At sentencing over Capitol breach, prosecutors will use Derrick Evans video against him

Almost 2 p.m. Jan. 6, 2021, just as protesters began grappling with bike rack barriers on the East Side of the U.S. Capitol, newly-elected West Virginia Delegate Derrick Evans narrated a possible outcome into livestreaming video: “I bet Trump would pardon anybody who gets arrested for goin’ in there.”

Instead, Evans faces sentencing this week after pleading guilty to a felony charge of civil disorder.

A defense attorney for Evans is asking for no jail time, instead proposing restitution and probation. Federal prosecutors are asking for Evans to serve three months incarceration, three years of supervised release and $2,000 as his share of damage to the Capitol that day.

U.S. District Judge Royce Lamberth will decide what sentence is most appropriate during a 2:30 p.m. hearing this Wednesday in U.S. District Court for the District of Columbia.

More than an hour of video that Evans streamed and then deleted will be at the center of the hearing. Prosecutors submitted a copy of his video as an exhibit, along with timestamps of Evans’ images and narration. In their sentencing memorandum, prosecutors note that Evans texted a friend after he’d exited the Capitol, ““Should I delete it? So there’s no evidence of what I did?”

Derrick Evans

Evans, now 37, had just been sworn in as a new delegate from Wayne County when he boarded a “Stop the Steal” bus late on Jan. 5, 2021, bound from Burlington, Ohio, to Washington, D.C. He is also a landlord, real estate investor and married father of four.

He resigned from West Virginia’s Legislature under pressure on Jan. 9, 2021, before ever serving in a regular session. Prosecutors took note of a reference to the elected position in the livestream video as Evans told those who watched, “My people didn’t vote for me because I was a coward.”

Evans’ submission for the judge’s consideration of his sentence includes dozens of pages of pleas from friends and family.

“At his very core, he is an honest, hard-working young man who loves his country, loves his community and loves his family,” his aunt writes to the judge.

“Our community is blessed to have someone like him,” writes a longtime friend.

“If there was ever a role model for our area it would be him, a good kid turned into an amazing citizen and most importantly matured into a great MAN,” writes another.

The sentencing statement submitted by his lawyer, Paul Taylor, emphasizes that Evans was accused of no violence at the Capitol and that he can be heard several times being courteous to Capitol Police officers.

“By multiple accounts, Derrick Evans is a church-going family man. He gives back to his community. He is giving of his time and energy. He is a problem solver, not a problem causer.”

The video, Taylor writes, “is also noteworthy in that it suggests a certain naivete. That is to say it suggests a lack of experience, wisdom or judgment rather than primarily criminal intent.”

Derrick Evans turns a camera on himself at the U.S. Capitol on Jan. 6, 2021.

Prosecutors agree that Evans has been relatively cooperative and remorseful since his arrest, noting that he has twice sat for hours-long interviews with investigators. But they say that had Evans engaged in acts of violence, he would be facing even more charges; thus, the absence of violence is not a mitigating factor in the serious charge that he does face.

And in response to the suggestion that the video reveals naivete, prosecutors counter, “his decision to advance on police and enter the Capitol was deliberate.” The prosecutors conclude, “His actions and statements show flagrant disrespect for the law, especially to uniformed police officers.”

Given his public profile, the prosecutors continue, Evans’s use of social media during the riot is more aggravating than the average rioter who posted on social media during or after the riot. “He was promoting the riot and inviting virtual engagement with it as it was happening,” the prosecutors write.

The prosecutors also contend Evans’s positions after being caught are inconsistent with what they see in the video.

In one interview, investigators said Evans contended police were letting inside the building. On video, in contrast, he can be heard saying, “There’s cops inside stopping us now!”

And in the second interview, Evans claims he brought along a helmet because he wanted to protect himself against members of the left-wing group antifa, but in video Evans repeatedly describes those surging into the Capitol as “patriots.” The video shows him zooming in on Capitol Police and saying “There they are! They got their riot gear! I’mma get my helmet!”

“His remorse after he fact may be genuine, but he recognized on that day that the riot was violent and destructive,” prosecutors write, concluding that at the time, “he celebrated the riot saying ‘Today is a test run. Today is a test run. We’re taking this country back.’”

Hundreds of people face charges from the breach of the U.S. Capitol on Jan. 6.

A mob storming the U.S. Capitol that day disrupted the constitutional duty of counting Electoral College votes and prompted the evacuations of representatives, senators and Vice President Mike Pence. One woman was fatally shot while trying to climb into the chambers, three others died from “medical emergencies” and more than 100 police officers were injured.

Of the thousands of protesters in Washington, D.C., that day, about 800 went into the Capitol, police have said.

In comments before the January 6th Committee last week, Congresswoman Liz Cheney pointedly said that “hundreds of our countrymen have faced criminal charges. Many are serving criminal sentences because they believed what Donald Trump said about the election and they acted on it. They came to Washington, DC at his request.”

Several West Virginians were charged from their participation in that day’s events.

They include George Tanios, a Morgantown sandwich shop operator accused in the assault of three Capitol police officers with pepperspray;  Jeffery Finley of Martinsburg, the leader of West Virginia’s chapter of the Proud Boy right-wing militant group; West Virginia National Guard member Jamie Lynn Ferguson; former Parkersburg Councilman Eric Barber and college senior Gracyn Courtright of Hurricane.

Courtright has already concluded a one-month stay in federal prison in Philadelphia. Barber was sentenced last week to 45 days in jail. Each faced misdemeanors. Ferguson has a plea hearing set for July 6. Finley has pleaded guilty and is to be sentenced July 19. Tanios has pleaded not guilty and is scheduled for trial in October.

Prosecutors in the Derrick Evans case will emphasize this week that he “whooped and hollered throughout his livestream.” The prosecutors will say he told those watching “This is about to get wild. It’s about to go down man. I think that you might want to get bail money ready for people who are going to do this.”

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