Well yeah, and this has been going on for some time. Remember Bundy Ranch? Remember the Oregon Occupation? Remember Schaeffer Cox? This criminal administration must be dealt with by the People and that is not going to happen with another round of elections.
There has been a severe lack of urgency in how the Biden Justice Department (DOJ) has gone about complying with its post-indictment due process obligations owed to defendants charged in connection with the January 6th protests. Under federal law, the prosecution has no “rights” when it comes to criminal cases—all “rights” belong to and are owed to defendants, by both the Executive and Judicial Branches. It is the obligation of the Executive to afford defendants their rights in the manner in which investigations and prosecutions are conducted; it is the duty of the Judiciary to ensure that the defendant’s rights are protected from deprivation by the misconduct of the Executive until such time as a jury determines the defendant’s guilt.
The position adopted by the DOJ in its memorandum seeks to make the DOJ’s problems the problems of the defendants and the court.
A few weeks back, DOJ prosecutors handling January 6th cases began to file legal memoranda offering weak excuses for why they are unable to comply with their obligation to provide discovery consistent with the federal rules and the defendants’ right to a “fair and speedy trial.” These memoranda describe the undertaking that the DOJ now refers to as the “The Capitol Breach” investigation.
The documents tell a sad tale in which a poor, beset-upon DOJ is saddled with an overwhelming undertaking connected to the events of January 6th, made all the more impossible by the obligation to comply with the Constitution and court rules established to protect the rights of criminal defendants. Here is a passage from one such memorandum that was filed by the Biden Justice Department in the matter of United States v. Timothy Hale-Cusanelli.
[T]he government’s investigation into the breach of the United States Capitol on January 6th, 2021 (the ‘Capitol Breach’) has resulted in the accumulation and creation of a massive volume of data that may be relevant to many defendants. The government is diligently working to meet its unprecedented overlapping and interlocking discovery obligations by providing voluminous electronic information in the most comprehensive and usable format.
Identical memoranda have been filed by the government in multiple other cases as well, including in the matter of United States v. Nathaniel DeGrave, United States v. Justin McAuliffe, and United States v. Aaron Mostofsky.
Nothing in the passage above addresses the failure by prosecutors in innumerable cases to comply with “Rule 16 of the Federal Rules of Criminal Procedure.” Under the Rule, a defendant is entitled, upon request, to production of certain evidence and information in the possession of the government. Two broad categories of material that fall within Rule 16 include any evidence the government intends to offer during trial to prove the defendant’s guilt; and any records, documents, items, etc., in the possession of the government that are “material to preparing the defense.”
The DOJ’s “Memo of Woe” continues:
The investigation and prosecution of the Capitol Breach will be the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence. In the six months since the Capitol was breached, over 500 individuals located throughout the nation have been charged with a multitude of criminal offenses. … There are investigations open in 55 of the Federal Bureau of Investigation’s 56 field offices.
The circumstances confronting Justice Department prosecutors here are entirely of their own making. No law or rule compelled the DOJ to file all the cases at the earliest possible moment it could. Nothing prevented DOJ management from, you know, “managing” the caseload by filing cases in smaller numbers at the outset, starting with most serious alleged offenders. This would have allowed prosecutors to work through the discovery problems in order to meet their obligations under the Constitution and procedural rules, rather than bringing the entire system to a grinding halt by needlessly dragging hundreds of people into court all at one time.
The position adopted by the DOJ in its memorandum seeks to make the DOJ’s problems the problems of the defendants and the court. The DOJ has an obligation to produce discovery that it cannot meet, and it seems to expect that the defendants and court are required to sit and wait while it solves its problems. But DOJ’s hopes in that regard are likely misplaced.
THE DOJ FAILS TO PRODUCE DISCOVERY
This point was brought home to a DOJ prosecutor on July 30th during a status conference in Hale-Cusanelli. The prosecutor had filed its “Memo of Woe” on July 15th.
During the hearing, Judge Trevor McFadden, an appointee of President Trump, noted that the government was continuing to charge and arrest new defendants, even when it was telling the Court and counsel that it was unable to comply with discovery obligations in the hundreds of cases it had already filed. Hale-Cusanelli has been detained without bond since his arrest on January 15th, and the prosecutor told Judge McFadden matter-of-factly that the DOJ would not be able to meet its discovery obligations earlier than 2022.
The government is deemed to have “knowledge” of everything captured on that footage, whether it has actually examined and cataloged the video or not.
Judge McFadden, however, was unmoved. Over the objections of the prosecutor, and despite her uncategorical statement that the government could not produce discovery ahead of the trial date suggested, Judge McFadden set trial in the case for November 9th—barely more than three months away. If the government fails to comply with its obligations to produce all discovery by the deadline imposed by the Court, a variety of remedies are available to address such failures, including exclusion of evidence and/or dismissal of charges.
This discovery issue is more complicated than it might first appear. The biggest problem faced by the government is what to do about the supposed 14,000 hours of videotape footage captured by both the open and hidden surveillance cameras that cover the entirety of the Capitol and its surrounding buildings and grounds. That footage exists, it is in the possession of the prosecutors and/or FBI, and under federal criminal law, the government is deemed to have “knowledge” of everything captured on that footage, whether it has actually examined and cataloged the video or not.
If there is anything that might arguably be described as “exculpatory” in that massive volume of video, the law applies the concept of “constructive knowledge” of that evidence to the government in a criminal prosecution. In a case called Kyles v. Whitley (1995), the Supreme Court held that prosecutors are deemed by law to have knowledge of all the facts about a case that are known to their investigators or contained in the case file, even if the prosecutors have no actual knowledge of some of the facts.
The problem for the prosecutors in the January 6th cases is that Kyles can be used by the defense to argue that the prosecutors and agents are deemed to know and have an obligation to produce prior to trial, whatever exculpatory might exist in the 14,000 hours of videotape. This will be true even if they have no actual knowledge of such exculpatory evidence as it might relate to an individual defendant in a particular case. The failure to produce that evidence in discovery prior to trial constitutes “suppression”—i.e., a violation of Brady v. Maryland (1963).
In other words, the fact that the DOJ has not yet been able to review all 14,000 hours of footage is not an excuse for failing to meet the government’s obligation under the Constitution to provide notice of exculpatory evidence to the attorneys for the hundreds of January 6th defendants. It cannot meet this obligation simply by making all 14,000 hours available to the defense. It must provide information to the defense about where in that massive amount of data such evidence might be found.
Understanding this constitutional burden, however, the prosecutor in the Hale-Cusanelli case was quite clear in stating the DOJ will not be able to comply with its obligations prior to November 9th, the trial date set by Judge McFadden. This circumstance is not unique to that one case. If the government cannot provide discovery of the video evidence—which may or may not include exculpatory material—in the Hale-Cusanelli case until sometime in 2022, then it cannot provide that discovery in any of the hundreds of other cases it has filed.
HIS “ACTIONS DIDN’T MATCH HIS RHETORIC”
The government’s confession that it is unable to timely process and review the thousands of hours of footage—along with social media posts, location history data, and cell tower data for thousands of devices present inside the Capitol—has likely produced the outcomes in a growing number of cases seen in the past several days. In three cases the Biden Justice Department accepted guilty pleas to misdemeanors where a felony charge was alleged in the indictment returned by a grand jury.
Prosecutors are seeking to avoid more trial dates being set while they remain unable to produce discovery as required by law.
Many of the indictments sought in the January 6th protest cases include a mix of both felony and misdemeanor crimes alleged to have been committed by the named defendants. A “plea agreement” is a document that establishes an agreement between the prosecution and the defense as to how the charges will be resolved. Ordinarily this will include a guilty plea to one or more of the crimes alleged in the indictment, combined with an agreement by the prosecution to dismiss all the remaining charges.
A “plea agreement” in a federal case is an agreement made only between the prosecution and the defendant. The Court is not involved in negotiating the terms of the agreement, and is not a party to the agreement. A plea agreement that dismisses charges filed by a grand jury must be “accepted” by the Court before it becomes valid. If the judge rejects the terms of the agreement the case goes forward to a trial on all the crimes charged in the indictment. If the liberal judges who make up the vast majority of the judges presiding over the January 6th protest cases are accepting these “petty” misdemeanor guilty pleas while dismissing felonies, that too is a comment on the manner in which these cases are being handled because the judges know such outcomes violate DOJ policy.
On August 4th, the government entered into a plea agreement in the matter of United States v. Karl Dresch, agreeing to dismiss the felony crime of “obstructing an official proceeding” in exchange for Dresch’s guilty plea to the “petty” misdemeanor crime of unlawful “parading” inside the Capitol. (A “petty” misdemeanor is one for which the maximum sentence is no more than six months in custody.)
Dresch has been detained in custody awaiting trial since his arrest in mid-January. His length of detention had exceeded six months—the maximum term for the charge to which he pled guilty. By offering to allow Dresch to plead to just the petty misdemeanor, the government knew he would be sentenced to “time served” and immediately released. And that is exactly what happened.
This time it was not a Trump-appointed Judge who let that be the outcome. Rather, District Judge Amy Berman Jackson, an appointee of President Obama, took the guilty plea and sentenced Dresch to “time served.” She did so without once asking the Biden Justice Department to justify its decision to dismiss the felony. In fact, Associated Press reporter Alanna Durkin Richer writes, “the Judge said a deal with prosecutors allowing him to plead guilty to a misdemeanor was appropriate because his ‘actions didn’t match his rhetoric’ and he didn’t hurt anyone or destroy anything at the Capitol.”
On July 30th, the government went forward with change of plea hearings in two other cases under the same circumstances and with the same outcomes, with the exception that neither defendant was detained in custody pending trial. In both United States v. Eliel Rosa and United States v. Jack Griffith, the DOJ agreed to accept guilty pleas to “petty” misdemeanors, and in return dismissed felony offenses charged against each defendant. In each case, the presiding judge was an appointee of President Obama. Court docket entries in a few other cases have scheduled change of plea hearings over the next two weeks, strongly suggesting that prosecutors are seeking to avoid more trial dates being set while they remain unable to produce discovery as required by law.
THE DOJ’S DOUBLE BIND
In negotiating the terms of plea agreements, it is contrary to Justice Department policy to accept a misdemeanor guilty plea when a felony was charged. The DOJ Policy Manual, “Principles of Federal Prosecution,” provides instruction on the decision-making that is involved in resolving a case through a plea agreement. “Section 9-24.430” of the manual states:
If a prosecution is to be concluded pursuant to a plea agreement, the defendant should be required to plead to a charge or charges:
That is the most serious readily provable charge consistent with the nature and extent of his/her criminal conduct;
That has an adequate factual basis;
That makes likely the imposition of an appropriate sentence and order of restitution, if appropriate, under all the circumstances of the case; and
That does not adversely affect the investigation or prosecution of others.
The problem is that when deciding that a misdemeanor is “the most serious readily provable charge” to accept in a plea agreement after having sought and obtained a felony charge in the indictment, the prosecutor is confronted with another DOJ policy—the one he/she was supposed to have followed when the charges were brought in the first case. “Section 9-27.300” of the DOJ manual states:
[T]he attorney for the government should bear in mind that he/she will have to introduce at trial admissible evidence sufficient to obtain and sustain a conviction, or else the government will suffer a dismissal, or a reversal on appeal. For this reason, he/she should not … recommend in an indictment, charges that he/she cannot reasonably expect to prove beyond a reasonable doubt by legally sufficient and admissible evidence at trial.
At the time the indictment was sought, the prosecutor was supposed to have made a judgment that there was sufficient admissive evidence to prove the charged felony at trial, beyond a reasonable doubt. Going before the court with a plea agreement that seeks to dismiss a felony and accept a plea to a misdemeanor calls into question the determination made to pursue a felony at the start of the case.
Prosecutors sought and obtained felony charges in many cases based on almost no meaningful review of actual evidence about what happened…
What’s more, how did the prosecutors who sought the indictments against the January 6th defendants know they would have “legally sufficient and admissible evidence at trial” to prove the charges beyond a reasonable doubt if, after nearly seven months, they are still making excuses to the courts for their inability to provide discovery of such evidence to the defense in these cases? What was the evidentiary basis for the initial felony charge?
What is obvious now in hindsight is that the Biden Justice Department prosecutors sought and obtained felony charges in many cases based on almost no meaningful review of actual evidence about what happened; it used fear and hysteria to justify doing so. Now they are being pressed to provide the evidence that is supposed to support the felony charges they brought, and are unable to do so in the timeframe required by law. So they are abandoning the cases on the best possible outcome available—the least serious of all federal crimes, “petty” misdemeanors.
Now that the DOJ has gone down the path of exchanging guilty pleas to misdemeanors for some defendants charged with felonies, it will become more difficult to not do the same for a much larger number of defendants where the facts are substantially the same.
The complications the government created for itself in its decision-making about what crimes to charge do not excuse it from complying with the rules of discovery and due process. But that is what the government has been telling the Judges and Defendants in the January 6th cases in its “Memo of Woe,” now making its way through various “Capitol Breach Cases.”
Producing discovery in a meaningful manner and balancing complex legal-investigative and technical difficulties takes time. We want to ensure that all defendants obtain meaningful access to voluminous information that may contain exculpatory material, and that we do not overproduce or produce in a disorganized manner. That means we will review thousands of investigative memoranda, even if there is a likelihood they are purely administrative and not discoverable, to ensure that disclosures are appropriate.
The simple reality is that the DOJ has not—even after seven months—complied with its discovery obligations such that the defendants’ statutory and constitutional rights had been met. They offer only excuses and ask for more time. The consequence is that defendants are forced to remain in a state of limbo, subject to detention or court supervision, and unable to move on with their lives. In other words, an arbitrary deprivation of life, liberty, and property without due process of law.
The Biden Justice Department needs to comply with its obligations or dismiss cases until it’s able to do so.
22 thoughts on “Political Prisoners: ‘Biden’ Justice Dept Can’t Produce Evidence It Supposedly Used To Indict the January 6th Protest Cases”
Mike Lindell’s Cyber Symposium from South Dakota starts at 10 AM eastern this morning.
Not to be missed.
Listen to this so you know what’s going on:
This is the link to the symposium:
No surprise here…my server is blocking access.
Anyone having the same experience?
Thank you for the underwhelming response…here it is on Whatfinger…no need to log in.
Wow, Will Not, do you and Doyle ever stop whining?
Lindell is raising hell and not holding back. Don’t miss it please. This is for YOUR COUNTRY…..at least what’s left of it.
Who says they committed suicide?
Mike Lindell’s 72 hour broadcast starts tomorrow:
I saw the videos of armed Capitol police opening the locked doors of the building to let the Jan 6 rioters into the building.
These scenes were a few moments later. Capitol police showing the demonstrators what offices to go into and posing with the rioters for selfies.
No wonder 4 Capitol police have committed suicide. They did wrong and they know it.
Who says they committed suicide?
I am telling you Jim, South Dakota continues to be the cure, the antidote for liberalism. Everything they are this place isn’t. People are living fearlessly. The few nutty masked people are so few and far between, they really stand out. The people I keep running into… one of the first things they bring up is the election. And the T-shirt memes are priceless. I met a guy in Deadwood named Dave from just south of the twin cities and his T-shirt said “I was going to be a Democrat for Halloween but I could not fit my head up my ass” Brilliant. Fearless is good. I can still taste the raw Harley fumes this morning. The Sturgis Rally’s name should be changed to the Black Hills Rally… it’s everywhere you go. In Hill City, a good 60 miles from Sturgis… they shut down main street to cars and only motorcycles are allowed. It’s a spectacle I had no clue of the span of it. One million people are expected to be part of the rally and that greater than the population od the entire state.
“We know that no one ever seizes power with the intention of relinquishing it. Power is not a means; it is an end. One does not establish a dictatorship in order to safeguard a revolution; one makes the revolution in order to establish the dictatorship.
The object of persecution is persecution. The object of torture is torture. The object of power is power.”
from George Orwell’s “1984”
EJ…damn hard to dispute that. But, I for one will never stop fighting. How about you?
Although, I cannot guarantee what would happen if my head was in a cage with a hungry rat.
I guess for me, one has to know or understand what they are fighting for, who they are fighting, and when to fight.
We have been so mind controlled for so long the white hats and the black hats, the truth and the lies, all of it is quite indistinguishable now isn’t it?
What priority order does one set their “pull the trigger” option?? What order for the non-violent activism…anti vaxx, anti lock down, anti chemtrails, anti mandatory behavior??
I awoke this AM from a dream of being back in SF, my home base, and some jerk was pushing his way through the crowd on the street on a ten speed, and I told him no riding on the sidewalk. He said “Fu*k you” and I woke up punching him in the face endlessly.
So in my dream I understood what I was fighting for, who I was fighting, and when to fight. But alas, will it be that clear in the near future??
We can’t even get but one person here to even ask for a “weapon of mass enlightenment” (my pdf on the Covid-19 scam) and this is supposed to be a truly intellectual activist site filled with truth and knowledge. So if people can’t be inspired or are so afraid to collect red pill information, just what is going to happen when the death vans start rolling??
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“The individual is handicapped by coming face to face with a conspiracy so monstrous he cannot believe it exists.”
– J. Edgar Hoover
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The current US Code of Federal Regulations (CFR).. which is what our Government HAS BECOME is ~ 104 MILLION words and would take about 6000 hours to read it, about 750 days at 8hrs@day.
Those who work with and through these documents after years often come across wording that even lawyers can’t understand.
Anyone can do this. Your pdf and an attached url to the 5 hour vid I posted earlier
But not a good story from Paneras today. The employees all got an email about three weeks ago that they once again had to start wearing masks…..not the customers, but the workers. Sure as hell goes against DeSantis’ proclamations, but I imagine he has no control over what employers make their employees do. I told my favorite barista she should fight it and gave her that pdf which she happily accepted. Good news is she had not had her children vaxxed,
This may be the mother of all covid scam vids. I’m only into it a bit, but it looks very well done. Put it away for a rainy day or when you are twiddling your thumbs…over 5 hours long.
COVID-19 DOES NOT EXIST | DOCUMENTARY
This is an astounding video. There is no speculation or hearsay. it’s all backed up with fact and video segments.The similarities between the former virus scams (including HIV) and the present deception is remarkable. The script is the same. They obviously understand the American memory is that of a goldfish. Just watch the first 30 minutes and I would bet you’ll be drawn in to the entire video.
I have to interrupt my own viewing of this ab-SO-lutely phenomenal video. It may be over five hours long, but there is nothing out there that compares to the dead on facts, the brilliant and simple chronology and irrefutable proof ( the ‘vid does not exist) as you will find in this documentary. Not a word is said that is not backed up. For a first video from this gentleman, this is beyond amazing. For now and to stimulate your interest, go to about 1:45 (one hour and 45 minutes) and listen to Kary Mullis’ assessment of the Rat Fauci: (whatever you do, please find time to watch this in full, even if it’s in segments..it takes EJ’s pdf to a visual level). JIm, I know this is long, but it would really serve well to put this on your BitChute channel)
Here’s more at about 2 hours and 38 minutes in regard to HIV, Kary Mullis and another LIE from the RAT Fauci. It seems there is no way to time stamp a BitChute vid, so I continue to do it this way. (if there is maybe someone can clue me in). Remember, Mullis got the Nobel Prize. All the RAT deserves is a fast trial and the gallows.
Here’s his conclusion…just watch from 5 hours and 5 minutes to the end…quite remarkable and clear:
It’s all bluster. It’s all drama. Just like the fake shooting of Babbitt. They never had a case and they know it…..as with the ‘vid in the Alberta Court and as with Sandy Hook in Fetz’s case. …if it goes to trial, they will be exposed…especially considering the cap cops involvement in clearing the way.
It’s all a damn show that is being exposed and they are peeing in their pants in fear and lack of evidence.This all has to come to a head soon. OR, look out for some major distraction coming to a theater near you SOON!
From 2,063 years ago:
“A nation…cannot survive treason from within. ..the traitor moves among those within the gate freely… For the traitor appears not traitor…He rots the soul of a nation, he works secretly and unknown in the night to undermine the pillars of a city, he infects the body politic so that it can no longer resist. A murderer is less to be feared.”
– Cicero, 42 B.C.
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To recent times:
“The means of defense against foreign danger historically have become the instruments of tyranny at home. If our nation is ever taken over, it will be taken over from within.”
– President James Madison
“Terrorism is the best political weapon for nothing drives people harder than a fear of sudden death.” – Adolf Hitler
“A state of war only serves as an excuse for domestic tyranny.”
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We have been clearly warned but who reads anymore or pays attention??
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There are now 432 former members of Congress working as registered lobbyists.