Authored by Gary Bai via The Epoch Times (emphasis ours),
The Department of Justice’s (DOJ) latest objection to allegations that it suppressed evidence in its prosecution of Jan. 6 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, Jacob Chansley’s former attorney that negotiated the navy veteran’s 41-month sentencing agreement in 2021, told The Epoch Times on Tuesday, 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 Sunday court filing on another Jan. 6 defendant’s case, in which the government confronted, for the first time in court, the newly surfaced surveillance tapes of the Jan. 6, 2021, Capitol breach aired by Fox News’s Tucker Carlson Tonight show.
Among these tapes was a clip showing Chansley, unarmed, walking along with several Capitol Police officers who did not attempt to remove him from the Capitol building, which Carlson said showed that Chansley was less violent on Jan. 6 than described by the government.
Despite the video records of the navy veteran’s behaviour, 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 Sunday.
The answer to this debate is important because it shines a light on the government’s prosecutorial conduct in handling Jan. 6 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 Sunday, the DOJ said it provided the tapes 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 defendant currently on trial, which alleged that the tapes shown on Tucker Carlson show the government “withheld” evidence in prosecuting participants of the Jan. 6 Capitol breach.
“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 ‘suppress[ed] 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,” the DOJ wrote.
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, Jacob Chansley’s current counsel, said in an interview with The Epoch Times on Monday. “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.”
Shipley says that the government may have violated Brady because they did not identify the tapes and their nature as potentially exculpatory evidence during Chansley’s trial. Making them available without making sure the defendant knows of the existence of the tapes may constitute suppression, according to Shipley.
“Suppression simply means it went undiscovered by the defendant beyond a point at which it could be made use of,” Shipley, who was a federal prosecutor for 21 years, said. “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 tapes are relevant for reasons beyond proving Chansley’s innocence or guilt, Shipley told The Epoch Times, noting that they are important to answering 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 challenged.
“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,” the attorney added. Judge Royce Lamberth presided over Chansley’s trial.
“That might have caused Judge Lambert 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.
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