Courts unraveling cases against Jan. 6 defendants

 Andreas Widburg:

Prosecutors in the cases against the January 6 demonstrators are starting to run into some judicial pushback: Questions about exculpatory evidence in their possession not turned over as the law demands, lower courts assessing the defendant as more dangerous than the evidence warranted, and most significantly, whether the prosecution is overcharging defendants with the federal crime of obstruction. 

Most of the defendants are charged with knowingly entering or remaining in a restricted area -- a fancy way of saying trespassing. Defendants are entitled to see before pleading to the charges any materially exculpatory evidence in the government’s possession. Defense counsel have complained that the government has not been meeting this obligation, and the prosecution has been responding that it is unable to quickly assess all the evidence it has to meet this burden. As to those charged with trespassing, some are claiming they were invited in and, therefore, could not be guilty of the charges. The prosecution got one extension and the question is whether they should get another, a question complicated by the defendants’ right to a speedy trial. Sixteen of the defendants facing the most serious charges will not have their cases heard until next January. 

This week, the Department of Justice seems to have conceded the very point of the inapplicability of some trespass charges. 

In its pleading, it states: ”we possess some information that the defense may view as supportive of arguments that law enforcement authorized defendants (including Defendant) to enter the restricted grounds'. e.g., images of officers hugging or fist-bumping rioters, posing for photos with rioters, and moving bike racks, we are not in a  position to state whether we have identified all such information.”

To my knowledge, two appellate courts have now held that the trial courts have erred in assessing the appellant’s dangerousness. The first such case was decided in March. 


There is more.

The DOJ and FBI have been overcharging defendants and also been holding them in pretrial detention for what amounts to relatively minor offenses.  I suspect they are doing it for political reasons and not for the ends of justice.  Both the FBI and DOJ appear to have had an animosity toward President Trump and his supporters starting with his election and continuing it after the 2020 election.


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