I've been keeping an eye cocked at what's developing in DC. I noted a while ago that the judges appear restless--they don't like what they're seeing with DoJ trying to keep people in prison while preliminary proceedings drag on with no trials in sight. That's not how the system is supposed to work--not all of the Judicial Branch has got the memo about how everything has changed under the new regime, including constitutional rights for criminal defendants.
Yesterday Shipwreckedcrew had an interesting and thorough article on all this at Substack. Before I briefly get to that, however, here are two of his tweets today, basically making fun of Amy Berman Jackson and the sentencing that took place today--because it sets the tone for his article:
Big news in J6 Cases today -- Judge Jackson sentences Karl Dresch to time served. Had been charged with a felony and detained pending trial.
Gov't dismissed felony today and allow petty misdemeanor guilty plea. Max sentence is 6 months.
Has been detained more than 6 months.
Obama liberal appointee Judge Berman Jackson presiding. Full of fire and brimstone in her comments about January 6 -- but this is FULL RETREAT by DOJ and the Courts from these cases.
What he means is ... How does 'insurrection' compute to a plea to a petty misdemeanor and a sentence of time served? That's a joke, if you were paying attention to the rhetoric all along, but that's the deal that DoJ agreed to. And Judge Amy--not to be confused wtih Justice Amy--looks a fool, for all her fire breathing comments.
OK, so if you want to get into the legal weeds, here's SWC's article:
Prosecutor claims DOJ can't comply with discovery obligation in that time
The basic problem with the case SWC discusses--and, count on it, there are many more like it--is that the regime is trying to keep citizens in prison on trumped up charges while they conduct investigation. That's totally backwards--or used to be when America was still a constitutional republic. A lot of judges are unhappy about this.
Here are a few excerpts to give you the flavor:
Prosecutors have been filing a Memorandum in several January 6th cases explaining the problems being encountered in complying with the obligations under the Rules of Criminal Procedure to produce discovery to defendants. The document might as well be entitled “Woe is Us”, as it sings a sad song of a beleaguered Department of Justice saddled with the historic and unprecedented burden of conducting the single largest and most extensive investigation and prosecution in the history of the Republic.
“Your Honor, we just need more time…”
The prosecutor found an unsympathetic ear in Judge McFadden. The hearing was “live-tweeted” here.
The prosecutor noted that in all of DOJ, only one computer system is capable of hosting all the material that has been gathered by investigators during the course of the investigation, and DOJ is unable to use email to transmit such a huge volume of evidence to meet its discovery obligations. DOJ has personnel going through thousands of hours of videotape involving hundreds of persons as it works to isolate the video that applies in each individual case so it can be provided to the defense.
Yet, as Judge McFadden noted, DOJ continues to arrest and charge people, thereby adding to the burdens that it cannot now meet. And defendants like Hale-Cusanelli sit in jail waiting for DOJ to do its job.
The prosecutor at some point noted that she was normally assigned to white-collar investigations. Judge McFadden inquired whether it was normally the case in white-collar investigations to charge first and gather evidence after charging? The answer was obvious.
Judge McFadden asked if the government was prepared to set a trial date for Hale-Cusanelli, and the prosecutor said she could not do so without discussing the issue first with her supervisor — not the right answer.
Word of advice to young or aspiring AUSAs — it is never a good idea to respond to a question from a federal judge by saying “I need to talk to my supervisor.” The supervisor sent you into the courtroom as the “United States” in the case. If the question requires a supervisor’s input, he/she should be standing next to you in court.
When the prosecutor told Judge McFadden that the government could not go to trial in 2021 and that it would at least until 2022 to prepare and produce all discovery to the defense, that wasn’t good enough. Judge McFadden then did what nearly all federal judges do in that situation — “Are you available on November 9?” he asked. And just like that, the Hale-Cusanelli case is set for trial on November 9.
This means the Speedy Trial Act “clock” is now running on the government —
It would be funny, if not for the injustices being inflicted on the defendants.