvey of the U.S. District Court for the District of Columbia presiding.
During the hearing, however, Harvey questioned Assistant U.S. Attorney Puja Bhatia as to why no plea deal had been offered Fitzsimons.
"Why no plea deal, the government doesn't need more investigation for this case," Harvey said adding that Fitzsimons was not part of any organized violence like the Proud Boys or the Oath Takers.
"This is not a complex case," he added. "Three months in, no plea?"
Now it's been 10 months. If a plea deal has been offered, it's not been disclosed.
Fitzsimons faces more than 40 years in jail if convicted on all counts.
No timeframe has been given for a judge to rule on the change of venue.