General

‘He was trying not to die too,’ defense attorney says of Mainer charged with violent acts on Jan. 6

Aug. 20—Before defense attorney Natasha Taylor-Smith met her client Kyle Fitzsimons, she had seen his bloody and grimacing face, she told a federal judge Friday.

The grim image of the Maine man facing 11 charges for his role in the storming of the U.S. Capitol on Jan. 6 was on television specials, news reports and social media. It was also in the Washington courtroom for Fitzsimons’ trial, Taylor-Smith said, as one of the first and last images federal prosecutors showed U.S. District Judge Rudolph Contreras.

On Fitzsimons’ fourth and final day of trial, Taylor-Smith — a federal public defender assigned to Fitzsimons — asked Contreras to look beyond Fitzsimons as the “poster child” for the Jan. 6 riot and to consider his individual actions and how they jibe with the 11 charges against him — charges that Taylor-Smith said the state failed to prove through witness statements, photographs and video.

“The government has simply not met its burden beyond a reasonable doubt,” Taylor-Smith told the courtroom Friday. “This cannot be based on what a person feels or thinks. It must be based on actual evidence.”

Contreras will decide the verdict in the trial because Fitzsimons waived his right to a jury trial. He was the first of five people in Maine to be charged for crimes related to Jan. 6 and the one who faces the most serious charges.

Fitzsimons is charged with two counts of inflicting bodily injury on officers and one count of using a dangerous or deadly weapon on an officer.

Over the past three days, Contreras has heard extensive, often harrowing testimony from the three officers Fitzsimons is charged with assaulting: Sgt. Aquilino Gonell of the U.S. Capitol Police, Detective Phuson Nguyen and Officer Sarah Beaver of Washington’s Metropolitan Police Department. The judge also has heard from federal investigators who placed Fitzsimons at the Capitol on Jan. 6, congressional staffers who described threatening voicemails they received from him, and a woman in his community in Maine who described Fitzsimons as “passive aggressive” and outspoken in local government meetings.

Gonell, who said Fitzsimons pulled on the shoulder straps of his body shield so hard that he later needed surgery on his left shoulder, told the courtroom that he had been afraid for his life. Nguyen said he remembered thinking he could die in the riot after Fitzsimons pulled off his gas mask while another demonstrator aimed what appeared to be bear spray at his face. After he was sprayed, Nguyen testified, Fitzsimons released the mask, which snapped back into place, trapping Nguyen’s sprayed, burning face behind it as he choked.

WHO’S A HERO?

Both Nguyen and Gonell immigrated to the United States as adolescents, from Vietnam and the Dominican Republic, respectively. Nguyen has spent nearly nine years with the Metropolitan Police Department, which he joined after considering a career with the U.S. Armed Forces. Gonell is a U.S. Army veteran who fought in Iraq.

“They are heroes,” prosecutor Michael Gordon for the U.S. Department of Justice said of the three officers Friday, during the prosecution’s closing arguments. “The defendant is the man who attacked them.”

Taylor-Smith said Friday in her closing arguments that these are the very details that Contreras would be advising a jury not to dwell on — if there was a jury.

“This case is not about who is and who isn’t a hero,” Taylor-Smith said. “I know that’s what we want to make it about … (but) this is about the actions of one man on one day. It’s about whether or not the individual who sits in that chair over there is guilty of the Jan. 6 indictments.”

Prosecutors presented Contreras with hours of surveillance video and body camera images. Gordon said Friday that these pictures support testimony from officers that Fitzsimons helped suffocate Nguyen with bear spray, attempted to hurt Beaver by throwing a bow at her, and wrenched on and injured Gonell’s shoulder.

Taylor-Smith spent much of Friday arguing that the images cast more doubt than certainty.

Gordon and co-counsel Douglas Brasher say Fitzsimons launched an unstrung bow, which he brought to Washington, at Beaver’s helmeted head before his interactions with Nguyen and Gonell.

DEFENSE SEEKS TO SOW DOUBT

Taylor-Smith said Friday that there’s no video footage showing the complete sequence of a bow flying straight from Fitzsimons’ hands to Beaver’s head. She asked Contreras to pay attention to a female demonstrator in a red sweater seen in one video, standing near Fitzsimons. Taylor-Smith said the woman could be heard calling for help from other demonstrators while struggling against police. Fitzsimons could have thrown the bow to help her or the bow could have hit a nearby wall and “deflected” toward Beaver’s head, she argued.

There were also no clear-cut images of Fitzsimons pulling at Nguyen’s mask while someone else sprayed him, Taylor-Smith told the court. On Friday, she played the judge a slow-motion video of another demonstrator, wearing a camouflage hat, who she said pulled Nguyen’s mask away a minute before he was sprayed in the face.

By the time prosecutors say Fitzsimons assaulted Gonell, he had been out in the melee for more than 3 1/2 hours and was clearly struggling to stand, breathe and see, Taylor-Smith argued. A law enforcement officer and another demonstrator can both be seen on video spraying something at Fitzsimons before then, she said. And in all video footage of Fitzsimons near Gonell, Taylor-Smith told the courtroom, Fitzsimons can be seen on the ground, unable to stand.

Gonell testified that when Fitzsimons pulled at his body shield and shoulder, it felt like Fitzsimons was trying to pull him further into the crowd of demonstrators.

“When Sgt. Gonell testified … he didn’t take into consideration that at the time Mr. Fitzsimons was making contact with him, he was down on his knees and there were several protesters on top of him,” Taylor-Smith said. “He was trying not to die, too.”

It is unclear when Contreras will issue a decision in Fitzsimons’ case. He indicated Friday after closing arguments that he will be in touch with Taylor-Smith and prosecutors around Labor Day to schedule another meeting.

After court Friday, Taylor-Smith filed two motions of acquittal, to dismiss charges against Fitzsimons that he interfered with officers while they were conducting their official duties and attempted to obstruct a legal proceeding — by being in an 0ff-limits part of the Capitol on the day of the certification of the presidential vote.

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