Judge Refuses to Admit Oath Keeper ‘Death Wish’ List into Seditious Conspiracy Trial

In the most important J6th trial to date, U.S. District Court Judge Mehta refused to admit evidence that Steward Rhodes, leader of the Oath Keepers, kept a “Death List” on his writing pad created just days before the attack on the Capitol. This would seem to be outrageous. But, below, I’ll explain why it’s not and that it’s a very solid ruling despite upsetting DOJ.

Judge Mehta has heard the entire context in which the government wanted to add this evidence and finds it dangerous. By making this ruling, he makes the case a little more difficult for DOJ (a little), but he is solidifying any issue on an appeal, and one of the first things an appellate lawyer looks at coming out of a trial is the admission of highly inflammatory evidence that wasn’t really relevant to the elements at issue in the criminal trial.

If Mehta believed that the death wish was essential to establishing the conspiracy and was part of the plan for January 6th, he would likely admit the evidence because it would be “highly relevant.” But Mehta found that these were just personal notes jotted down by Rhodes on his own. As such, the evidence is somewhat relevant to Rhodes’s state of mind but not really to the conspiracy itself, the underlying charge.

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Low relevance. But on top of that consideration is the fact that the list is highly inflammatory. No matter how many times the defense attorneys say, “stick to evidence as applied to a conspiracy, these were just musings that were never acted on…” it wouldn’t matter. The jury, like most of us, would hear “Death List” and it would stick in our brains as something like, “This guy is a monster,” and though that may be true, it is not relevant to the charges. Low relevance, highly inflammatory is a recipe for reversal on appeal.

So why did DOJ present it knowing it’s an appeal issue? They would argue on appeal that even if you throw out that evidence, the real evidence is so overwhelming that it’s a harmless error. They would get great latitude but not unlimited.

Judge Mehta did what a good judge does, weighed the pros/cons of the evidence, and ruled in favor of the defendant.

My criminal law professor said, on the very first day in L-school, “Remember, when we think about the criminal justice system, we are not asking, ‘What do I want for them?’ No, the question is, ‘What do I want for myself if ever falsely accused or overcharged issue?’ The people that founded this country were criminals. They set up a system to protect the law and themselves.”

It is a good point to consider and explains Mehta’s ruling.

Jason Miciak

@JasonMiciak believes a day without learning is a day not lived. He is a political writer, features writer, author, and attorney. He is a Canadian-born dual citizen who spent his teen and college years in the Pacific Northwest and has since lived in seven states. He now enjoys life as a single dad of a young girl, writing from the beaches of the Gulf Coast. He loves crafting his flower pots, cooking, and currently studies philosophy of science, religion, and non-math principles behind quantum mechanics and cosmology. Please feel free to contact with any concerns.