I have been a criminal defense attorney for more than 30 years, so I want to offer some advice to the people who invaded the U.S. Capitol Wednesday:
Do not post selfies and videos of yourself engaging in serious criminal activity on social media unless you are eager to spend some time in federal prison.
That is because along with depicting disgusting, disgraceful and despicable behavior — those images and videos are incriminating.
While law enforcement’s lack of preparedness and feeble response to the assault on the Capitol is disturbing — especially when compared to the measures taken before, during, and after Black Lives Matter protests — my long years of experience make me believe that specialists from the FBI and Department of Homeland Security are examining every picture and second of video of the riot posted on social media, published in newspapers, and broadcast on TV.
Once the authorities have made positive ID’s — and they will — the people who were smiling as they rampaged through the Rotunda, Statuary Hall and the House and Senate chambers will not be grinning — they will be handcuffed, charged, read their Miranda rights and fitted with a nifty orange jumpsuit.
Derrick Evans, a newly elected Republican member of the West Virginia House of delegates, may well be among the first to be arrested. Evans posted a number of videos on his Facebook page including one in which he turns the camera toward himself and says “We’re going in” as he and other rioters enter a door located on the east front of the building.
He then shouts “Derrick Evans is in the Capitol!”
Thanks for confessing, Derrick. Oh, and you are right about one thing: Thanks to your video, you are likely “going in.” Going into prison that is, because the footage is admissible in court and will be used as compelling and irrefutable evidence by federal prosecutors.
Derrick can take comfort in one thing: he will not be alone. In the coming days, I expect the government to charge hundreds if not thousands of rioters with crimes including trespassing, entering a restricted government building, entering a restricted government building with a weapon and/or causing injury, causing physical damage to government property, assault and assaulting a police officer or law enforcement official.
Some of the rioters could be facing 10 years or more in prison as well as 10s of thousands of dollars in fines.
I also know this from many years representing clients charged criminally in federal court: the chance of mounting a successful defense against a highly motivated U.S. Attorney armed with overwhelming and indisputable evidence is virtually non-existent.
That means a less-than-Draconian plea agreement is the best a rioter can hope to get from a prosecutor who has dedicated his or her life to upholding the Constitution and the rule of law — the two things that were actually attacked when the citadel of American liberty was breached and defiled.
At the end of the day, the shocking images will have a positive impact: they will ensure that those who committed heinous crimes are punished and serve as reminders that our nation is stronger than those who seek to destroy it.
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.