Judge in Trump’s Jan. 6 case showed soft side in SC-related Capitol riot cases

The judge in former President Donald Trump’s capitol riot trial has been portrayed as a hard-liner in her sentences to Jan. 6 defendants.

But she has shown mercy to three Capitol riot defendants with South Carolina ties.

In 2022 and this year, U.S. Judge Tanya Chutkan gave sentences to South Carolinians Elias Irizarry and Elliot Bishai that were less than what prosecutors recommended. Chutkan also gave Irizarry’s and Bishai’s co-defendant, Grayson Sherrill, a North Carolina man who was with them on Jan. 6, a far lighter sentence than prosecutors had urged.

Chutkan’s merciful side contrasts with recent portrayals in stories and headlines in national newspapers describing her Jan. 6 sentences as consistently tough:

▪ New York Times. “Judge in Trump Jan. 6 Trial is Known for Tough Capitol Riot Sentences.”

▪ Wall Street Journal. “Judge Assigned to Trump Federal Case Has Been Tough on Jan. 6 Rioters.”

▪ Washington Post. “Judge Tanya Chutkan is the toughest Jan. 6 sentencer. Next on her docket: Trump.”

▪ Associated Press. “The judge assigned to Trump’s Jan. 6 case is a tough punisher of Capitol rioters.”

The Washington Post story, for example, noted that of 31 cases Chutkan has handled, she sentenced every defendant to prison or jail, exceeding prosecutors’ recommendations nine times and granting them 14 times.

None of the stories mentioned Chutkan’s lenient sentences in the two South Carolina cases or in the case involving their North Carolina co-defendant, all of whom traveled to Washington on Jan. 5, 2021, a day before the Capitol attack.

Joanne Slaight, a Washington, D.C., court-appointed attorney who represented Sherrill, said she had been surprised at the way Chutkan was portrayed in the media.

“She (Chutkan) doesn’t just sentence mechanically. She really looks at people and looks at individuals,” Slaight said. In Sherrill’s case, Chutkan “defied the stereotypes” and evaluated the case on its unique merits and gave him a much lower sentence than prosecutors wanted, Slaight said.

Chutkan’s statements to defendants in these cases also show that she is concerned with defendants’ actions, not their beliefs, and also that she regards the events of Jan. 6 as an extreme threat to democracy.

Here are those three cases:

▪ Elias Irizarry, of York County, was 19 years old and a Citadel freshman at the time of the Capitol breach. Prosecutors had recommended a 45-day sentence after he pleaded guilty to one count of misdemeanor entering and remaining in a restricted area. Chutkan gave him a 14-day sentence.

According to evidence in the case, Irizarry attended President Trump’s Jan. 6 “Stop the Steal” rally and went to the Capitol, where he picked up a metal pole and entered the building through a broken window. He watched as other rioters beat police, heard flash-bangs, joined in chants and posed for photos while sitting on a Capitol statue.

Arguing for a probation sentence, Irizarry’s lawyer, federal public defender Eugene Ohm, told Chutkan in a pre-sentence memo that his client had just turned 19 when he went to the riot, was not an “election denier” and was truly remorseful. Ohm submitted numerous letters from high school teachers, college professors and others testifying to Irizarry’s character, history of community service, fine academic record and leadership traits.

After sentencing Irizarry, and learning about his life and observing him in court, Chutkan wrote a letter to The Citadel vouching for his good character, said Irizarry’s lawyer, public defender Eugene Ohm, last week.

A Citadel spokesman said last week that he could not comment on Irizarry’s current status because school has not yet started for the fall semester.

▪ Elliot Bishai, of York County, 19 at the time of the riot, pleaded guilty to entering and remaining in a restricted building. Prosecutors wanted 30 days incarceration; Chutkan gave him 14 days.

Evidence in Bishai’s case was roughly the same as in Irizarry’s, except Bishai was more active, encouraging other rioters, shouting things like “Civil War Two!” and “Go, come on, you got it!”

Bishai had been accepted to attend an elite U.S. Army program for training as a helicopter pilot. But his arrest and conviction in the Jan. 6 riot disqualified him from that, according to Bishai’s attorney, Don Brown.

Like Irizarry, Bishai submitted numerous letters testifying to his good character. After his arrest, Bishai began working with a group that fights wilderness forest fires, and in recognition of that “dangerous” job, Chutkan said she was not giving him any required community service hours.

▪ Grayson Sherill, of Cherryville, 21 at the time of the riot, pleaded guilty to assaulting, resisting or impeding law enforcement. Prosecutors had wanted three years and five months. Chutkan gave him seven months.

During the riot, Sherill — who had gone with Bishai and Irizarry to the Capitol — violently struck an officer with a pole, breached the Capitol when “chaos was at an all-time high,” roamed the building for 34 minutes, banged on a door with his pole, joined a mob of rioters that overtook a police line in the Crypt, chanted “NANCY! NANCY!” as he approached House Speaker Nancy Pelosi’s office, climbed on statues, and watched and took videos as rioters fought with officers, according to a prosecutor’s statement of the case

In a pre-sentence memo, Sherrill’s lawyer, Joanne Slaight, told the judge that he was sincerely remorseful and had no extremist tendencies. The lawyer asked for a sentence of home detention or halfway house.

Common factors in Chutkan’s lenient sentences to Irizarry, Bishai and Sherrill are the defendants’ young ages, their lack of any criminal records and their exemplary records as citizens before and after the riots, according to public records in their cases.

Irizarry and Bishai had both worked hundreds of hours in community service before the Capitol riot. Afterwards, Irizarry continued at the Citadel until December, after he pleaded guilty and the Citadel suspended him. At the Citadel, he racked up top grades and was known for his good conduct.

Sherrill’s attorney submitted 16 letters from people in his community attesting to “his generosity and thoughtfulness.... Their support confirms that his actions on the Capitol grounds were totally out of character, and will not be repeated,” Slaight wrote, noting the letters were from former educators, family and community members.

‘Young people do stupid things’

Chutkan was randomly assigned to Trump’s case.

Irizarry, Bishai and Sherrill were the youngest defendants to come before her, she has said.

“You’re young, and young people do stupid things,” Chutkan told Bishai before giving him 14 days incarceration, according to a court transcript. “I have a 23-year-old and a 25-year-old. You know, it’s almost — you are almost programmed to do dumb things at this age. I have taken that into consideration.”

Despite her light sentences in those cases, Chutkan’s record shows she takes the events of Jan. 6 very seriously.

In a May 2022 hearing on Bishai and Irizarry’s case, Chutkan told Bishai that on Jan. 6, 2021, he was part of a “mob (that) almost caused the halt of the transfer of power in this country in what’s tantamount to an attempt to overthrow this government.”

Chutkan also made it clear, when told by a prosecutor that Bishai had anti-semitic and racist images on his cellphone, that she was concerned about actions, not words.

“I have said and I will continue to say and I will say today, I am not punishing anyone for their political beliefs. Every defendant before me has a right to believe whatever they want. That is of no moment,” Chutkan told prosecutor Grace Albinson on July 29, 2022, at Bishai’s sentencing hearing, according to a court transcript.

Later in that hearing, Chutkan said, “People are entitled to their political beliefs no matter how offensive they may be other to people. His political beliefs do not count one bit with me. In a previous life (as a public defender), I worked very hard to defend people’s rights to protest and to believe what they want to believe. I’m never going to punish him for what be believes. I am punishing him for what he did.”

But, Chutkan has also said the threat to democracy posed by the Jan. 6 mob that Irizarry, Bishai and Sherrill were part of and events of that day could not have been more serious.

In the 45-page multi-count indictment issued Aug. 1, Trump is charged with using the riled up mob to “go to the Capitol as a means to obstruct the certification (of Biden as president) and pressure the Vice President (Pence) to fraudulently obstruct the certification.”

Chutkan, 61, born in Jamaica, was appointed to the federal bench in 2014 by then-President Barack Obama. She was confirmed by the Senate by a 95-0 vote, according to news accounts. She has worked for a private law firm and spent 11 years as a federal public defender representing low-income criminal defendants in the District of Columbia.

Biggest trial in U.S. history

Chutkan will be presiding over what is arguably the most significant trial in the nation’s history, and her every action will be scrutinized.

The indictment charges Trump, 77, with taking part in four different conspiracies to overturn the November 2020 presidential vote, which was won by President Biden.

Trump is already openly critical of Chutkan. “There is no way I can get a fair trial with the judge ‘assigned’ to the ridiculous freedom of speech/fair elections case,” Trump wrote in all caps in a Truth Social post Sunday. “Everybody knows this, and so does she!”

Trump also faces other criminal charges.

In federal court in Florida, the former president is charged with unlawfully retaining classified documents and obstructing government efforts to get them back, among other charges. In New York, he is charged in state court with falsifying business records in a hush-money payment case. In Georgia, he is expected to face state charges in connection with alleged efforts to overturn that state’s 2020 presidential election.

Some 1,106 people have been arrested for offenses in the Jan. 6, 2021, attack on the Capitol. Of those, 632 have pleaded guilty. Approximately 140 police were assaulted that day.

Brown, Bishai’s lawyer, is a Trump supporter. If he were representing Trump in the upcoming trial, he would likely ask for a change of venue based on the demographics of the Democratic leanings of the District of Columbia and the adverse publicity about the case, he said.

But, he added, he found Chutkan to be a judge who had empathy and did her homework. “A change of venue motion in Trump’s case would not be based on who the judge is,” he said.