Pro-Trump January 6 rioters are facing a big question as they come to court: To get a COVID shot or not?

• Judges are growing increasingly concerned about unvaccinated January 6 defendants coming into court.
• A defense lawyer raised a January 6 defendant's recent vaccination to argue for a lower sentence.

As Robert Scott Palmer prepared to receive his sentence Friday for hurling a fire extinguisher at police during the January 6 attack on the Capitol, his lawyer turned to a topic of increasing concern for federal judges: vaccination status.

Palmer had been suspicious of the vaccine against COVID-19, his lawyer Bjorn Brunvand said, a distrust shared with many in the pro-Trump mob that ransacked the Capitol.

"Every … single … one of them," Judge Tanya Chutkan said, chiming in before Brunvand could say that Palmer had been convinced to take the vaccine and recently received his first dose.

As the first trials and other proceedings approach for January 6 defendants, federal judges have spoken with increasing alarm about accused Capitol rioters who remain unvaccinated and pose a safety risk to the courthouse staff. In the political sphere, Rep. Marjorie Taylor Greene, a Georgia Republican known for peddling conspiracy theories, recently said a detained January 6 defendant had received the vaccine to appear in court after being pressured by a federal judge.

Most hearings are being held virtually in light of the pandemic. But, with trials and other in-person proceedings set for early 2022, judges are grappling with how to balance the health risks posed by unvaccinated January 6 defendants with their constitutional rights.

The federal trial court posted a plan for jury trials that requires participants to wear face masks and asks them to alert staff to any exposures to COVID or symptoms consistent with the coronavirus. There is no requirement for vaccination.

But judges, as the masters of their own courtrooms, have crafted individual approaches to handling unvaccinated January 6 defendants, who together are providing a small window into how rabid support of Trump often runs in parallel with reluctance to inoculation. Former President Donald Trump experienced the political divide over vaccines at a recent public appearance, where he was booed after saying he'd received a booster shot.

A tale of two sentencings

On Friday, Judge Reggie Walton said he would have held a virtual sentencing for Anthony Mariotto if he'd known the Florida man had not been vaccinated against COVID-19. The in-person hearing, Walton said, subjected the courthouse to someone who'd chosen not to be vaccinated "despite all the people who are dying."

Walton weighed whether he would be putting corrections officers and other inmates at risk if he sentenced Mariotto to prison. The prosecutor, who appeared virtually after an exposure to someone who tested positive for COVID, asked for a four-month prison sentence.

"The fact of the matter is, Mr. Mariotto has chosen not to vaccinate himself. Every time he's on the street he's exposing other people."

Walton sentenced Mariotto to three months of probation.

In Palmer's case, his recent vaccination came into play at sentencing.

Palmer's lawyer noted the initial dose of the vaccine as he argued for a lesser sentence than the more than five-year prison term recommended by the Justice Department.

The lawyer said he had urged Palmer earlier in the week to get vaccinated and "move on." On the eve of his sentencing, the lawyer said Palmer was late for their meeting at the jail because he was receiving the initial dose.

"I am so very glad to hear that," Chutkan said. The judge explained that she was not punishing anyone based on their political beliefs or whether they want a vaccination against COVID.

"But your actions demonstrate to me, in doing that, that you're capable of reflection, of listening, and changing your mind based on information you receive," she added.

Still, Chutkan sided with the Justice Department's recommendation and sentenced Palmer to more than five years in federal prison.

Marjorie Taylor Greene and the political crucible

Outside of court, vaccination status has emerged as a talking point for Republicans who have decried the jail conditions for detained January 6 defendants.

Ahead of a Monday court hearing for January 6 defendant Ryan Nichols, Greene tweeted that the Texas man "took the vaccine so he could shown [sic] up in court in person, with his beard gone, and hair cut. (The judge kept asking why are you not vaccinated)."

"The jail refused to let him cut his hair or beard AND as of yesterday he was not allowed to shower for 3 days," added Greene, who previously said she has not received a COVID vaccine. "Today is his trial."

Monday's court proceeding was not, in fact, Nichols' trial. Instead it was a hearing on Nichols' request to be released from jail as he awaits trial on charges he wielded a crowbar at the Capitol and used pepper spray during the January 6 attack, which he called "the second revolution."

On Monday, Nichols' lawyer Joseph McBride railed against his client's treatment in the District of Columbia's jail, saying his client resembled Tom Hanks' character in the 2001 film "Cast Away" after going months without a haircut or shave.

"He looks like a homeless person on the streets of New York City, and he's in the care of the United States government. How is this acceptable?" McBride said, adding that Nichols had been vaccinated for the "specific purpose" of being able to appear in court.

A prosecutor, Luke Jones, said the jail conditions were connected to Nichols going months without a vaccination.

"That's just a public health issue," Jones said.

After an hours-long hearing, Judge Thomas Hogan ordered that Nichols remain held at the District of Columbia jail.