An attorney for one of the two men charged with assaulting the late U.S. Capitol Police Officer Brian Sicknick and others claimed at a hearing on Tuesday that his client used a “small can” of something other than bear spray in the alleged attack.
Both George Tanios and Julian Khater have previously been denied pretrial release for their charges in connection with the Jan. 6th riot. They both renewed those motions the day after the D.C. Medical Examiner’s office ruled that Sicknick died of natural causes following the Jan. 6th siege. Neither of them mentioned the news of Sicknick’s autopsy report finding he died from two strokes, not homicide, and prosecutors have not accused either of any role in the officer’s death.
On Tuesday, their defense attorneys asked U.S. District Judge Thomas F. Hogan to consider releasing Tanios and Khater. The lawyers attempted to recast the prosecution’s allegations during oral arguments that spanned roughly two hours.
In video footage from the Capitol riots, Khater could be heard telling Tanios: “Give me some of that bear shit.”
Prosecutors also quote Tanios responding “It’s early” and “Not yet,” prompting an objection by his defense counsel Elizabeth Gross. She claimed that Tanios also said “Don’t do it, don’t do it,” a line that the prosecution countered is not inconsistent with planning for a future spray attack.
Khater’s lawyer Joseph Tacopina said that his client used a different form of “mace” or “pepper spray.”
It is undisputed that Khater was accurately quoted asking for “that bear shit,” that Tanios bought Frontiersman brand bear spray before the event, and that the men had the canister of it that day.
Assistant U.S. Attorney Gideon Light conceded that Khater sprayed something else, but he added that the bear spray remains relevant to showing their intent.
Asking why the men would go to Washington, D.C. with bear spray, Light added drolly: “It is uncontested that there are no bears in downtown Washington, D.C.”
The line was aimed to undermine the defense’s claim that Khater used his spray spontaneously, after being doused with pepper spray by authorities at the Capitol.
Tacopina began his oral arguments on the same note as his written briefing, acknowledging that the attack on the Capitol was an emotional event.
“It is hard not to think of the events that unfolded on January 6th and not have a visceral reaction – particularly, as rioters entered the Capitol Building by breaking windows and ramming open doors,” Tacopina wrote in a 28-page brief last week. “But Julian Khater was not one of them. He never entered the Capitol Building, never sought to threaten members of Congress, and never intended to forcibly interfere with the peaceful transfer of power. Instead, the act attributed to him was a limited and isolated one, that never transgressed the barrier that lay directly before him.”
Continuing along that line, claiming that he did not make contact with a police officers and pointing out the hedges in the prosecution’s allegations of Khater “appearing” to spray a canister “in the direction” of law enforcement.
Prosecutor Light did not mince words during the hearing in alleging that Khater “walked straight up to three police officers and sprayed them directly in the face.”
“The idea that he was far away and this was a distant attack” is not supported by the video, Light said, before rolling tape on the footage. The prosecutor narrated that video for a substantial portion of the hearing.
Khater’s defense has offered a hefty package of a $15 million bond guaranteed by 15 family members, home detention with electronic monitoring and surrendering of “any and all passports” that he has. Tacopina called the size of the proposed bond “unheard of” for the U.S. district court in Washington, D.C.
Distancing his client from members of extremist groups charged with storming the Capitol, Tacopina said that Khater “was not a part of a far-right neo-fascist organization.” He called the image of his client as a “zealot, hell-bent on destroying democracy” as “fanciful.”
Both Tanios and Khater cited the U.S. Court of Appeals for the District of Columbia Circuit ruling that has proved to be a boon for numerous accused Capitol rioters: the case of so-called “zip-tie guy” Eric Munchel, who was seen circling the Senate in tactical gear carrying tactical restraints.
Judge Hogan reserved decision on the detention motion. He said that he will review the video evidence to clarify the factual record before aiming to deliver the ruling orally in early May.
(Screenshots from Justice Department documents)
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