The “Diligent” Proud Boys Jury: “Can we also get a stapler, please?”

Yesterday, there were several interesting notes in the Proud Boys jury, including one — identifying a seeming discrepancy in their instructions — which led Judge Tim Kelly to note how diligent they were.

My favorite note, as I wrote at the time, asked for a stapler (I used to take off a point when students turned in papers using paperclips or dogeared pages rather than a staple).

I’d like to explain a different note, which may suggest where this jury is heading (and heading, it seems, in the reasonably near future). It asks:

  1. For counts 1 + 4, the conspiracy charges that have more than one goal listed, can one agreed upon objective of the conspiracy simultaneously satisfy both goals?
  2. We did not receive instructions on what to do if the jury does not reach unanimity on a charge. How should we proceed in this scenario?

The two counts in question were the seditious conspiracy charge, which the jury instructions describe this way:

Count One of the indictment charges that from in and around December 19, 2020, through in and around January 2021, the defendants participated in a conspiracy to do at least one of two things: (1) to oppose by force the authority of the Government of the United States, or (2) to prevent, hinder, or delay the execution of any law of the United States by force.

And the instructions describe the fourth, interfering with a government agent, this way:

Count Four of the indictment charges that from in and around December 19, 2020, through in and around January 2021, the defendants participated in a conspiracy to prevent Members of Congress and law enforcement officers from discharging their duties, which is a violation of the law.


First, that the defendant agreed with at least one other person to, by force, intimidation, or threat, (a) prevent a Member of Congress or a federal law enforcement officer from discharging a duty, or (b) induce a Member of Congress or federal law enforcement officer to leave the place where that person’s duties are required to be performed.

One scenario where the jury might pose this question is if they believed some or all of the Proud Boys had agreed to and succeeded in obstructing the certification of the vote (the 1512 conspiracy), which is pretty close to Count One(2) and Count Four(b), but didn’t believe some or all had taken up force against the government (which was a stretch in this case since the violence exercised here was via “tools” who attacked the cops).

The inclusion of the question about not reaching unanimity suggests the possibility of a hung count on these or another charge. That happened, for example, in the lesser Oath Keepers case, but the hung count could just pertain to one of the defendants (perhaps Zach Rehl, who said the least inflammatory things in advance of the attack, or Dominic Pezzola, who only joined the conspiracy at a late moment, or Henry Tarrio, who wasn’t present).

One way or another they were down to the nitty gritty questions when they sent this note at 10:47AM yesterday. The response could make or break the sedition charge, too. So the lawyers discussed it for hours.

While they were waiting for their answer to that, they asked the “diligent” question, what to do about a charge invoking Charles Donohoe’s role in throwing a water bottle, given that a different instruction told them not to make any inferences about why people weren’t charged (Donohoe pled guilty last summer). At 3:19PM on Monday, they had asked for the exhibit numbers pertaining to that charge, so they seem to be a bit perplexed by Count Eight, which charges aid and abet liability in an assault for throwing a water bottle.

Per Roger Parloff, it took the lawyers and Judge Kelly more than three hours before they sent back a response to the 10:47 AM note. So they likely got significantly further in their deliberations before they got those two answers.

Here are the jury notes and responses:

  1. Please provide exhibit numbers for Rehl’s phone crossing the barricade and Biggs suggesting they pull their masks up. Response
  2. Please provide the following exhibits: police shield, megaphone, org chart. Response
  3. Please provide a stapler (and exhibit 490A). Response
  4. Upcoming appointments (in response to a question from the Courtroom Deputy)
  5. Please provide exhibit numbers for the Donohoe water bottle throwing examples. Response
  6. Clarification on multi-purpose conspiracies and non-unanimity on a charge. Response
  7. Clarification on persons not present. Response

Update: Now the “diligent” jury is asking the Court to fix the typo in their verdict form.

79 replies
  1. harpie says:

    This is a great explainer, Marcy! Thanks!
    And I really appreciate the list of, and links to the jury questions / responses.

    • Ginevra diBenci says:

      Same here! With small caveat: “Response” to #1 was actually the handwritten request from the jury, starting with “Hi!” This in itself gave me hope for a constructive proceeding, but I couldn’t find the response.

      Anyone wondering why we haven’t seen verdicts yet would be well advised to read the response to request #7. This case, with all these defendants, presents many challenges.

  2. Peterr says:

    Thanks for the link to the jury instructions, which confirms what I believed last week. A 47 page instructions document is a sign that a diligent jury is going to need time to sort through each of the charges as applied to each of the defendants.

    “Diligent” strikes me as the right word to describe the jury.

    • bmaz says:

      Or it is a sign that the instruction park is too voluminous and complicated, especially as to seditious conspiracy. Not a soul here has any idea whatsoever what the status of their deliberations or their diligence, and the court making cooing sounds at them means nothing. That is standard because the court wants verdicts and not hung counts necessitating protracted deliberations and the necessity of an Allen charge.

      • Peterr says:

        Which is it, bmaz – (a) too voluminous and complicated, or (b) standard?

        Or are you saying it standard for the court to make the work of the jury overly burdensome?

        • Savage Librarian says:

          I hear you, bmaz! I’m having flashbacks to my civil case where the jury couldn’t even agree on a preponderance of the evidence. The case got so tangled up with junk it was disgusting. Thank goodness there were some holdouts who maintained their integrity, to my benefit. That is, if you can call a hung jury a benefit.

          So, if some things go south here, do you expect there to be some kind of do-over? Are appeals inevitable, regardless of outcomes?

        • loveyourstuff says:

          A good communicator does not set his standard as “I meant what I wrote.” “Meaning what I wrote” is a statement of sincerity, not clarity. Since Peterr is no idiot, you should ask yourself, “Did what I wrote land?” Your inability or unwillingness to self-reflect does not serve you, nor does it serve anyone else, which means you’re shouting into the void, which is surely not what you mean to do.

        • bmaz says:

          You are new here, so let me be clear, I don’t care what “you” think a “good communicator does”. I have known Peter since the time this blog was formed 16 years ago. He is a friend, and my answer was clear. Stay out of our business, do not tone police us and you will be fine. But thanks for the polite advice.

        • earlofhuntingdon says:

          LOL. Peter’s question addressed two separate issues: the jury instructions and the felicity with which the court is responding to questions from the jury. So bmaz’s response was just fine: he meant what he wrote. You need to get out more; so does giorgino.

        • loveyourstuff says:

          The lack of clarity I was referring to was his reply, “That is standard…” What is standard? Bmaz was replying to two categories of ambiguity and yet wrote “that.” Can we read his mind? Is the context clear? Maybe, because “that” follows his remark about the judge cooing. But clarity, when asked for, never hurt anyone–except the speaker who is too arrogant to allow that he was not precise.

        • earlofhuntingdon says:

          It was perfectly clear. The instruction park was too complicated. The court making cooing sounds was standard.

        • loveyourstuff says:


          Your reply should have come from bmaz to Peterr. But you prove my point that the confusion from bmaz’s imprecision could have easily been remedied. So easily. Instead, all this fuss.

        • bmaz says:

          What a complete load of garbage. As I said, I have known Peter forever. My position has been made clear from the start. Peter knows what I have to say and has from the start. Everybody here does. Except for you and some other less than ten bit commenters. There was no confusion whatsoever. YOU are the interloper creating “the fuss”.

          I have written posts, comments and off blog explanations, don’t you tell me what I need to remedy, much less as to Peter, where I was responsive and clear. If this is your mission, it is likely over.

        • earlofhuntingdon says:

          Merde. Peterr and bmaz and most readers here didn’t need it. You did. Go figure.

        • bmaz says:

          Seriously, you need to stop. I do this for free, have for 16-17 years, still have a day job and have recently had a major illness. I do not owe you squat. You know who is being “arrogant” here? YOU. We owe you nothing now six commenter relentless pain in the ass. The more you demand it, the closer you become to being gone. You do not get to pull that shit here. Troll season is over.

      • Tech Support says:

        Sending an end-user 47 pages of instructions is always a bad idea. If all that information is truly essential for them to complete their work successfully, then you actually need a full blown training session.

        I’m guessing that court practices today do not allow for jury instructions to be upgraded to “jury in-service training seminar.” I could imagine a lack of consensus around the instructions leading to a hung jury rather than the evidence or the arguments.

        Writing documentation for the layperson is an art of it’s own. It certainly could be a crisp and elegant 47 pages but I admit I’m skeptical.

        • bmaz says:

          They are pretty standard up to page 21. And it takes little time for the jury to consume and understand the first 20 pages. The issue is after that. And why I always wanted the counts more constrained and straightforward.

        • pdaly says:

          I was wondering the same–whether the jurors get any sense, before the jury instructions are handed to them after closing arguments, how they are supposed to be evaluating the charges and the evidence brought by the prosecution?

          In the sports arena, a panel of judges (gymnastics, diving, ice skating for example) has its checklist of things to watch for BEFORE the athletes do their thing in front of them. Why couldn’t the jury have a similar checklist ahead of time to help organize the information coming at them in a trial?

          Even with standardized tests that include reading passages, the strategy is often taught to test takers to read first the question at the end of the passage in order to know what to look for when reading the passage.

          Do jurors know what to look for while the live trial is happening?

        • bmaz says:

          The introductory pages give a decent roadmap, and a standard language one often used. There are preliminary instructions at the start, but they are pretty bare bone.

        • pdaly says:

          It just seems strange to me that the judge and the lawyers know their roles well (and they know the jury’s role better than the jury does at the beginning of every trial), while the jury is expected to sort just figure it out on the fly.
          Does giving the jury instructions at the beginning of the trial make a trial less fair?

        • bmaz says:

          They are meant to be introductory. But suppose preliminary instructions included something like seditious conspiracy, and the evidence adduced never warranted giving that charge to the jury? What then? Initials are intended to be a vague framework.

  3. Norskeflamthrower says:

    Thank you for this post Marcy. The only thing this set of jury questions means is, as you say, “they are down to the nitty gritty” on the charges whether voluminous and complicated or not.

  4. NickinNJ says:

    Currently listening to Marcy doing a fantastic job on the Brian Lehrer Show! “A question of where the 1st Amendment ends and where sedition begins…” is a very good way of phrasing it. Please keep up the great work!

  5. Former AFPD says:

    I’m not surprised it took hours for the court to craft a reply to a jury question here. There are many lawyers and multiple defendants who need to be heard on this issue. An instruction during deliberations which misstates the facts or law is fodder for appellate reversal, so the trial judge will be especially careful at this stage of the proceedings. The inquiry about what would happen if the jury was not unanimous seemed pretty standard to me for a case of this length and factual complexity. As a defense lawyer, I would be urging an instruction allowing the jury to remain undecided, and thus, potentially hung. A prosecutor typically argues the opposite – an instruction to keep deliberating. The trial judge seems to have touched on both in his responses. Waiting for a verdict is anxiety producing.

  6. David F. Snyder says:

    Thanks, Marcie. None of this seems surprising to me, but it’s informative to get these hints on the decision issues. I’ll put my neck out and still guess that it’s Rehl who’s the sticking point on the conspiracy charge. But I wouldn’t put money on that guess.

    • emptywheel says:

      That’s what I thought would be the case before trial, but per Brandi’s description he really hurt himself on the stand. Ryan Reilly thinks the hold-up would be Tarrio.

      • bmaz says:

        Yeah, if had to guess, think I would agree with Ryan. Though the seditious conspiracy count may be a larger problem than just Tarrio.

        • David F. Snyder says:

          I revisited Brandi’s (excellent) report and get that view now. I agree, bmaz, it could go broader than Tarrio, though. It’ll be interesting to see how this plays out, without a doubt!

  7. Attygmgm says:

    Excellent post. Very much appreciated. Assuming the lawyers have receded to their offices (versus waiting around the courthouse) and given the number of lawyers involved, it makes sense that it takes a while for the court to consult them all as to a response to a given question. And surely some argue about any proposed response. Except maybe about the request for a stapler.

  8. loveyourstuff says:

    Re: #3: echo from last week: bmaz, “It is not because they determined there was a missing page and wanted a stapler.”

    • John Paul Jones says:

      In composition courses, I have point blank refused to accept papers, especially late in the semester when they know what the rules are, if they are not properly formatted. I tell them they have 24 hours to hand in a properly formatted reprint and that after that period, late penalties begin to accumulate. It’s a question, partly, of respect for the process, the conventions which you are supposed to follow. Is it nitpicky? You bet. That’s why we call them conventions.

    • hebmskebm says:

      If she clearly stated when the semester began that she expected all papers handed in to be stapled, I see no problem with it.

      • emptywheel says:

        I did. I literally graded papers on a point system.

        I did so bc it was easier and because it made it easier to demonstrate that I cared more about the quality of an argument than proofreading, but also bc it was far closer to the reality when you get into the work force. And in the work force, something like a staple could cost you more than a point.

        • Savage Librarian says:

          One of my library science profs told our grad school class that she once had an employer who demanded that all bills of any denomination be facing in the same direction (and face up) when handed to him. Someone in class laughed out loud at the comment (okay, it might have been me…) She smiled and then assured us she was serious. She said it would be important in our work lives to pay attention to and respect details that we may not otherwise realize had value. It proved to be quite practical, too, and applicable by analogy to many other circumstances.

        • Troutwaxer says:

          That was a requirement of old-style bill-counters. To them an upside-down bill was not proper money.

        • P J Evans says:

          I ran into cases at work where it was essential to read the form before filling it out – on some of them the visible difference was very small, with very large effects. (One was two columns, originally “as found”/”as left”, but later “Main-PL and “PL-meter”. I got one where it was the former, and the person filled it out as the latter. I could have figured it out, but it would have taken a while.)

        • theartistvvv says:

          I bartended through school after I reached 18 (home-rule state, at the time – the Federal Highway Act or similar was used to eliminate that) – so, 7 years – and every bar I ever worked in required the bills be “faced”.

          Of course, that was mostly in the 80’s …

        • Ginevra diBenci says:

          As long as you announce the policy on your syllabus, you have established a contract with anyone who stays in the class. At least that’s how they treated it at the state university where I taught.

        • David F. Snyder says:

          Back in the day, one of my fellow students asked our Russian Lit professor (Prof. Fiene, who used the points system) why his exam essay got fewer points than my somewhat shorter exam essay — “because he actually said something!” was the prof’s reply.

        • Purple Martin says:

          I had a college professor who not only said to use staples, but demonstrated acceptable staple positioning (45 degree angle such that extending the line of the staple both ways to the page edges would form an equilateral triangle of the top left corner).

          Reasoning was that turned pages creased against the staple would remain straight and square to the remaining pages, and easier to handle stacks of papers opened to an interior page (which he did and I didn’t). Easy enough and didn’t bother me.

    • earlofhuntingdon says:

      Ever try to find and repaginate loose sheets that have escaped their paperclip? In a pile of similar papers or reports. One point seems reasonable, generous even.

      • Rugger_9 says:

        I billed for secretarial services, duly and fully announced. I also brought a full stapler to class when things were due.

      • giorgino says:

        In my day it was elastics. The 1st rule of programming “In the day” was always carry them around, punch cards all over the floor make for a long re-typing night :-(

        • P J Evans says:

          (a) sequence numbers in columns 73-80
          (b) stripe on the top edge – diagonal is very useful for this

        • giorgino says:

          You are funny, did you ever try and use your suggestions on large/long programs?

        • RipNoLonger says:

          My first paying IT job in 1970 involved taking 40-50 boxes of punched cards, running them through multiple collation sequences before loading onto tape (don’t ask.) They weren’t sequence#d but had to be in sequence. It was mind-numbing and prone to grabbing the wrong bunch of cards. A whole evening wasted on any mistake.

        • Eschscholzia says:

          My reply to this thread on punch cards is “All of the Above”.

          44 years later I still have occasional nightmares from a labcart with over 100K of cards (~100 boxes stacked up 5 or 6 high) dumping because of the ^&!$@%#^$# decorative 4-6″ cobblestones in the main paths at UCSD. As an undergrad ecology major I worked for a new professor setting up his lab, and had to take ~220K of cards across campus to the only working card reader. ~20K Fortran + ~200K uninterpreted (no printing on the top) data split across maybe 100 files (7-8-9 multipunch for end of file), no seq numbers no diagonal deck stripes. CDC cards, Burroughs card reader so it choked on every &^$%@# 7-8-9 as if they were lace-punched, as well as jamming on the damp thicker cards from the fog, then to VAX & translate the Fortran from CDC to VMS dialect using sed. Whatever subset of cards was on the cart the trip it dumped, in involved the only copy of years of irreplaceable genetic data. Movie-quality slow motion on the cart dump that took half a lifetime, but the heavy elastics on the stiff card boxes held enough that burst boxes still had cards overlapping & in order. Some nightmares end differently: attempting a radix sort on the card sorter with uninterpreted cards, or worse.

          Lesson learned for my own work: always multiple copies, sequence numbers and diagonal stripes on the deck (multiple strips & colors for different 1000 card decks), tape the box shut; multiple 9 track tapes that get fast forwarded & rewound at least once a year; even now a large drawer full of 5-8TB backup drives. Proprietary file formats that went extinct (a Jared Diamond story involving 8″ floppies and his birds on islands data), poor documentation, no metadata, but by gawd, I have a copy of every file even if it is completely unusable.

          Add me to the count of stapled-only teachers, plus name on every page. When I switched to electronic submission in the early 2000s, I enforced rules on file naming: not “My Homework 1.doc”, but “LastNameFirstname_HW1.doc”. Name attached files for the recipient not the sender, a life lesson for everyone to learn.

          [Also: linux/sendmail/pine on an obsolete/surplus pentium box with a disposable email address for each course, so I never got infected nor spammed after the semester from students who used yahoo email. Computer problems & solutions were so much simpler then.]

        • giorgino says:

          AI for sorting is a good idea; for shooting, not so much. AI is like guns: guns don’t kill people. people do. Same with AI. It’s a pretty good regurgitation machine. But if it’s evil you want to bring-up, it will do it well.

        • RipNoLonger says:

          AI is scanning them, updating the models, and reprinting them. If staples are required, the printer handles that.

  9. FiredrakeLucky says:

    Hello, I hope this isn’t too off topic for this thread. I want to get the question in before we are all distracted by the outcome.
    My mind links Tarrio to Roger Stone. So I think Tarrio got arrested on purpose precisely so as to be absent from the insurrection; he brought the bullets just in case setting foot in D.C. was not enough. Against this idea is that he didn’t bring a clean phone. My question is: Do you know how this suspicion was dealt with at the trial? Is it that since there was no evidence, it was not floated as a theory, and the jury hashes it out themselves?

    (oops: first post and I misspelled my “name” FiredrakeLucky) (You will always need to forgive my spelling, please.)

    [FYI — username spelling fixed. Welcome to emptywheel. /~Rayne]

    • Ginevra diBenci says:

      FireDrakeLucky, I’m curious about the Roger Stone part of your theory. Are you imputing Tarrio’s incarcerate-myself-safely-away-from-the-riot plan to Stone? Or suggesting that such a move by Tarrio somehow insulates Stone legally?

      Your comment is not OT given the pendency of the verdicts on Tarrio’s trial. It sounds like you’re suggesting the Tarrio outcome(s) will matter more than the rest because of his proximity to Stone. Am I reading too much into what you wrote?

        • FiredrakeLucky says:

          What a relief!! Guilty, guilty, guilty, guilty, guilty. Whew!

          Thanks for asking questions.

          One piece of background is that I believe emptywheel’s ongoing analysis about how building the case against the highest leaders requires successful prosecutions against the militias. In particular, I always remember the ‘Friends of Stone’ chat group diagrammed in one of the Oathkeeper trials; it is astonishing that the next step off the top of that chart is the White House!!

          The other background piece is that Roger Stone has a very long history of escaping accountability for activities that both accrue power to Republicans and degrade democracy, which is the whole point of the insurrection and why Stone is constantly in the back of my mind during this trial. My worry is that Stone has brought up Tarrio in such a way that he too manages to escape accountability for rat-fucking. I’m not ready to cast this concern in past tense just yet.

          January 6th: Tarrio gets arrested the day before. Stone makes a show of leaving DC early, before anything happens. It is surely not an accident that they are both absent from the crime scene. But typing these points leads me to answer my own question: evidence of this, if such there be, is not relevant to the specific details of the charges. Their trying to evade accountability is besides the point when the charges target that for which they are accountable.

  10. klynn says:

    It could just be on my side of things, but I am receiving a, “This page is down,” for EW on Twitter.

    • Troutwaxer says:

      At least four member of the PBs found guilty of seditious conspiracy. Bmaz, I’ll be really interested in reading your comprehensive post-game analysis.

  11. bmaz says:

    Via Cheney: “KELLY will take the partial verdict, however, and tell the jury it may continue deliberating on the remaining counts. So it should be coming momentarily.”

    This is interesting. Surprised Kelly did not issue an Allen charge as to counts hanging before taking partial verdict. Will also be surprised if the jury voluntarily wants to go back to deliberating the counts they hung up on. Interesting!

    • bmaz says:

      I’ll be darned, appears Pezzola was the hang up, not Tario. Also, too, Glen Kirschner is a moron. Jeebus, what a tool.

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