Kyle Fitzsimons at the U.S. Capitol on Jan. 6.
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Kyle Fitzsimons at the U.S. Capitol on Jan. 6.

Kyle Fitzsimons at the Capitol on Jan. 6 (images via FBI court filings).

A Maine man whose wild-eyed and bloodied face has become a symbol of the Jan. 6 attack on the U.S. Capitol is apparently rethinking an earlier request to skip the jury and have a judge oversee his case.

Kyle Fitzsimons is accused of a range of violent felonies, including civil disorder, obstruction of an official proceeding, and assaulting police officers with a dangerous or deadly weapon. After attending Donald Trump’s so-called “Stop the Steal” rally on Jan. 6, he made his way over to the Capitol, stopping along the way to change into “butcher whites” and a fur pelt around his neck, prosecutors say.

He reportedly “carried an unstrung bow with him, which was meant to signify his peaceful intent,” prosecutors say.

Fitzsimons is seen on surveillance video at the front of the increasingly riotous crowd facing off against law enforcement at the arched entry at the Lower West Terrace. He appears to violently charge at police multiple times as police officers tried to fend off the rioters.

At some point, Fitzimons was hit in the head with a baton, resulting in a bloody gash. He made his way to an ambulance and was taken to an area hospital and received six stitches, court documents show.

Three of the seven felony charges against Fitzsimons carry a potential 20-year prison sentence. He is also charged with four misdemeanors relating to trespassing on restricted grounds and disorderly conduct.

Fitzsimon’s trial had been set for June 13, although on Friday, Fitzsimon’s attorney Natasha Taylor-Smith requested a continuance to July or August.

“There Are People Who Think I’m a Part of the ‘Deep State,’ If Not the Center.”

On May 20, Fitzimons had filed a motion to waive his right to trial by jury, signaling his intent to instead have his case heard at a bench trial before U.S. District Judge Rudolph Contreras. Court filings indicate that Fitzsimons believes that he can’t get a fair trial in front of a Washington, D.C. jury.

Other Jan. 6 defendants have made similar arguments, and judges overseeing those cases have either expressed skepticism over—or denied—defendants’ motions to change venue, noting that an effective voir dire can root out any potentially biased jurors.

“I know he’s focused on the existence of things like the ‘deep state’ and things of that nature,” Contreras, a Barack Obama appointee, said of Fitzsimons on Friday. “If you look around the internet, there are people who think I’m a part of the ‘deep state,’ if not the center, [and] and I want to know that [Fitzsimons] knows these things.”

“These folks on the internet who have written about their beliefs about me being part of the ‘deep state,’ obviously those things are unfounded,” Contreras said. “I don’t want to be in a situation where if we have a bench trial and things don’t go his way, he says ‘If I knew all these things I wouldn’t have had a trial in front of him.””

Contreras said that he wasn’t discouraging Fitzsimons from having a bench trial before him, only that he wanted to make sure the defendant’s waiver of a jury trial is “knowing and voluntary.”

“Of course, I can provide him with a fair trial,” the judge added.

Taylor-Smith, a federal public defender, told Contreras that she had discussed the pros and cons of a bench trial with the defendant, but that felt the only way he would receive a fair trial was if it was a bench trial.

Contreras then addressed the specific rumors that have cropped up about him.

“I’m not suggesting any of these things I’m about to mention have any bearing on whether I can provide him a fair trial,” he warned, before asking Taylor-Smith: “Does he understand that I am the presiding judge of the Foreign Intelligence Surveillance Court, and I have been on that court for about six years?”

“We have discussed this Court’s decision in other matters and Mr. Fitzsimons has advised me that he wants to move forward with the bench trial,” Taylor-Smith replied.

Contreras then asked if Fitzsimons knew that he had overseen the trial of former National Security Advisor and retired Lt. Gen. Michael Flynn, who had pleaded guilty to lying to the FBI before withdrawing that plea and, ultimately, being pardoned by Trump in November of 2020.

Contreras had recused himself shortly after Flynn entered his plea, and Senior U.S. District Judge Emmet Sullivan, a Bill Clinton appointee, took over.

“That was the first case we discussed,” Taylor-Smith said.

“And related to that recusal, does he understand that I’m friends with the former FBI agent Peter Strzok?” Contreras continued.

“I don’t think he was aware of that,” Taylor-Smith said. “We did not discuss that matter.”

Strzok, Contreras explained, “has been at the center of many conspiracy theories involving President Trump. He and his family have been friends with me and my family for some years, and our kids grew up together. Obviously I don’t think that will have any impact on my ability to provide a fair trial in this case, but it’s something he should be aware of.”

Contreras’ friendship with Strzok was revealed in text messages between the him and FBI lawyer Lisa Page.

“I Don’t Think the Colloquy is Going To Be Necessary.”

“Do you have any doubt that the defendant is making a knowing and voluntary waiver of his right to a jury trial?” Contreras asked Taylor-Smith of Fitzsimmons, nearing the end of his back-and-forth with the lawyer.

“I have no doubt that he has been advised by myself,” Taylor-Smith replied, adding that she had consulted with other lawyers in the federal public defenders office and shared those conversations with Fitzimons as well. “He understands the risks of a waiver trial versus a jury trial and he has advised me on numerous occasions that the only fair trial he can get in the District of Columbia is a bench trial, not a jury trial.”

Fitzsimons, however, wasn’t apparently so sure anymore. As Contreras turned to the defendant for the required colloquy, he asked him if he wanted to take some time to consult with his lawyer.

“I would appreciate that, Your Honor, yes,” Fitzimons said before going into a virtual “breakout room” with Taylor-Smith.

They returned after a few moments with a new plan.

“At this point, I don’t think the colloquy is going to be necessary,” Taylor-Smith told Contreras. “I’ve had an additional conversation with Mr. Fitzsimons. He does have some concerns about a bench trial at this point, and I think we’re going to stay with the jury trial.”

Contreras accepted this, and told the defense lawyer that if Fitzsimons changed his mind after thinking about it, they could take up the matter again at a June 15 status conference.

[Images via FBI court filings.]

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