Prosecutor: No vindictiveness in prosecuting Olyphant woman for Jan. 6 riot

Jun. 19—A federal prosecutor denies vindictively adding a felony charge against accused Jan. 6 rioter Deborah Lee because she rejected a plea deal and wants a trial.

Responding to defense attorney John Pierce's demand for dismissal of all charges, Assistant U.S. Attorney Alexander Diamond said federal Judge Amy Berman Jackson should let the case against the Olyphant woman go to trial.

"This is not a vindictive prosecution. It is a well-founded one," Diamond wrote.

In April, prosecutors convinced a federal grand jury to issue a new indictment that includes a felony obstruction of an official proceeding and aiding and abetting (obstruction) charge. That occurred almost 20 months after Lee, 56, was charged with four misdemeanors centered on illegally entering the Capitol on Jan. 6, 2021, and parading inside in a disorderly way. The felony can mean up to 20 years in prison. Two of the misdemeanors can bring up to six months in prison with the others punishable by up to a year.

In late April, Pierce asked Jackson to dismiss the case. He cited an email from Diamond that said no new case evidence had emerged before the felony was added, but that "the government's understanding of the evidence evolved."

Pierce called that "vindictiveness and retaliation masked as trial preparation" and a violation of Lee's constitutional right to a trial.

Not at all, Diamond contends.

Rather, the prosecution's behavior squares with a 1982 U.S. Supreme Court case that gave prosecutors a lot of discretion in deciding what charges and when to file. The ruling allows a prosecutor to file lesser charges to pursue a plea agreement and avoid a costly and time-consuming trial, Diamond said.

If the plea deal never materializes, the ruling allows a prosecutor to pursue additional charges, even if the same evidence existed originally, he wrote. The Supreme Court also said prosecutors' opinion of a case "may not have crystallized" at the start.

"This sequence of events is both legal and unremarkable," Diamond wrote.

He said Pierce presented no evidence to show vindictiveness nor any evidence even "suggesting a realistic likelihood" of it.

He points out Lee rejected a plea deal more than a year before the new felony was filed. The deal, first offered Dec. 1, 2021, about four months after Lee was first charged, would have allowed Lee to plead guilty to parading, demonstrating or picketing in a Capitol building, a misdemeanor punishable by six months of jail.

Lee had about two months to think about the deal, but rejected it, Diamond wrote. The prosecution told her the deal would never be available again.

At that time, prosecutors "had yet to try a single Jan. 6 defendant," he wrote. Diamond, not the case's original prosecutor, said he took over in February, "reviewed and synthesized the significant volume of photo and video evidence" and sought a new indictment.

Diamond reminded the judge that Pierce tried to have the case dismissed last year, but Jackson rejected the effort.

Diamond's motion to keep the case alive publicly highlights some evidence for the first time, including that Lee:

Was among the first 30 to 40 rioters to enter the Capitol after pushing past police officers blocking protesters from ascending the Capitol steps and breaching the east rotunda door.

Filmed fighting between rioters and officers with her cellphone.

Joined a crowd that pushed past other officers guarding the hallway to the House chamber and filmed rioters breaking a pane of glass on the chamber's door.

"Lee knew exactly where she was. She had nearly reached the House chamber door where members of Congress were meeting to certify the election, and she was trying to stop them," Diamond wrote.

Remained in the Capitol even after police deployed tear gas around the chamber to disperse the crowd. She left at 3:24 p.m., about 48 minutes after entering. When she got outside, she told a fellow protester about the experience, repeatedly using vulgarities for emphasis.

Contact the writer: bkrawczeniuk@timesshamrock.com; 570-348-9147; @BorysBlogTT on Twitter.