United States v. Fitzsimons

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

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IN RE: APPLICATION FOR ACCESS TO : Case No.: 21-mc-90 (RC)
VIDEO EXHIBITS :
: Re Document Nos.: 1, 6
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MEMORANDUM OPINION

GRANTING PETITIONER’S APPLICATIONS FOR ACCESS TO VIDEO AND AUDIO EXHIBITS

I. INTRODUCTION

Pending before the Court are two applications submitted on behalf of sixteen media

organizations (the “Press Coalition”) for access to the video and audio exhibits (“Exhibits”)

submitted during the pretrial detention proceedings in the criminal case United States v.

Fitzsimons, No. 21-cr-158 (D.D.C.) (“Criminal Case”). Defendant Kyle Fitzsimons was among

the hundreds of people who stormed the Capitol on January 6, 2021 to stop Congress from

certifying the results of the 2020 presidential election. Following Fitzsimons’s arrest and 10-

count indictment, he was ordered detained pending trial and his subsequent motion to revoke the

detention order and for pretrial release was denied. To support its request for pretrial detention

and its opposition to revoke pretrial detention, the Government submitted three video recordings

of Fitzsimons on January 6 and two video and audio recordings of Fitzsimons’s conduct prior to,

and after, January 6. The Government agrees that the video and audio exhibits can be released.

See Gov’t Resp. to Appl. Regarding Video Ex. Release (“Gov’t Resp.”), Criminal Case ECF No.

31; Gov’t Resp. to Min. Order Regarding Suppl. Appl. for Access to Video & Audio Exhibits

(“Gov’t Suppl. Resp.”), Criminal Case ECF No. 41. Defendant, however, objects to both
applications, arguing that the risk of prejudice at trial is too great. See Def.’s Resp. to Appl.

Regarding Video Exhibit Release (“Def.’s Resp.”) at 3, Criminal Case ECF No. 32; Def.’s Resp.

to Suppl. Appl. for Access to Video & Audio Exhibits (“Def.’s Suppl. Resp.”) ¶ 5, ECF No. 42.

For the reasons below, the Court grants the Press Coalition’s application.

II. FACTUAL BACKGROUND 1

“Defendant Kyle Fitzsimons was among the hundreds of people who stormed the Capitol

on January 6, 2021 to stop Congress from certifying the results of the 2020 presidential

election.” United States v. Fitzsimons, No. 21-cr-158, 2021 WL 4355411, at *1 (D.D.C. Sept.

24, 2021). “He was arrested at his home in Maine on February 4, 2021 and charged with a 10-

count indictment on February 26, 2021.” Id. In response to the Government’s motion to detain

Fitzsimons pending trial, Fitzsimons declined a pretrial detention hearing in Maine and was

transported to the District of Columbia. See id. at *2. Following a pretrial detention hearing on

April 6 and 7, 2021 before Magistrate Judge G. Michael Harvey of the U.S. District Court for the

District of Columbia, Fitzsimons was ordered detained pending trial. See id.; 4/6/21 Detention

Hr’g Tr. (“4/6/21 Tr.”), Criminal Case ECF No. 19; 4/7/21 Detention Hr’g Tr. (“4/7/21 Tr.”) at

25:8–23, Criminal Case ECF No. 20.

Approximately two months after the April pretrial detention hearings, the Press Coalition

filed a request for access to the Exhibits that the Government submitted to the court pursuant to

Standing Order No. 21-28. See Appl. for Access to Video Exhibits (“Appl.”) ¶¶ 4–6, ECF No. 1.

“The government submitted three (3) videos” as exhibits at the two April hearings which

1
This background is drawn from the Government’s criminal complaint, the record before
Magistrate Judge Harvey, the record before this Court, the parties’ briefing for the pretrial
detention hearing and motion to revoke pretrial detention hearing, and the parties’ briefings to
the Court in support of each party’s motion in the current matter. It does not represent the
Court's findings of fact on the merits of the case.

2
“[n]either party sought a sealing order for . . . upon their submission.” Gov’t Resp. at 2. The

exhibits 2 included video from a body-worn camera worn by a Metropolitan Police Officer

(“Exhibit 7a”), 3 video surveillance from the Capitol Building (“Exhibit 7”), and a video and

audio recording of a Town of Lebanon, Maine meeting that Fitzsimons called into the day after

the riots to speak about his opinions of the event (“Exhibit 2”). 4 See Gov’t Mem. in Supp.

Pretrial Detention (“Gov’t Mot.”) at 3–4, Criminal Case ECF No. 7; Gov’t Opp’n Def.’s Mot. to

Revoke Detention Order (“Gov’t Opp’n”) at 3–4, Criminal Case ECF No. 35. Additionally, the

Government submitted to the court an audio recording exhibit of “a voice mail that was left by

Mr. Fitzsimons to a congressional office on December 20th, 2020.” 4/6/21 Tr. at 21:12–16.

These Exhibits were accompanied by several screenshots from the videos in the complaint and

detailed descriptions of what the Exhibits depicted in the Government’s brief. See Statement of

Facts to Compl. at 3–7, Criminal Case ECF No. 1; Gov’t Mot. at 1, 3–4, 7–8, 10.

On August 27, 2021, Fitzsimons filed a Motion to Revoke the Detention Order and for

Pretrial Release, which the Government opposed. See generally Def.’s Mot. to Revoke

Detention Order & for Pretrial Release (“Def.’s Mot.”), Criminal Case ECF No. 34; Gov’t

Opp’n. Following a hearing before this Court on September 16, 2021, Fitzsimons’s motion was

2
The Government numbered the Exhibits differently for the April hearings and
September hearing. For clarity, the Exhibits are numbered here consistently with the
Government’s numbering for the September hearing.
3
Because each pretrial detention hearing numbered the exhibits differently, this
numbering corresponds to the labeling of the exhibits in the September 2021 hearing before this
Court.
4
The Government did not attach Exhibit 2 to its brief for the April 6 pretrial hearing, see
4/6/21 Tr. at 19:5–13, but submitted Exhibit 2 to the court for the April 7 pretrial hearing, see
4/7/21 Tr. at 4:7–19.

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denied. See Fitzsimons, 2021 WL 4355411, at *8; 9/16/21 Mot. Hr’g Tr. (“9/16/21 Tr.”), ECF

No. 45.

After the September hearing on Fitzsimons’s motion to revoke pretrial detention, the

Press Coalition filed a supplemental request for access to the Exhibits that included additional

exhibits the Government submitted to this Court in support of its opposition brief. See Suppl.

Appl. for Access to Video & Audio Exhibits (“Suppl. Appl.”) ¶¶ 4–6, ECF No. 6. In addition to

the same exhibits the Government submitted at the April pretrial detention hearings, the

Government submitted an additional video exhibit at the September hearing of a second video

from another body-worn camera worn by a Metropolitan Police Officer (“Exhibit 7b”) and a

series of recorded jail calls. See 9/16/21 Tr. at 8:21–22, 21:18–24:8. The Government also

accompanied these Exhibits with video screenshots, and both parties provided detailed

descriptions of the Exhibits in their briefs. See generally Gov’t Opp’n; Def.’s Mot. Neither

party sought a sealing order for any of the Exhibits upon their submission at the September

hearing either. See Gov’t Suppl. Resp. at 2.

All parties relied heavily on the Exhibits during each proceeding. See generally 4/7/21

Tr.; 9/16/21 Tr. In addition to being extensively discussed in briefs and before the court at all

three hearings, the Government also “showed excerpts of those videos” and played the audio

recordings. 5 Reply Mem. Further Supp. Press Coalition’s Appl. For Access to Video Exhibits

(“Press Appl. Reply”) at 2, ECF No. 4; see generally 4/6/21 Tr.; 4/7/21 Tr.; 9/16/21 Tr. Relying

substantially on the Exhibits, the magistrate judge and this Court ordered Fitzsimons detained

5
Due to technical difficulties during the April 6 pretrial detention hearing conducted over
Zoom, the Government was unable to play Exhibit 11. See 4/6/21 Tr. at 21–24. However, the
Government submitted Exhibit 11 to the magistrate judge for the April 7 hearing, see 4/7/21 Tr.
at 5:23–6:5, and successfully played Exhibit 11 during the September hearing. See 9/16/21 Tr. at
14:12–22.

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pending trial. See Order of Detention Pending Trial at 2–4, Criminal Case ECF No. 36;

Fitzsimons, 2021 WL 4355411.

III. LEGAL STANDARDS

“The common-law right of public access to judicial records ‘is a fundamental element of

the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial

Branch.’” In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders, 964 F.3d

1121, 1127 (D.C. Cir. 2020) (quoting MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d

661, 663 (D.C. Cir. 2017)). “Release promotes the same instrumental goals underlying the

common law right: ‘producing an informed and enlightened public opinion, . . . promoting the

search for truth, and assuring confidence in judicial remedies.’” United States v. Munchel, No.

21-cr-118, 2021 WL 4709745, at *4 (D.D.C. Oct. 8, 2021) (cleaned up) (quoting In re Leopold,

964 F.3d at 1127).

Courts must first establish whether the subject of an application is a “judicial record” to

determine whether this important right is implicated. See Munchel, 2021 WL 4709745, at *3.

“[W]hether something is a judicial record depends on the ‘role it plays in the adjudicatory

process.’” Id. (quoting In re Leopold, 964 F.3d at 1128). “[N]ot all documents filed with courts

are judicial records . . . .” In re Leopold, 964 F.3d at 1128 (first alteration in original). Rather,

“[d]ocuments and other materials filed in court ‘intended to influence the court’ are judicial

records.” United States v. Jackson, No. 21-mj-115, 2021 WL 1026127, at *4 (D.D.C. Mar. 17,

2021) (citation omitted) (quoting In re Leopold, 964 F.3d at 1128). “[E]very part of every brief

filed to influence a judicial decision qualifies as a ‘judicial record.’” USA v. James, 21-cr-28-12,

slip op. at 1, ECF No. 360 (D.D.C. Aug. 23, 2021) (quoting League of Women Voters of U.S. v.

Newby, 963 F.3d 130, 136 (D.C. Cir. 2020).

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 There is a “strong presumption in favor of public access” when a document is a judicial

record. In re Leopold, 964 F.3d at 1127 (quoting United States v. Hubbard, 650 F.2d 293, 317

(D.C. Cir. 1980)). “[T]his presumption ‘may be outweighed by competing interests’” by

balancing the “public and private interests at stake.” In re Application for Access to Certain

Sealed Video Exhibits, -- F. Supp. 3d --, No. 21-mc-78, 2021 WL 2711706, at *3 (D.D.C. June

30, 2021) [hereinafter In re Klein Exhibits] (quoting MetLife, 865 F.3d at 665). District courts

balance the competing interests by applying the “six-factor test crafted by the D.C. Circuit in

United States v. Hubbard.” In re Klein Exhibits, 2021 WL 2711706, at *3. This test considers:

(1) the need for public access to the documents at issue;

(2) the extent of previous public access to the documents;

(3) the fact that someone has objected to disclosure, and the identity of that person;

(4) the strength of any property and privacy interests asserted;

(5) the possibility of prejudice to those opposing disclosure; and

(6) the purposes for which the documents were introduced during judicial proceedings.

Id. (quoting In re Leopold, 964 F.3d at 1131).

IV. ANALYSIS

Defendant objects to the release of the Exhibits on the grounds that the risk of prejudice

at trial outweighs the right of public access. See Def.’s Resp. at 3; Def.’s Suppl. Resp. ¶ 5. The

Press Coalition and the Government agree that the Hubbard test weighs in favor of releasing the

Exhibits pursuant to Standing Order 21-28. See Appl. ¶¶ 6–9; Suppl. Appl. ¶¶ 6–9; Gov’t Resp.;

Gov’t Suppl. Resp. For the following reasons, this Court will grant the Press Coalition’s

application.

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 A. The Video Exhibits Are Judicial Records

The Exhibits at issue are all judicial records. As mentioned above, the Government

submitted and extensively discussed them in its brief to the magistrate judge to “influence a

judicial decision” under the Bail Reform Act that the Defendant should be detained pending trial.

See Gov’t Mot. at 1, 3–4, 7–8, 10; Gov’t Suppl. Resp. at 2. Additionally, there were detailed

discussions during both pretrial detention hearings about Fitzsimons’s conduct and statements

that were captured in the Exhibits at precise timestamps. See, e.g., 4/6/21 Tr. at 14–17; 4/7/21

Tr. at 6–9. The magistrate judge conducted a close review of the Exhibits in considering whether

pretrial detention was warranted because Defendant posed a danger to the community. See

4/7/21 Tr. at 4:1–15, 6:3, 8:13–24, 19–20, 22–23, 25:3–12. Altogether, the parties’ and Court’s

heavy reliance on the Exhibits in reaching that outcome demonstrates that the Exhibits “played a

significant and meaningful role in the adjudicatory process.” Jackson, 2021 WL 1026127, at *5.

To be sure, Defendant does not dispute the Press Coalition’s assertion that the Exhibits

qualify as “judicial records.” See, e.g., Def.’s Resp. at 2. Instead, Defendant objects on the

grounds that “the strong likelihood of prejudice to Mr. Fitzsimons” if the videos are released to

the public tilts the outcome of the six-factor Hubbard test in his favor. Id. Accordingly, the

Exhibits will be analyzed as judicial records under the Hubbard test for purposes of determining

whether prejudicial concerns outweigh the right of public access.

B. Application of the Hubbard Factors

The Press Coalition claims that its application for the Video and Audio Exhibits should

be granted because the “presumption of public access” weighs in its favor. Appl. ¶ 8. Through

balancing the considerations of the six Hubbard factors, this Court finds that Defendant’s

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concern about the risk of prejudice does not outweigh the “strong presumption of public access”

to the Exhibits. Hubbard, 650 F.2d at 317.

1. Need for Public Access to Video Exhibits

The first Hubbard factor weighs strongly in favor of public release. “The fact that the

exhibits were referenced in the government’s public filings may create a public need for them.”

Jackson, 2021 WL 1026127, at *6 (cleaned up) (quoting EEOC v. Nat’l Children’s Ctr., Inc., 98

F.3d 1406, 1410–11 (D.C. Cir. 1996)). This is because “there is an independently strong public

interest in the legal significance” of records that are “specifically referred to in the trial judge’s

public decision.” Munchel, 2021 WL 4709745, at *5 (quoting Nat’l Children’s Ctr., 98 F.3d at

1409).

Defendant concedes that the public has an interest in accessing content related to the

January 6 events, but asserts that the Press Coalition has not sufficiently articulated its need for

the four Exhibits at issue because they “will do little to further the national discussion of the

events.” Def.’s Suppl. Resp. ¶ 7. However, this notion is contrary to the common law right’s

underlying goals that are considered in this factor. Media applications to inspect and copy

judicial records are not exclusively granted for video exhibits that depict events more

newsworthy than those already released. Instead, these applications “have been granted where

the exhibits raise ‘issues of major public importance related to the conduct not only of the

defendant[] but also of government law enforcement agents.’” Jackson, 2021 WL 1026127, at

*6 (alteration in original) (quoting In re Application of Nat’l Broad. Co., 653 F.2d 609, 620–621

(D.C. Cir. 1981)). Accordingly, any judicial records depicting “[t]he events of January 6 are ‘of

deep national importance,’ and there is a strong public interest in seeing real-time images of what

8
happened that day.” In re Klein Exhibits, 2021 WL 2711706, at *5 (quoting Jackson, 2021 WL

1026127, at *6).

Here, this factor also weighs strongly in favor of public release because the Exhibits

provided the Court with significant information on the Defendant’s contribution to “[t]his violent

challenge to a constitutionally mandated process.” Jackson, 2021 WL 1026127, at *6. The

video exhibits informed the Court that Defendant belonged to the specific “class of cases”

involving individuals engaged in “violent, assaultive conduct . . . against the various law

enforcement officers in that police line” from law enforcement’s perspective that day. 4/7/21 Tr.

at 19:4–7, 22:4–6. The audio recordings additionally informed the Court that Fitzsimons was the

“type of defendant,” Munchel, 2021 WL 4709745, at *5, who contributed to the violence with

“no remorse, no backtracking,” 4/7/21 Tr. at 25:4. Due to the Exhibits’ significantly informative

value, the magistrate judge extensively referred to them specifically and played them during the

public hearings. 6 See 4/6/21 Tr. at 14–23; 4/7/21 Tr. at 6–9; see also Nat’l Children’s Ctr., 98

F.3d at 1409 (finding a need for public access when “the documents at issue [are] . . . specifically

referred to in the trial judge’s public decision”) (quoting Hubbard, 650 F.2d at 318).

Altogether, the information the Exhibits supplied the court about Fitzsimons was the

basis for Magistrate Judge Harvey’s thoughtful opinion that the weight of the evidence against

Defendant was strong. See Order of Detention Pending Trial at 2–4. Therefore, releasing the

videos for the public to see for itself promotes the underlying goals of the common law right of

“produc[ing] an informed and enlightened public opinion” and “assur[ing] confidence in judicial

remedies.” Munchel, 2021 WL 4709745, at *4 (alterations in original) (quoting In re Leopold,

6
While the April pretrial detention hearings were conducted over Zoom and unavailable
for the public to attend in real time, the transcripts of both are publicly accessible. See generally
4/6/21 Tr.; 4/7/21 Tr.

9
964 F.3d at 1127).

2. Extent of Previous Public Access to Video Exhibits

The second factor also weighs in favor of public access. “Previous access has been

considered relevant to a determination whether more liberal access should be granted to

materials formerly properly accessible only on a limited basis through legitimate public channels

and to a determination of whether further dissemination of already accessible materials can be

restrained.” Jackson, 2021 WL 1026127, at *6 (quoting Hubbard, 650 F.2d at 318) (internal

alterations omitted). “Generally, when ‘much of the critical information is already in the public

forum,’ this factor weighs in favor [of] greater disclosure.” Munchel, 2021 WL 4709745, at *5

(quoting In re Application of New York Times Co. for Access to Certain Sealed Ct. Recs., 585 F.

Supp. 2d 83, 93 (D.D.C. 2008).

“[L]imited prior public access” to exhibits available through public forums like court

proceedings, criminal complaints, party pleadings, and court memorandum opinions weighs in

favor of full disclosure. See James, slip op. at 4 (citing In re Nat’l Broad. Co., 635 F.2d 945, 952

(2d Cir. 1980); see also Jackson, 2021 WL 1026127, at *6 (holding that January 6 exhibits

“publicly shown at the magistrate judge detention hearing” and included in the Government’s

publicly available brief favored release); In re Klein Exhibits, 2021 WL 2711706, at *5 (holding

that the second factor favored release where January 6 exhibits played during the public

teleconference hearing, and discussed in counsels’ public filings and the court’s decisions).

Transcripts of court proceedings, including those conducted over Zoom due to the COVID-19

pandemic, are also a form of prior public access favoring disclosure. Cf. In re Nat’l Broad. Co.,

635 F.2d at 952 (“Though the transcripts of the videotapes have already provided the public with

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an opportunity to know what words were spoken, there remains a legitimate and important

interest in affording members of the public their own opportunity to see and hear evidence.”).

Here, the prior public access to the Exhibits from the April and the September pretrial

detention hearings weighs in favor of public release. Screenshots and significant detail of all the

Exhibits contained in the parties’ filings and Court’s decisions from both April and September

hearings are publicly available online. See generally Def.’s Position on Gov’t Mot. Pretrial

Detention (“Def.’s Opp’n”), Criminal Case ECF No. 13; Order of Detention Pending Trial,

Criminal Case ECF No. 36; Def.’s Mot.; Gov’t Opp’n; Fitzsimons, 2021 WL 4355411. These

Exhibits, with the addition of Exhibit 7b from police body-worn camera footage, were also either

extensively discussed or publicly shown during the in-person September pretrial hearing.

9/16/21 Tr. at 5:13–7:23, 8:2–16, 8:21–9:13, 10:7–9,14:12–25, 19:2–13, 27:17–30:16, 42:8–13,

48:7–10. Between the two hearings, the Exhibits already have a high amount of prior public

access favoring their disclosure.

Admittedly, Exhibit 2 from a recording of a local town hall meeting, Exhibit 7 from

surveillance videos in the Lower West Terrace tunnel entrance, Exhibits 7a and 7b from police

body-worn camera footage, and Exhibit 11 of Defendant’s voicemails to a federal congressional

office have not been made available on the Court’s docket. However, contrary to Defendant’s

assertion that this factor is neutral because the Exhibits’ prior public access is limited to the

hearings, Def.’s Resp. at 3; Def.’s Suppl. Resp. ¶ 8, this factor does not require prior public

disclosure beyond the proceedings themselves to weigh favorably toward public access. See

James, slip op. at 4. Accordingly, it is significant for this Hubbard factor that extensive

discussion and description of the Exhibits was transcribed in the publicly accessible transcript of

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the April Zoom hearings. 7 See 4/6/21 Tr. at 22:8–20; 4/7/21 Tr. at 4:1–9:5. Given the

substantial extent of prior public access within the publicly accessible proceedings, this factor

weighs heavily in favor of public disclosure.

3. Identity of Person Objecting to Disclosure

The third Hubbard also factor tilts in favor of disclosure. This factor focuses on the

privacy interests of third parties, “provid[ing] broader protection from disclosure ‘where a third

party’s property and privacy rights are at issue [and] the need for minimizing intrusion is

especially great.’” Jackson, 2021 WL 1026127, at *7 (quoting Hubbard, 650 F.2d at 319).

Here, only Defendant Fitzsimons, rather than a third party to the proceedings, objects to

disclosure, “and he did so only in response to the Press Coalition’s Application.” James, slip op.

at 4; see also Gov’t Suppl. Resp. at 4. Because there are no third-party property or privacy rights

at issue, there is no “broader protection” from disclosure triggered under this factor. See id.

(quoting Hubbard, 650 F.2d at 319–20). Accordingly, this factor leans in favor of disclosure.

4. Strength of Asserted Property and Privacy Interests Asserted

The fourth Hubbard factor also weighs in favor of disclosure. This factor focuses on “the

objecting party’s privacy interest in the particular material at issue.” Jackson, 2021 WL

1026127, at *7. “[D]isclosure is discouraged where there is a possibility of ‘public humiliation

and degradation’ that would ‘constitute an unconscionable invasion of privacy’ to innocent third

persons.” Id. (quoting In re Application of Nat’l Broad. Co., 653 F.2d at 620). Here, Defendant

7
While technical difficulties during the April 6 pretrial detention hearing prevented the
Government from playing the audio of the voicemail Defendant left a congressional
representative prior to January 6th, see 4/6/21 Tr. at 21:12–25, the Government’s reading of
Defendant’s words in the publicly available hearing transcript, id. at 22:5–20, the discussion of
the recording in both transcripts of the April 2021 hearings, and the Government’s success at
playing the recording in the September hearing all nevertheless weigh in favor of public release.
See id. at 22:5–20; 4/7/21 Tr. at 6:1–13, 8:13–19, 23:1–7; 9/16/21 Tr. at 14:12–16.

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asserts no privacy interest in any of the Exhibits, nor could he “since the images of defendant

were captured while he was participating very publicly with a mob assaulting the Capitol.” Id.

Instead, Defendant contends this factor weighs in his favor because releasing the Exhibits

would expose him to “public humiliation and degradation.” Def.’s Suppl. Resp. ¶ 9 (quoting In

re Application Nat’l Broad Co., 653 F.2d at 620). However, this argument ignores the public

nature of Defendant’s conduct captured in the Exhibits. See James, slip op. at 4 (finding only a

weak privacy interest where “the video clip in question depicts [the defendant’s] public

conduct”). Exhibits 7, 7a, and 7b capture January 6 events that “not only took place in a public

setting but were also extensively captured by photographers and videographers.” See Munchel,

2021 WL 4709745, at *6. Not only were the January 6 events public, but Defendant made no

effort to shield his involvement from the public view. Rather, Exhibit 2 of a local town hall

meeting and Exhibit 9 of a news media interview 8 capture Defendant publicly sharing his

account of that day. See Fitzsimons, 2021 WL 435541, at *2, *5, *7.

While Exhibit 11 captures a voicemail message that is presumably unavailable to the

general public, any weight this might give towards nondisclosure is nominal considering

Defendant did not articulate a privacy right with respect to that particular exhibit nor did he seek

to seal any of the exhibits during or after the hearings. See Gov’t Suppl. Resp. at 2 (noting the

failure to request sealing of exhibits); Def.’s Suppl. Resp. ¶ 9 (objecting to the release of

“sensational images”). With little evidence of an invasion of privacy that would lead to

reputational harm overall, this factor weighs in favor of disclosure.

8
During the September pretrial detention hearing, the Government submitted quotations
attributed to Fitzsimons from a news interview. Gov’t Opp’n at 8–10; Exhibit 9. Although the
Press Coalition’s application does not seek disclosure of Exhibit 9, Defendant’s intentionally
public conduct reflected therein favors disclosure pursuant to Hubbard’s fourth factor. See
James, slip op. at 4.

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 5. Possibility of Prejudice

The fifth Hubbard factor tilts in favor of public release, though only slightly. This factor

considers “whether defendants’ rights in this proceeding will be prejudiced by release.”

Munchel, 2021 WL 470945, at * 7 (citing Hubbard, 650 F.2d at 320–21; Jackson, 2021 WL

1026127, at *7–*8). “The possibility of prejudice to the defendant[] by sensational disclosure is

a factor which may weigh in favor of denying immediate public access.” Hubbard, 650 F.2d at

320–21; see also Jackson, 2021 WL 1026127, at *8 (same).

Defendant’s position is that releasing the exhibits would taint the jury pool and deprive

him of his Sixth Amendment right to a fair trial by an impartial jury. 9 See Def.’s Resp. at 3;

Def.’s Suppl. Resp., ¶ 5. Specifically, Defendant contends that the exhibits contain “sensational

images” that are “deliberately chosen clips to support a certain argument,” increasing the risk of

prejudice already present due to various mainstream media January 6 documentary releases,

many of which feature Defendant. See Def.’s Resp. at 3–4 (citing various January 6 articles in

9
Defendant also made his Sixth Amendment fair trial argument under the third and sixth
Hubbard factors. See Def.’s Resp. at 3, 5; Def.’s Suppl. Resp. ¶¶ 8, 13. However, this Court
finds this interest is better considered here because the fifth prong “focuses on the trial rights of
the defendant,” Munchel, 2021 WL 4709745, at *6 n.2 (citing Hubbard, 650 F.2d at 320–21 &
n.107. Distinctly, the third prong focuses on the strength of any privacy rights asserted and the
identity of those objecting to disclosure , see Hubbard, 650 F.2d at 320, and the sixth factor
focuses on the purposes for which the exhibits in question were introduced, see id. at 321.

14
the media 10); Def.’s Suppl. Resp. ¶¶ 10(a)–(c), 11 (citing various January 6 documentaries 11 and

major news network articles).

Here, the “traditional method[s] of protecting defendants from the adverse effects of

publicity” are capable of sufficiently guaranteeing Defendant a fair trial. Munchel, 2021 WL

4709745, at *7 (quoting United States v. Criden, 648 F.2d 814, 828 (3d Cir. 1981). The Court is

equipped with many methods that can mitigate the prejudice from public notoriety, and

consistently regard these tools as “adequate to protect defendants’ rights.” See Munchel, 2021

WL 4709745, at *7 (collecting cases). “[R]igorous voir dire” has been widely relied on as

effective at mitigating such prejudice. See, e.g., Jackson, 2021 WL 1026127, at *8 n.4; In re

Klein Exhibits, 2021 WL 2711706, at *5; James, slip op. at 5. Additional measures like granting

continuances or changing venue are also tools at the Court’s disposal to avoid publicity

prejudice. See Munchel, 2021 WL 4709745, at *7 (citing In re Nat’l Broad. Co., 635 F.2d at 953

n.9). Indeed, Defendant’s pending request for a venue change to the District of Maine reflects

Defendant’s faith in at least one of those traditional methods to protect his Sixth Amendment

10
See, e.g., Brian Stelter, “‘Assault on Democracy’ explores the roots of January 6 and
why it matters today, CNN (June 20, 2021), https://www.cnn.com/2021/06/20/media/assault-on-
democracy-reliable-sources/index.html (reporting Defendant’s remarks at a public hearing before
the Maine legislature); Katelyn Polantz, How CNN obtained the dramatic videos of the US
Capitol riot, CNN (June 20, 2021), https://www.cnn.com/2021/06/20/politics/cnn-capitol-riot-
videos/index.html (reporting Judge Sullivan’s remarks about other January 6th footage);
Insurrectionist Wearing Butcher Jacket And Armed With Unstrung Bow Claims “I Was There
For Peace”, DAILY KOS (Mar. 1, 2021), https://www.dailykos.com/stories/2021/3/1/2018769/-
Insurrectionist-Wearing-Butcher-Jacket-And-Armed-With-Unstrung-Bow-Claims-I-Was-There-
For-Peace (calling Defendant a “racist conspiracy theorist”); Paul P. Murphy, Capitol riot
defendant has history of intimidating lawmakers, made racist speech at public hearing, CNN
(Feb. 7, 2021), https://edition.cnn.com/2021/02/07/us/capitol-riot-defendant-racist-public-
hearing/index.html (referring to Defendant’s speech remarks as “racist and xenophobic”)..
11
See, e.g., DAY OF RAGE: HOW TRUMP SUPPORTERS TOOK THE U.S. CAPITOL (The New
York Times 2021); 24 HOURS: ASSAULT ON THE CAPITOL (Hulu 2021); FOUR HOURS AT THE
CAPITOL (HBO 2021).

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rights. Def.’s Mot. Transfer at 25, Criminal Case ECF No. 47. In the absence of an explanation

of why the traditional methods “recognized as adequate protections of defendants’ rights” even

in “cases involving significant public attention” would not protect Defendant here, the Court’s

ability to use them leans this factor in favor of public access. Munchel, 2021 WL 4709745, at

*7.

Furthermore, Defendant’s current high publicity diminishes the concern of additional

prejudice. See Munchel, 2021 WL 4709745, at *7. “[T]he substantiality of such prejudice is

informed by multiple factors, including the extent of prior public disclosure.” James, slip op. at

5 (citing Hubbard, 650 F.2d at 322). As discussed above, the exhibits depicting Defendant’s

conduct were either publicly played at the hearings or are extensively described in publicly

accessible court opinions, party filings, proceeding transcripts, and public broadcast.

Accoridngly, for purposes of Hubbard factor five, it is significant that some of the Exhibits’

depictions have already been used by the media—like the picture Defendant mentions of him “in

the middle of a large group with his face covered in blood,” Def.’s Suppl. Resp. ¶ 10(c); see also

Statement of Facts to Compl. at 4; Gov’t Opp’n at 7.

Arguably, releasing the full length of the video and audio recordings admitted into

evidence would show more of “the whole event” than the “deliberately chosen clips” played,

briefed, shown in screenshots, and discussed during the hearings that Defendant claims

prejudicially show “mere moments of Mr. Fitzsimons’s actions on January 6.” Def.’s Resp. at 3;

cf. James, slip op. at 5 (finding fifth Hubbard factor neutral where January 6 video exhibits

portrayed a “narrative” that showed “some but not all of the conduct that a jury will have to

consider”). Furthermore, the fact that Defendant does not contend the “narrative” depicted from

the public access of the Exhibits from the proceedings is “embellished or materially inaccurate,”

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id., leans in favor of release considering the full context of the several articles already published

that Defendant characterizes as “biased and incendiary.” Def.’s Opp’n at 3. Given the vast

extent of prior public disclosure of Defendant’s conduct captured in the Exhibits already

available, releasing the Exhibits would not likely increase the risk of prejudice higher than what

already exists and which vigorous voir dire and a potential venue change could remedy. See

Munchel, 2021 WL 470975, at *7 (finding no increased risk of prejudice releasing January 6

pretrial detention hearing exhibits of already publicly available photos and detailed court

proceeding descriptions “considering previous publicity in this case”).

Defendant’s reference to existing prejudice from media reports about the January 6

events in general, and reports on his other conduct separate from what the Exhibits captured,

provides him no support. Def.’s Resp. at 3–4; Def.’s Suppl. Resp. ¶¶ 10(a)–(c), 11. Courts in

this district have consistently been unpersuaded that the “tremendous media coverage of the

January 6 events as a whole” and separate media coverage on defendants provide enough

additional risk of prejudice to overcome the strong presumption of public access. Munchel,

2021 WL 470975, at *8 (finding voir dire could cure any prejudice from releasing exhibits of

highly publicized January 6 defendants’ pretrial detention hearing); see also In re Klein Exhibits,

2021 WL 2711706, at *5 (finding exhibits on a widely-reported January 6 defendant did not

show the court anything “beyond what the papers and depictions in the papers have already

shown” about the defendant or January 6) (internal quotations omitted); Jackson, 2021 WL

1026127, at *8 (finding releasing exhibits depicting January 6 defendant’s violent conduct

during the riots did not exacerbate any prejudice “to an extent that overcomes the presumption of

public access”).

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 6. The Purposes for Which Video Exhibits Submitted

Finally, the sixth Hubbard factor also favors release. The Supreme Court has recognized

an exception to the common law right of public access where court files are used as “a vehicle

for improper purposes . . . such as to ‘gratify private spite or promote public scandal.’” Munchel,

2021 WL 4709745, at *8 (quoting Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 588 (1978).

In line with the Supreme Court’s holding, the D.C. Circuit has held that there is “a strong

presumption of public access to documents that a litigant submits with the intention that the court

will rely on them.” United States v. All Assets Held at Bank Julius Baer & Co., 520 F. Supp. 3d

71, 85 (D.D.C. 2020). Here, this factor weighs in favor of public release because the

Government introduced the exhibits to influence the Court’s decision to detain Defendant, and

Defendant makes no claim they were introduced for any other purpose. See Def.’s Resp. at 4–5;

Def.’s Suppl. Resp. ¶ 13.

* * *

Altogether, the six Hubbard factors weigh in favor of upholding the presumption of

public access by granting the Press Coalition’s application to access the Exhibits. The

countervailing interests Defendant raises to rebut this presumption, most notably the risk of

prejudice, are insufficient to overcome this common law right.

V. CONCLUSION

For the foregoing reasons, the Press Coalition’s application is GRANTED. The United

States shall make available to the Press Coalition the video and audio exhibits that accompanied

its criminal complaint and Memorandum in Support of Pretrial Detention, Criminal Case ECF

No. 7, as well as the video and audio exhibits that accompanied its Opposition to Defendant’s

Motion to Revoke Detention Order and For Pretrial Release, Criminal Case ECF No. 35,

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consistent with the procedures set forth in Standing Order 21-28. Pursuant to Standing Order 21-

28, the Press Coalition is granted access to these video and audio exhibits in those cases through

the electronic “drop box” system created by the U.S. Attorney’s Office of the District of

Columbia. “Moreover, because the right to public access includes the ability to ‘inspect and

copy judicial records,’ and [Defendant] offers no specific objection on this point,” the Press

Coalition is granted permission to record, copy, download, retransmit, and otherwise further

publish these video and audio exhibits. See In re Klein Exhibits, 2021 WL 2711706, at *6

(quoting Metlife, Inc. v. Fin. Stability Oversight Council, 865 F.3d at 665). An order consistent

with this Memorandum Opinion is separately and contemporaneously issued.

Dated: December 6, 2021 RUDOLPH CONTRERAS
United States District Judge

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