Jan6: The American Gulag

[grarpamp]

https://www.theepochtimes.com/jacob-chansleys-lawyers-confront-dojs-claim-it-didnt-suppress-jan-6-evidence_5126916.html
https://www.documentcloud.org/documents/23706141-us-doj-response-to-pezzola
https://casetext.com/case/brady-v-state-of-maryland

Jacob Chansley’s Lawyers Confront DOJ’s Claim It Didn’t Suppress Jan. 6 Evidence

The Department of Justice’s (DOJ’s) latest objection to allegations
that it suppressed evidence in its prosecution of Jan. 6, 2021,
defendant Jacob Chansley flies in the face of the Sixth Amendment,
current and former attorneys of Chansley told The Epoch Times in
separate interviews this week.

“They are hiding. They affirmatively are electing not to disclose
[exculpatory evidence],” Albert Watkins, Chansley’s former attorney
who negotiated the Navy veteran’s 41-month sentencing agreement in
2021, told The Epoch Times on March 14, referring to the DOJ.

“They’re doing so in a fashion which, in my opinion, gives rise to an
inescapable conclusion that the Department of Justice has done more
damage to our democracy by how it has treated Jan. 6 defendants than
anything that had occurred on January 6.”

Watkins was reacting to the DOJ’s March 12 court filing on another
Jan. 6, 2021, defendant’s case, in which the government confronted,
for the first time in court, the newly surfaced surveillance footage
of the Jan. 6, 2021, Capitol breach aired by Fox News’s “Tucker
Carlson Tonight.”

Among the footage was a clip showing Chansley, unarmed, walking along
with several Capitol Police officers who didn’t attempt to remove him
from the Capitol building, which Carlson said shows that Chansley was
less violent on Jan. 6, 2021, than described by the government.

Despite the video records of the Navy veteran’s behavior, Chansley’s
current and former lawyers argued that the government violated
Chansley’s rights by suppressing this evidence during his trial, in
response to the DOJ’s claims to the contrary on March 12.

The answer to this debate is important because it shines a light on
the government’s prosecutorial conduct in handling Jan. 6, 2021,
cases, many of which have ended with swift sentencing.

Chansley is currently serving a 41-month sentence in federal prison
after pleading guilty to an obstruction charge in September 2021.
Government Shared All Evidence: DOJ

In a filing on March 12, the DOJ stated that it provided the footage
to Chansley’s attorney during the discovery phase of Chansley’s trial
in 2021, therefore satisfying the requirement of producing exculpatory
evidence, or evidence favoring the defendant, to the defense counsel.

The filing was in response to a motion to dismiss filed by the
attorneys of Dominic Pezzola, a Jan. 6, 2021, defendant currently on
trial, which alleged that the footage shown on “Tucker Carlson
Tonight” shows that the government “withheld” evidence in prosecuting
participants of the Jan. 6, 2021, Capitol breach.
Epoch Times Photo Attorney Steven Metcalf (2nd L), representing
defendant Dominic Pezzola for his alleged role in the Jan. 6, 2021,
Capitol breach, arrives at the E. Barrett Prettyman United States
Courthouse on Dec. 19, 2022. (Win McNamee/Getty Images)

“The CCTV footage is core evidence in nearly every January 6 case, and
it was produced en masse, labeled by camera number and by time, to all
defense counsel in all cases,” the DOJ wrote in its filing.

The department cited Brady v. Maryland, a 1963 case in which the
Supreme Court held that prosecutors must make available to the defense
counsel exculpatory evidence. As a part of that requirement, the DOJ
cited Brady’s text establishing that a Brady violation requires the
material in question to be “something that is being ‘[suppressed] by
the prosecution.’”

“Pezzola’s Brady claim therefore fails at the threshold, because
nothing has been suppressed,” the DOJ wrote, basing it on the claim
that it had provided Watkins with the “necessary tools” to identify
relevant CCTV evidence notwithstanding the voluminous discovery.

“Accordingly, the volume of discovery does not excuse defense counsel
from making reasonable efforts to ascertain whether an item has been
produced, let alone before filing inaccurate and inflammatory
allegations of discovery failures.”
DOJ Suppressed Evidence: Chansley’s Lawyers

Chansley’s lawyers disagreed with the DOJ’s claims, saying that the
bar for suppression is lower than what the government claims it to be.

“Suppression … is not the nefarious burying of evidence,” Bill
Shipley, Chansley’s current counsel, said in an interview with The
Epoch Times on March 13. “It just means it wasn’t brought to light by
the government. The government knew what was there and did not
illuminate the fact that it was there.”

He says the government may have violated Brady because they didn’t
identify the footage and its nature as potentially exculpatory
evidence during Chansley’s trial. Making them available without making
sure the defendant knows of the existence of the footage may
constitute suppression, he said.

“Suppression simply means it went undiscovered by the defendant beyond
a point at which it could be made use of,” said Shipley, who was a
federal prosecutor for 21 years. “If the government produced thousands
of hours of video and said, ‘There’s a minute of evidence that’s
favorable to Jacob Chansley—good luck,’ that production is not an
effective Brady disclosure.”

The video footage is relevant for reasons beyond proving Chansley’s
innocence or guilt, he told The Epoch Times, noting that it’s
important to answer the question of whether Chansley’s sentence was
fair under due process considerations.

“The question is: Were Jacob Chansley’s rights to due process and
effective assistance of counsel violated? Were the procedural
requirements complied with such that the process and outcome of his
case was a fair proceeding?” Shipley asked.

“They’re clearly the kinds of videos that, had Judge [Royce Lamberth]
seen them at sentencing, he might have concluded that Mr. Chansey is
not the personification of evil in the way the government has made him
out to be.”

Lamberth presided over Chansley’s trial.

“That might have caused Judge Lamberth to think that maybe 41 months
was too much time to give him, taking into consideration all of his
conduct, as opposed to just the precise conduct the government gave,”
Shipley said.
Not the 1st Time, Allegedly

For Watkins, the DOJ’s filing on March 12 rung in his mind vivid
images of deja vu that date to 2021, when the department recommended
to the courts a 20-year sentence for Chansley for his alleged actions
on Jan. 6, 2021. Watkins said the government lowered that sentence to
41 months only after Watkins requested Chansley’s military records
that demonstrated his mental health problems.

“Prior to entering into a plea, Jake was fighting for his sanity and
life in solitary confinement. He had been diagnosed 15 years earlier
by the government with a mental health issue, but the government never
told him of the diagnosis,” Watkin told The Epoch Times, noting that
that the government had records of Chansley’s mental health issues
since about the time that Chansley was in the military, but withheld
that record before offering a 20-year sentencing after Jan. 6, 2021.
chansley Jacob Chansley (C) and other protesters are seen inside the
U.S. Capitol on Jan. 6, 2021. (Manuel Blace Ceneta/AP Photo)

“The government didn’t provide [Chansley’s mental health records] to
me. They had control of that as well. I asked them for it, they did
not give it. And it wasn’t until I literally, after screaming and
yelling for help from the Department of Justice and from the Bureau of
Prisons and from the court itself, I finally got out there with a very
vulgar and high-profile characterization of many of the January 6
defendants, and lo and behold, within a matter of 24 hours or 48
hours, I get a call from the military record staffers, ‘Listen, I
found them, I’m getting them to you right now.’

“It wasn’t until we got the medical records, and only after a very
public involvement pleading for them, that we were able to convince
the government that indeed, maybe Jake wasn’t the leader—that Jake
wasn’t leading the charge into the Capitol.”

He said Chansley’s mental health record, which he characterized as a
piece of exculpatory evidence, was key to lowering the government’s
20-year sentencing recommendation to 41 months.

Fast forward to March 12, Watkins said the DOJ’s rebuttal is erroneous
and that the government has denied some of Chansley’s right to counsel
as defined in the Sixth Amendment of the Constitution.

“Not producing [exculpatory evidence] when you have it is suppressing
it. And it’s not [just] suppressing it—it’s shrouded in secrecy, which
is even more problematic,” he said. “When a criminally accused enters
into the federal court system, that criminally accused has
constitutional rights … [including] the ability to see the evidence
that has been amassed by a prosecuting party prior to making a
decision about whether to enter into a plea of ‘guilty,’ or to take a
case to trial.”
Epoch Times Photo Jacob Chansley, the so-called QAnon Shaman, was
escorted around the U.S. Capitol on Jan. 6, 2021, Fox News contended
in a special aired on March 6, 2023. (U.S. Department of
Justice/Screenshot via The Epoch Times)

“The government, by not affirmatively discharging its duties to Jake,
denied Jake his ability to enter into a plea agreement from a position
of knowledge and to freely—knowingly, and in an informed and voluntary
fashion—enter into that plea. Those requirements are vital. They are
fundamental tenants of our federal judicial criminal system.”
Judge Should Issue Show-Cause Order: Legal Expert

Mike Davis, president of the Article III Project, a legal nonprofit,
echoed Shipley’s and Watkins’s view in an interview with The Epoch
Times on March 15, noting that Lamberth should reopen the case and ask
the government to explain their rationale for prosecuting Chansley.

“The government violated Brady by failing to give Jacob Chansley
reasonable access to the exculpatory video evidence played on Tucker
Carlson’s show before Chansley pled guilty,” said Davis, a former
clerk under Supreme Court Justice Neil Gorsuch. “Judge Royce Lamberth
should issue a show-cause order. He should have issued it the day
after Tucker Carlson aired those videos.”

According to Davis, the government’s process of getting Chansley to
agree to the 41-month plea deal constituted fraudulent inducement.

“I would call this fraud in the inducement of the plea agreement. They
had access to these videos and didn’t provide them, and they induced
Jacob Chansley into a fraudulent plea agreement based upon this
omission,” he said.

The Department of Justice declined to comment.