Say, don't federal prosecutors have a duty to disclose all potentially exculpatory evidence to a defendant?
LOL, sure, sure. What did you just get here? In actual fact, in a case the prosecutor really wants to win for political reasons, or because it's a high-profile case and his reputation and someone who "can get things done for Uncle Government" will turn on whether he secures a conviction or not, the more exculpatory the evidence is the more prosecutors will fight to hide it from the defense. They will make up incredibly convoluted stories about how the exculpatory evidence is actually inculpatory evidence, if you view it in a certain way, or is just completely irrelevant.
They no doubt will claim they believed these videos were irrelevant.
Oddly enough, every defense attorney in the world, and every fair-minded lay observer, disagrees.
The federal prosecutors here should be disbarred, or at least fired from government service.
But they won't be.
They'll be promoted.
They did what their Regime masters demanded of them. They destroyed Regime enemies using every means available to them, whether legal, extra-legal, or brazenly illegal.
While I admit that I approach these stories from the perspective of a long-standing criminal defense attorney, I would be outraged if I was unable to see such evidence before a plea or sentencing. At no point in the videotapes does Chansley appear violent or threatening. Indeed, he appears to thank the officers for their guidance and assistance.
Before addressing the legal implications of this footage, one thing should be clear. The public should have been given access to this footage long ago and the Jan. 6th Committee withheld important evidence on what occurred inside the Capitol on that day.
While it is understandable that many would object to Carlson being given an exclusive in the initial release, many in the media are denouncing the release of the footage to the public at all. The press and pundits are now opposing greater transparency in resisting any contradiction of the narrative put forward by the Jan. 6th Committee. Indeed, MSNBC's Jason Johnson angrily objected that this is "federal evidence" -- ignoring that it is evidence that was denied to criminal defendants.
This is not just material that the public should be able to see, it was potential evidence in criminal cases like that of the QAnon Shaman.
When the footage aired, I wrote a column raising the question of whether this evidence was known to or shared with Chansley's defense. After all, he was portrayed as a violent offender by the Justice Department at his sentencing.
It now appears that the answer is no. I spoke with Chansley's new counsel, Bill Shipley, and confirmed that defense counsel did not have this material.
In the hearing, federal prosecutor Kimberly Paschall played videos showing Chansley yelling along with the crowd and insisted "that is not peaceful."
That portrayal of Chansley would have been more difficult to maintain if the Court was allowed to see images of Chansley casually walking through a door of the Capitol with hundreds of other protesters and then being escorted by officers through the Capitol. At no point is he violent and at no point is he shown destroying evidence. Instead, he dutifully follows the officers who facilitate his going eventually to the unoccupied Senate floor.
We all knew that Chansley was treated more harshly because of his visibility. It was his costume, not his conduct, that seemed to drive the sentencing. In the hearing, Judge Royce Lamberth noted, "He made himself the image of the riot, didn't he? For good or bad, he made himself the very image of this whole event."
Lamberth hit Chansley with a heavy 41-month sentence for "obstructing a federal proceeding."
However, the QAnon Shaman was led through the Capitol by officers. Defense counsel could have noted that his "obstruction" in going to an unoccupied Senate floor was facilitated by officers. While the police were clearly trying to deescalate the situation after the Capitol was breached, this is evidence of how Chansley came to the Senate. Indeed, his interaction with officers could have impacted how he viewed the gravity of his conduct. It certainly would have been material to the court in sentencing the conduct.
...
I have great respect for Judge Lamberth, who has always shown an admirable resistance to public pressure in high profile cases. I cannot imagine that Lamberth would not have found this footage material and frankly alarming.
Turley says that a complication in alleging a Brady violation -- the affirmative duty to disclose exculpatory evidence -- is that Chansley pleaded guilty. However, Turley admits that his plea was likely due to the government exerting maximum, tortuous pressure on him by keeping him locked up in solitary confinement to extract that very plea.
Part of the plea agreement contained, as usual, a relinquishment of the right to appeal.
So just by torturing someone, a prosecutor can get the target to plead guilty in a weak case and then have the entire matter covered-up by extracting the target's promise to never complain of or question his behavior.
But he thinks that maybe Judge Lamberth might be outraged by the failure to disclose the evidence.
I can answer that: No, he won't be. Lamberth has been bloodthristy and fascist in dispensing Victor's Justice to the poor souls the government trundles before him, and will make up some procedural reason why he shouldn't disturb his the insane 41-month sentence he imposed on a man who is guilty of going on a guided tour of the Capitol.
A man who sentences people based on his distaste for their costuming is not a man much interested in substantive justice.
Meanwhile: Gingerbread Spokescookie says that this was the greatest threat to our nation since the Civil War.