Prisoners of the US Genocide War By Charles Taylor (Florida)
The January 6 peaceful protesters have faced torture and human rights abuses, and are now being denied basic legal process. In the future no doubt anyone who sticks their head up against the CCP Beijing Biden regime will not have the luxury of human rights abuses in jail, but will be given the Ashli Babbitt treatment of summary execution on the spot. Trumps’ dopey, gutless supporters should have a mass strike and do something legal, but the fat cheese burger man said to stand down and watch the country burn, just as he watched the country burn in 2020 at his watch.
Oh, he is going to win the 2024 election, because the Democrats won’t steal it again, he thinks! Dream on dope! The greatest tragedy is that the sheeple have not woken up to traitor Trump and booed him off the stage, and right out of politics. No wonder evil always triumphs; the people’s IQ is really less than that of sheep! And the enemy knows it, and encourages the breeding down.
“Offering pleas to misdemeanors and dismissing felonies violates written DOJ policies.
By Human Events | August 5, 2021
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:
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:
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.”
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.”
These are obvious communist trials along the lines of Maoist China and the USSR, no more than state terrorism to attack Trump supporters. The cold blooded murder of Ashli Babbitt, is the most glaring example of this anarcho-tyranny.
“By Paul Sperry, RealClearInvestigations
August 5, 2021
Kicking off the first hearing of the House Select Committee investigating the U.S. Capitol riot, Chairman Bennie Thompson, a Mississippi Democrat, promised to fully investigate "the facts of what happened on Jan. 6,” calling it “a scene of violence in the citadel of democracy.”
Photos from Jan. 6 show Byrd “gunslinging like some cowboy,” the Babbitt family lawyer says. In this detail from the photo at top, the officer's pistol is low at his side -- pointed in the direction of other officers with their backs to him, finger apparently on the trigger.
Stefani Reynolds/Bloomberg News
But over the next 3½ hours, he and other Democrats, along with their handpicked Republican panelists and police witnesses, never mentioned the most lethal act committed that day — the fatal Capitol Police shooting of unarmed protester Ashli Babbitt. It was the only shot fired during the entire riot.
This omission angered Babbitt’s family and a number of Republicans who maintain that the Select Committee and the Capitol Police are covering up the circumstances surrounding her death. Questions linger over the shooting, especially whether the officer who fired the fatal shot warned Babbitt to stop before he opened fire as she attempted to breach a barricaded door inside the Capitol Building.
The officer’s lawyer insists his client not only issued such a command, but did so loudly and clearly. However, in an interview with RealClearInvestigations, Babbitt family attorney Terry Roberts said he has gathered evidence indicating the officer, a plainclothes police lieutenant, remained silent. Far from warning Babbitt he would shoot, Roberts said the officer “ambushed” her from the side where she could not see he had taken up position in a hall doorway and had trained his weapon on her.
“It’s not debatable,” said Roberts. “There was no warning.”
A Maryland personal-injury lawyer who specializes in police misconduct cases, Roberts has won several million dollars for victims of police brutality. He said he is preparing to file a wrongful-death lawsuit against the Capitol Police and the officer, seeking more than $10 million in damages.
Babbitt, 35, was fatally wounded as she attempted to climb through the broken window above a door leading to the House chamber, where lawmakers were being evacuated. Standing to the side of a pile of furniture blocking the doors and out of Babbitt’s view, the officer took aim with his Glock service pistol, striking her in the left shoulder. Babbitt fell back from the doorway to the floor. She was transported to Washington Hospital Center, where she died from injuries sustained from the .40-caliber bullet wound.
More than six months after the shooting, the U.S. Capitol Police still refuse to release the name of the officer. But several sources have identified him as Lt. Michael L. Byrd, a 53-year-old veteran of the force who was serving as commander of the House Chamber Section of the Capitol Police on Jan. 6. He has not returned to duty and remains on paid administrative leave. Attempts to reach Byrd were unsuccessful.
From Ashli Babbitt's left as she climbed through a broken window, the officer took aim with his Glock service pistol ... striking her in the left shoulder. Babbitt fell back to the floor, fatally wounded.
YouTube/National File
Though Byrd appears to have been cleared of criminal wrongdoing, he may still be subject to civil action. If Babbitt was not given an opportunity to obey commands before she was shot, it could figure prominently in the family’s planned wrongful-death suit against the officer. Roberts said he has interviewed several witnesses who were standing outside the Speaker’s Lobby with Babbitt, and that they'll testify they did not hear the officer issue "any kind of warning."
He also said video recordings his investigators have analyzed reveal that other police who were in the hallway with the officer did not react as expected before he fired. He said they seemed to be caught unaware as he opened fire. Roberts said he has lined up expert witnesses, including ex-cops and use-of-force experts, who will testify that the officers behind him in the Speaker’s Lobby would have taken cover or crouched and pulled their own weapons if they heard the lieutenant give repeated warnings he was going to shoot. Instead, Roberts said, they appeared to be casually standing or walking around in the lobby in the seconds leading up to the shooting.
“Those other officers were within earshot. If he’s yelling, they certainly aren’t showing any reaction to it,” he said. “If he was giving any kind of warning, why didn’t they react?” Roberts added that no warnings can be heard coming from the officer in any videos taken at the scene.
The officer’s lawyer, Mark Schamel, insists his client issued verbal commands and warnings to Babbitt. “He was screaming, ‘Stay back! Stay back! Don’t come in here!” Schamel said.
Schamel said witness statements back him up. He explained the lieutenant's commands were not picked up on video recordings because the footage was shot on the other side of the doors where dozens of rioters were shouting and banging and drowning out his words. And he said his client could not be seen yelling out the instructions because his mouth was covered by a mask he wore as part of COVID-19 protections.
It’ not clear if this critical issue was resolved by the investigation of the shooting by the Justice Department, which concluded in April that “there is insufficient evidence to support a criminal prosecution” of the officer for “willfully” violating Babbitt’s civil rights, though it did not rule out the possibility he acted out of “panic” or “even poor judgment." Justice investigators reportedly did not pursue murder or manslaughter charges.
“They cleared him real fast,” U.S. Capitol Police Labor Committee Chairman Gus Papathanasiou said. "I was surprised."
“I’m not sure how he was justified shooting her when there was a SWAT team right behind her,” added a veteran Capitol officer, referring to three heavily armed USCP officers who had positioned themselves between the doors and the mob. “They saw no immediate threat.” The officer spoke on the condition of anonymity to discuss a sensitive matter. A Capitol Police spokeswoman would not say if the officer’s actions were consistent with use-of-force policies, which are not publicly available. In a statement released earlier this month, however, USCP noted that it is "increasing its use-of-force ... training.”
Schamel said his client received his training primarily at the Federal Law Enforcement Training Centers in Glynco, Ga., where Capitol Police recruits spend about two months before coming back for another two months of agency-specific training. Although the FLETC training emphasizes use-of-force decisions through simulated-shooting exercises, Capitol Police officers are not trained for riot-control situations on the scale of Jan. 6.
“We were trained in what to do if gunmen tried to storm the Capitol, but we were not trained in what to do if hundreds of people decided to rush the building,” former Capitol Police officer Patrick Skinner said. On Jan. 6, he added, police were unsure whether they were facing an imminent deadly threat or whether they were authorized to use deadly force.
“There was only one incident of deadly force by a police officer,” Skinner noted. “Every instinct of those [other] police officers was to not shoot.”
Rep. Bennie Thompson, right, a Mississippi Democrat, promised to fully investigate "the facts of what happened on Jan. 6.” But in his panel's extensive opening hearing, there was no mention of the killing of Ashli Babbitt.
A former federal inspector general told RealClearInvestigations that even the Capitol Police are relatively unprepared to react to the kind of threat posed on Jan. 6 in which a mob tried to beat down doors leading to the House chamber.
“This is not meant pejoratively but just as a fact, but the [Capitol Police] is far from being some kind of elite law enforcement body,” the inspector general said, speaking on condition of anonymity. “Its principal function is to assist tourists, maintain decorum in a tourist environment, and help out members of Congress and their staffs."
Roberts said as part of the discovery process, he plans to seek the shooting officer’s training records and his discipline file containing any infractions or complaints of misconduct. He noted that in February 2019, Byrd was investigated for leaving his department-issued Glock-22 firearm unattended in a restroom on the House side of the Capitol, even though the potent weapon, which fires .40-caliber rounds, has no manual safety to prevent unintended firing. The abandoned gun was discovered by another officer during a routine security sweep.
A Capitol Police spokeswoman would not say what, if any, disciplinary actions were administered against the officer. Unlike other police forces, it does not have to disclose records on police misconduct.
The Photo Evidence
Also, Roberts said the officer appeared to lack trigger discipline, judging from photos taken by a freelance photographer inside the House chamber before the shooting down the hall in the Speaker’s Lobby. “He’s gunslinging like some cowboy,” the lawyer said.
In one of the freelancer’s photos obtained by RCI, the officer can be seen advancing toward the door of the chamber while several other law enforcement officers had taken position behind a barricade. His Glock-22 is slung low at his side pointed in the direction of the other officers, whose backs are to him, and his finger appears to be on the trigger.
The veteran Capitol Police officer who spoke to RCI on the condition of anonymity said his colleague was not following department firearms training, which requires officers to keep their weapons pointed in a safe direction while making sure of what’s in front of and beyond a target, and to keep the finger off the trigger until ready to fire.
“His trigger finger shouldn’t be inside the trigger guard and the gun shouldn’t be pointed at other officers. He’s even pointing it in the direction of a member of Congress,” the fellow officer said, referring to Rep. Markwayne Mullin (R-Okla.), a former professional mixed-martial-arts fighter who had joined the scrum in front of the chamber doors.
“I can’t tell you how many officers have contacted me to say that what that guy did doesn’t pass muster,” Roberts said in an extensive interview. “No one has come forward to say this was justified homicide, not even the Justice Department.”
“The way he did it — hiding in a room and then popping out and firing — is a problem,” Roberts added. “If his objective was to stop her, he didn’t need to shoot. He could have got out in front of her and used a number of other methods of less-lethal force. He could have tried to cuff her.”
Police have confirmed that Babbitt, an Air Force veteran, was unarmed. (If arrested, she would have faced unlawful entry and disorderly conduct on Capitol grounds charges, police sources say.) “I would call what he did an ambush,” Roberts continued, “I don’t think he’s a good officer. I think he’s reckless.”
While Roberts argued Babbitt did not pose a threat, the officer’s lawyer insisted that his client was acting to protect himself and lawmakers from “bodily harm."
"He was acting within his training,” Schamel said. "Lethal force is appropriate if the situation puts you or others in fear of imminent bodily harm.”
Added Schamel: "There should be a training video on how he handled that situation. What he did was unbelievable heroism."
Roberts argued that he could have retreated if he feared for his life, as other officers did that day — and later received medals for heroism — but Schamel countered that he was guarding a critical chokepoint and saved a "potential massacre of lawmakers and staff” by the mob.
“The speaker may have been escorted out of the area, but there were still at least 100 people including lawmakers in the hallway behind my client,” Schamel said.
Still, Republican lawmakers want to know why SWAT team members standing behind Babbitt before she was shot were not more alarmed. “They were right next to her and saw no threat, certainly no lethal threat,” said GOP Rep. Paul Gosar, who sits on the House Oversight Committee.
He and other Republicans are demanding the Select Committee call the SWAT members to testify about what they heard and saw before the shooting.
“Why were there no warnings given or escalation of command and force in proper law enforcement technique?” Gosar asked.”
The only explanation that makes sense is that this was a Deep State execution, to give Trumpers an example of what they are prepared to do for their Leftist masters.
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