4 federal judges question the lenient charges against Capitol insurrectionists
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Jan 6 prosecutions
At least four federal judges have criticized the government’s prosecution of January 6th participants as too light, including most recently the chief judge of the District Court in DC.
In August, Judge Amy Berman Jackson (Obama appointee) questioned the plea bargaining process behind many of the Jan. 6 cases, asking why the government isn’t including supervised release in their plea deals:
Shortly before she accepted Simon’s plea, Jackson said she found it “concerning” that the specific charge Simon and others have pleaded guilty to removed the option of what’s known as supervised release. Supervised release comes with a series of conditions that defendants must follow or else risk more charges and prison time; those conditions can include a prohibition on drugs and guns, a curfew, a requirement to report contacts with law enforcement, or anything else the judge considers “appropriate.”
Jackson mused that a period of supervised release might be the “most appropriate way to address a lot of the behavior here.”
At the end of September, District Judge Emmet Sullivan (Clinton appointee) pressed federal prosecutors over their choice not to charge an insurrectionist for her Jan. 6 video stating, “We were looking for Nancy to shoot her in the friggin’ brain, but we didn’t find her.” Instead, Dawn Bancroft of Pennsylvania pleaded guilty to one count of illegally parading, demonstrating, or picketing in the Capitol.
US District Judge Emmet Sullivan called the statement about Pelosi “horrible” and “outrageous” and asked the prosecutor: “Did that not rise to the level of a threat?”
Assistant US Attorney Sean Murphy explained to the judge that Bancroft had made the statement as she was leaving the Capitol, so the government decided not to charge her for making a threat… Bancroft said it didn’t reflect why she’d gone inside the Capitol and that she wasn’t sure why she said it at the time. She repeatedly called the comment “stupid” and said she’d meant it as a joke…
A week later, District Judge Tanya Chutkan (Obama appointee) rejected the government’s request for home confinement for a Capitol rioter, finding it to be too lenient. She ordered Matthew Mazzocco, of San Antonio, to 45 days in jail after he pleaded guilty to one count of illegally parading, demonstrating, or picketing in the Capitol.
Chutkan said the mere presence of the hundreds of people who entered the Capitol did nothing more than to help create the momentum for violence. “His presence was part of the mob,” the judge said. “The mob isn’t the mob without the number. People committed those violent acts because they had the safety of numbers.”
“There have to be consequences for participating in an attempted violent overthrow of the government, beyond sitting at home,” Chutkan said in rejecting the government’s proposed three months of home confinement.
Then, yesterday Chief Judge Beryl Howell (Obama appointee) panned prosecutors for offering “petty offense” deals to Jan. 6 rioters despite the immense harm done to our democracy:
“No wonder parts of the public in the U.S. are confused about whether what happened on January 6 at the Capitol was simply a petty offense of trespassing with some disorderliness, or shocking criminal conduct that represented a grave threat to our democratic norms,” Judge Beryl A. Howell said in court Thursday. “Let me make my view clear: The rioters were not mere protesters.”
…Why, she asked, when prosecutors called the riot an “attack on democracy . . . unparalleled in American history,” were Griffith and other participants facing the same charge as nonviolent protesters who routinely disrupt congressional hearings?
“It seems like a bit of a disconnect,” Howell said — “muddled” and “almost schizophrenic.”
“Is it the government’s view that the members of the mob that engaged in the Capitol attack on January 6 were simply trespassers?” Howell asked incredulously. “Is general deterrence going to be served by letting rioters who broke into the Capitol, overran the police . . . broke into the building through windows and doors . . . resolve their criminal liability through petty offense pleas?”
On the other side of the spectrum, District Judge Trevor McFadden (Trump appointee) suggested that the government is going too hard on the insurrectionists compared to people arrested during the racial justice protests last year. “I think the U.S. attorney would have more credibility if it was even-handed in its concern about riots and mobs in this city,” McFadden said.
- Fact check: “The AP found that more than 120 [racial justice] defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants who’ve been sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more.”
Further reading: “Why Is Merrick Garland Going Easy on Jan. 6 Defendants?” Politico.
Prosecutors are supposed to “charge and pursue the most serious, readily provable offenses” — defined as “those that carry the most substantial guidelines sentence.” And when pleading a case out, they are supposed to include “the most serious readily provable charge” consistent with the facts.
As others have noted, pretty much anyone who entered the Capitol could be charged with more serious crimes than the lowest-level misdemeanors. They include entering or remaining in a restricted building (a misdemeanor with a maximum one-year term) or obstruction of an official proceeding (a felony). These charges subject defendants to the application of the sentencing guidelines and their various enhancements, which can quickly stack up and which can exert an anchoring effect at sentencing, even if the judges ultimately reject the government’s recommendation. A felony conviction also comes with all sorts of serious collateral consequences, including a prohibition on possessing firearms.
Oklahoma death sentence
Conservatives on the US Supreme Court lifted a lower court’s stay of execution yesterday, allowing Oklahoma to put a man to death using a controversial drug cocktail. By a 5-3 vote—with Justices Breyer, Sotomayor, and Kagan dissenting and Justice Gorsuch not voting—the court overruled a 10th Circuit panel and a district court without explanation. The lower courts had found that the drug cocktail used by Oklahoma was not proven to be effective at preventing “severe pain” (pdf):
the district court stated that “[t]here is a fact issue as to whether midazolam performs as well, for execution purposes, as defendants claim it does.” It also recognized “a fact issue as to whether midazolam will reliably render the prisoner insensate to pain . . . for the length of time necessary to avoid a constitutionally unacceptable risk that the prisoner will be subjected to a constitutionally unacceptable level of pain.”
In other words, there was enough doubt about the drugs in question that the execution was stayed to allow alternatives to be discussed. The Supreme Court disagreed.
John Grant, an African American man, was convicted of killing a prison cafeteria employee in 1988. When he was executed yesterday afternoon, he experienced convulsions and vomiting before death:
Sean Murphy with the Associated Press says Grant’s last words were a string of profanities. He says when the first drug (midazolam) began to flow, Grant began convulsing about two dozen times and vomiting.
He continued breathing and somebody wiped his face. He was still breathing and convulsing. At 4:15 they said he was unconscious. He was pronounced dead six minutes later. Sean has never seen an inmate vomit like this in about 14 executions.
Sean said it was disturbing to watch. He said he hasn’t seen a person convulse during an execution besides Clayton Lockett. He has never seen a person vomit during an execution
The Oklahoma Supreme Court voted to temporarily block three abortion restrictions from taking effect on Monday, adding to those already halted by a lower court. The three newly-blocked laws include House Bill 1904, requiring doctors to be board certified in gynecology and obstetrics in order to perform an abortion, and Senate Bills 778 and 779, which restrict the use of medication for abortion. All three judges appointed by Oklahoma Gov. Kevin Stitt (R) dissented from the decision.
Oklahoma County District Judge Cindy Truong (elected, non-partisan) enjoined a law to ban abortion after six weeks (HB 2441) and another that attempted to ban abortion entirely (HB1102) earlier this month.
The Texas 3rd Court of Appeals (state, not federal) ruled that former employees of Attorney General Ken Paxton are protected under the Whistleblower Act, allowing their lawsuit against him to proceed. Eight top aides to Paxton were either fired or forced to resign last year after accusing him of bribery and abusing the power of his office to benefit his friend and donor, real estate investor Nate Paul.
In its opinion, the court wrote that the former employees “sufficiently alleged illegal conduct by their employing governmental entity as contemplated by the Act” and disagreed with Paxton’s characterization of the whistleblower law, writing that while “Texas is an employment-at-will state,” the act “provides an exception to that general rule.”
“Although loyalty and confidence are important considerations in employment matters,” it wrote, “the Act provides that a State employer cannot fire an employee because he reports illegal conduct by the employer, even when it is that act of reporting that causes the employer to lose confidence or feel the employee lacks loyalty.”
Paxton is likely to either appeal to the full court or to the more conservative state Supreme Court.
Border wall lawsuit
Texas Attorney General Ken Paxton and Missouri Attorney General Eric Schmitt sued the Biden administration last week in an attempt to force the construction of a border wall on the federal dime. The states claim that the government broke the law by refusing to spend $1.375 billion appropriated by Congress for the border wall, using Trump-era statements from the Department of Homeland Security to argue their case (pdf):
In 2018, DHS assessed the effectiveness of physical barriers on the southwest border in controlling illegal immigration and drug trafficking, and proclaimed: “Walls Work. When it comes to stopping drugs and illegal aliens from crossing our borders, walls have proven extremely effective.”
Paxton and Schmitt state that failing to build the border wall allows “more illegal aliens to enter and remain in Missouri and Texas, resulting in increased costs to issue driver’s licenses, provide public education, provide healthcare for such aliens, and process and incarcerate aliens in their criminal justice systems, which in turn results in irreparable injuries to these States.”
They ask the court to declare the termination of the border wall unlawful and compel the Biden administration to “spend the funds appropriated for the construction of a barrier system along the southwest border.”
The Justice Department added two prosecutors to the federal investigation into Rep. Matt Gaetz (R-FL) in recent months. The additions, one an expert in child exploitation crimes and the other a top DOJ Public Integrity Section official, are looking into whether Gaetz provided goods or payment to a 17-year-old girl in exchange for sex.
Any potential charges will likely revolve around Gaetz’s former friend, Joel Greenberg, who is reportedly giving investigators new information:
At a brief hearing in Orlando federal court Monday, Roger Handberg, an assistant US attorney, said that Greenberg has made allegations to investigators that “take us to some places we did not anticipate.”
“What investigators do is they follow up on that to try to corroborate the information that’s been provided,” Handberg said.
It just so happened that hours after the NYT story about the new prosecutors dropped, Gaetz used a House Judiciary Committee hearing to impugn the integrity of the investigators (clip). Todd Gee, a deputy chief of the Public Integrity Section who joined the federal team looking into Gaetz, worked as House Democratic counsel during the W. Bush administration.
Gaetz: What about partisan committee staff. Their job is to ensure that one party or another preserves or, you know, captures the majority, that legislative proposals are successful or not successful. No prohibition against the department hiring them, is there?
Garland: As I understand it, every administration, including the one preceding this one, have hired people who have been committee staff. I don’t think there’s a statutory limitation…
Gaetz: Is there any prohibition against people who’ve been lobbyists, partisan committee staff or political consultants actually going in and serving in the Public Integrity Section, or is that allowed?
Garland: So, I’ll say again, the hiring in the public integrity section is a career hire made under the civil service. It’s not made—
Gaetz: I’m worried about their prior career. What I think is if someone has been a political operative to then put them in charge of election crimes, it’s kind of like having the fox guard the henhouse, don’t you think?
Garland: If you think that, that would be a perfect example of something the House should pass a statute barring people from particular professions from working in the Justice Department.
Gaetz then asked Garland to provide “a list of lobbyists, former lobbyists, or just former political consultants who work in the public integrity section,” which just so happens to be investigating him. Garland said that he did not intend to create a list of career officials and their previous jobs.
A Florida defense attorney who represented George Zimmerman during the Trayvon Martin trial was arrested for allegedly tampering with a witness in a juvenile rape case. Osceola County Sheriff Marcos López said the lawyer, Hal Uhrig, set up a meeting with the victim and her family to try to persuade them to “lie during your deposition and say the rape didn’t happen.”
Connecticut State Rep. Michael DiMassa (D) was arrested on federal wire fraud charges related to his second job as an employee of the City of West Haven. Earlier this year, DiMassa founded a company that allegedly defrauded the city of more than $600,000 intended for COVID-related expenses.
One example of an alleged fraud detailed in the affidavit involves a May 5 payment by the West Haven “COVID-19 Grant Department” for what is described in the payment voucher as services to the West Haven Health Department for “COVID-19 Legal+ Lobbying+ Site work for COVID-19 Clinic.”
He was released on a $250,000 bond and resigned from both the general assembly and the city position.