WASHINGTON (KNWA/KFTA) — Before Richard Barnett, 62, of Gravette, returned to federal court on January 17 for the resumption of his January 6 insurrection trial, each side filed documents with the court regarding the defense’s opening statement.

On January 16, the government filed a motion seeking to preclude the statement, which the defense deferred, from including an “impermissible argument.”

“It has long been the rule that the opening statement ‘is not an occasion for argument,'” the filing noted, citing previous case law. “During opening statements, parties must ‘avoid making statements of fact to the jury not supported by proper evidence introduced during trial.'”

The filing also stated that “the opening statement should not attempt to appeal to the passions and prejudices of jurors.” It added that the court can step in to “exclude irrelevant facts” and “stop argument if it occurs” during an opening statement.

It went on to specifically request that the court preclude the defense from improperly arguing or mischaracterizing the facts or the law during its opening statement. It went on to note specific types of statements that should be barred, including:

  • Argument that the defendant was not violent.
  • Argument that other rioters were more violent than the defendant.
  • Argument that the government is attempting to hold the defendant responsible for the violent conduct of others.
  • Argument or implication that the defendant is not guilty because the “West Front” of the Capitol was more violent than the “East Front.”
  • Argument that the defendant was a “protestor” and not a “rioter.”

The filing provided an explanation for the reasoning to exclude each of those arguments.

Before court resumed on January 17, the defense submitted a response to the government’s motion.

“The proper use of an opening statement includes identifying for the jury what the case is about, and what it is not about, and what is in dispute. The opening statement helps the jury know what to be looking for throughout the evidence.”

Defense response to government’s motion to exclude, USA vs. Barnett, January 17

It continued by citing a federal rule of evidence, noting that the court may exclude relevant evidence if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The defense went on by calling the motion “untimely” and it cited the prosecution’s lack of consultation with the defense on the matter.

“Even though Defendant reserved his opening statement, thus presumably giving the Government more time, the Government waited during the entire case until the eve of Defendant’s opening statement to the jury to file a Motion in Limine that would restrict the Defendant’s opening statement already scripted and planned,” the reply said.

It called the motion “not implementable” and “not clear.” It added that “the Government’s witnesses are simply wrong” in their testimony about Barnett’s whereabouts during the insurrection.

The response also claimed that “the Government is attempting to hold the Defendant Barnett
responsible for the violent conduct of others because the Government cannot prove its case.”

In a separate filing, the defense moved to strike “invalid video identification and out of court identification” of the defendant. It asked the court to strike any testimony from certain witnesses that “cannot identify the Defendant because they do not know him.”

“The Government is routinely allowing analysts who have never met the various defendants to assume they know what he or she looks like from observing one video and then claiming that in their opinion another video also shows the same person as the other video, even though they have no personal knowledge or foundation to testify about either video.”

Defense motion to strike, USA vs. Barnett, January 17

The motion stated that government witnesses Emily Berrett and Captain Carneysha Mendoza “have no knowledge of Richard Barnett” and that “they do not know what he looks like and cannot identify him from videos.”

The motion concluded by asking the court to order that only those with “personal knowledge or valid evidentiary foundation” be allowed to testify about the identity of people in photographs or videos.

Barnett is charged with: obstruction of an official proceeding; aiding and abetting; entering and remaining in a restricted building or grounds with a deadly or dangerous weapon; disorderly and disruptive conduct in a restricted building or grounds with a deadly or dangerous weapon; entering and remaining in certain rooms in the Capitol Building; disorderly conduct in a Capitol Building; parading, demonstrating, or picketing in a Capitol Building; theft of government property.

He has pleaded not guilty to all charges. His trial was scheduled to resume on January 17.