Shawn Witzemann, who faces four misdemeanor charges, was scheduled to plead guilty next week, but he changed his mind after U.S. District Judge Trevor McFadden, an appointee of President Donald Trump, found former federal contractor Matthew Martin not guilty during a bench trial.
McFadden said that prosecutors did not prove Martin knowingly entered a restricted building and that he may have believed police officers had let him into the building.
Guy L. Womack, an attorney for Witzemann, said the verdict in Martin's case was the "proverbial straw that broke the camel’s back" and led to Witzemann's decision to back out of the planned plea deal and take his chances at trial.
"He didn't want to plead guilty to begin with, but he was afraid to trust the judicial system in D.C.," Womack said, because of the court's proximity to the Capitol and the impact the attack on Jan. 6, 2021, had on Washington residents. But "seeing that the judge did the right thing" in the Martin case affected his thinking, Womack said.
Witzemann, in a message to NBC News, said he wanted to resolve the case "more than anyone" but a plea agreement would have forced him to lie under oath.
"After thoughtful consultation with my family, my attorney, and my God, it is obvious that trial is the only acceptable option at this time," Witzemann said.
Witzemann was arrested in New Mexico last April. His case isn’t before McFadden. Instead, he will go before Judge Thomas F. Hogan, an appointee of President Ronald Reagan, who has spoken out strongly about the seriousness of the Jan. 6 attack.
Hogan has called the riot “an insurrection” and “probably the worst thing that’s happened to our democratic way of life in our history except for the War of 1812.” He has also said the mob was trying to “overthrow the government” and that there was no plausible claim that what happened at the Capitol was protected by the First Amendment, and he has shown frustration with those who try to downplay the events of that day.
More than 775 people have been charged in connection with the attack on the Capitol, and more than 225 have pleaded guilty. As an overwhelmed Justice Department attempts to churn through hundreds of Jan. 6 cases that have already been charged and with hundreds more in the works, Martin’s acquittal could lead more Jan. 6 defendants to try their luck in court.
Several defendants have tried to get their trials transferred out of the nation's capital, arguing that a jury pulled from a population that overwhelmingly voted for President Joe Biden and was so closely affected by the Jan. 6 attack couldn’t give them fair trials.
Womack said Witzemann, who participates in a podcast called “The Armenian Council for Truth in Journalism" and has livestreamed other events, was reporting on Jan. 6 when he was at the Capitol.
"He was acting as a journalist," Womack said.