I was once called on to defend a person who got drunk at his 40th birthday party and then went out and rear ended a squad car. That case came to mind while thinking about the problems facing the defense attorneys in the Capitol riot cases.
The first line of defense for some is to argue is that not all those who entered the Capitol engaged in the same level of conduct. While that may be true, all that means is that you a guilty of a lesser offense. So what then?
Contrition and a clean record helps. But before sentencing, the judge will still ask “why did you do it?” The answer usually contains some variation of the word stupidity.
Attorney Al Watkins who represents Jacob Chansley, also known as the “Qanon Shaman”, has already outlined one part of his stupidity defense: "He regrets very very much having not just been duped by the President, but by being in a position where he allowed that duping to put him in a position to make decisions he should not have made."
Essentially, Chansley is saying that he so blindly followed the President that he was no longer able to view the President’s past actions and invocations critically. I’m not sure how much that will help his case since the stupidity defense provides no assurance that Chansley will not be similarly duped in the future.
It will be intriguing to see if other defendants assume the same posture. If they do, the next question will be whether they learned anything from this experience. [Written on January 23, 2021]
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