WASHINGTON — A defense attorney conceded Friday that a former Virginia police officer broke the law when he entered the U.S. Capitol during last year's riot, encouraging a federal jury to convict him of misdemeanor offenses.
But the lawyer urged jurors to acquit former Rocky Mount police officer Thomas Robertson of felony charges that he armed himself with a weapon and stormed the Capitol with another off-duty officer to obstruct Congress from certifying President Joe Biden’s 2020 electoral victory.
The jury for Robertson's trial deliberated for more than four hours without reaching a verdict after hearing closing arguments from Justice Department prosecutors and defense attorney Mark Rollins. Jurors are scheduled to return Monday to resume their deliberations.
Robertson's jury trial is the second among hundreds of Capitol riot cases. The first ended last month with jurors convicting a Texas man, Guy Reffitt, of all five counts in his indictment.
Rollins said Robertson is “absolutely guilty” of illegally entering restricted areas of the Capitol and of engaging in disorderly conduct on Jan. 6, 2021. But the defense attorney argued that the evidence doesn't support more serious charges that Robertson intended to stop Congress from certifying the Electoral College vote or that he was armed with a dangerous weapon, a large wooden stick.
“There were no plans to go down there and say, ‘I’m going to stop Congress from doing this vote,'" Rollins said.
Assistant U.S. Attorney Risa Berkower said Robertson went to Washington and joined a “violent vigilante mob" because he believed the election was stolen from then-President Donald Trump. He used the wooden stick to interfere with outnumbered police before he joined the crowd pouring into the Capitol, she said.
“The defendant did all this because he wanted to overturn the election,” Berkower said.
Robertson didn’t testify at his trial. A key witness for prosecutors in his case was Jacob Fracker, who also served on the Rocky Mount police force and viewed Robertson as a mentor and father figure.
Fracker was scheduled to be tried alongside Robertson before he pleaded guilty last month to a conspiracy charge and agreed to cooperate with federal authorities.
Fracker testified on Thursday that he initially believed that he was merely trespassing when he entered the Capitol building. However, he ultimately pleaded guilty to conspiring with Robertson to obstruct the joint session of Congress.
Fracker said he didn’t have a “verbal agreement” with anybody to obstruct the congressional proceedings. He said he believed everybody in the mob “pretty much had the same goal” and didn’t need for it to be “said out loud.”
“It was clear that everyone around them had that same goal,” Berkower said.
Rollins said Robertson didn't engage in any of the violence or destruction carried out by “knuckleheads” and “clowns” who stormed the Capitol.
“Don't judge him by what the other people are doing,” he told jurors.
Robertson and Fracker drove with a neighbor to Washington on the morning of Jan. 6. Robertson brought three gas masks for them to use, according to prosecutors.
After listening to speeches near the Washington Monument, Fracker, Robertson and the neighbor walked toward the Capitol, donned the gas masks and joined the growing mob, prosecutors said. Robertson stopped to help his neighbor, who was having trouble breathing. Fracker broke off and entered the building before Robertson, but they reunited inside the Capitol.
Defense attorney Camille Wagner said Robertson only went into the Capitol because he wanted to retrieve Fracker. Wagner also denied that Robertson wielded the stick as a weapon. She said the U.S. Army veteran was using it as a walking stick because he still has a limp from getting shot in the right thigh while working as a private contractor for the U.S. Defense Department in Afghanistan in 2011.
Robertson was charged with six counts: obstruction of Congress, interfering with officers during a civil disorder, entering a restricted area while carrying a dangerous weapon, disorderly or disruptive conduct in a restricted area, disorderly or disruptive conduct inside the Capitol building and obstruction. The last charge stems from his alleged post-riot destruction of cellphones belonging to him and Fracker.
The town fired Robertson and Fracker after the riot. Prosecutors said Robertson paid Fracker more than $30,000 after they were arrested, but Fracker said he believes Robertson wanted to cover his lost wages and wasn’t trying to “buy” his testimony.
Jurors saw some of Robertson’s vitriolic posts on social media before and after the Capitol riot. In a Facebook post on Nov. 7, 2020, Robertson said “being disenfranchised by fraud is my hard line.”
“I’ve spent most of my adult life fighting a counter insurgency. (I’m) about to become part of one, and a very effective one,” he wrote.
Robertson has been jailed since Cooper ruled in July that he violated the terms of his pretrial release by possessing firearms.
More than 770 people have been charged with federal crimes related to the riot. Over 240 of them have pleaded guilty, mostly to misdemeanors.
Robertson's trial is one of four so far for Capitol riot defendants. Two others had their cases decided by bench trials before the same judge.
U.S. District Judge Trevor McFadden convicted New Mexico elected official Couy Griffin last month of illegally entering restricted Capitol grounds but acquitted him of engaging in disorderly conduct. On Wednesday, McFadden acquitted another New Mexico man, Matthew Martin, of all four charges that he faced.