Posted by Curt on 19 March, 2023 at 9:22 am. 4 comments already!


by Shipwrecked

H/T on this story to @Julie_Kelly2 who sent me looking for a pleading yesterday from United States v. Pope that included an Declaration from Thomas DiBiasi, the General Counsel of the United States Capitol Police explaining the process for reviewing and disclosing to persons outside the Legislative Branch videos from CCTV system inside and outside the Capitol, and the House and Senate office buildings.
As you might have heard, I’ve got a passing interest in video from one or two of those cameras, and I’ve asked for some questions to be answered.



…The Declaration of Mr. DiBiasi was filed pursuant to an Order of the Court asking for an explanation regarding the circumstances by which Capitol CCTV video came to be viewed and later broadcast by Tucker Carlson when much of the video provided to Carlson had never been produced as discovery in the criminal cases related to the events of January 6. How was it exactly that Tucker Carlson was able to see thousands of hours of video surveillance footage prior to that video being provided to the attorney for defendants facing federal prison — or, like me, attorneys for defendants already in federal prison?
What is noteworthy about the affidavit is the extent to which Mr. DiBiasi explained that an USCP Assistant Police Chief has played “gate keeper” in determining what video evidence would be released into the judicial system for use by the prosecutors handling January 6 cases.
More troubling is the representation by him that he possessed some kind of “veto” power concerning what video evidence would be given over to defendants who were facing time in federal prison if convicted of the charges brought against him.

“… we were shown and had to approve of every clip before it was made public. This was followed in all cases by both the Select Committee and the prosecutors.”

I guarantee you there are no criminal defense attorneys in the January 6 cases who realized that the discovery consisting of video evidence required under Rule 16 was first processed through the filter of what the USCP approved for public release.
I suspect that until this Declaration was filed two days ago, the District Judges overseeing these cases were not aware of that fact either.
The level is his arrogance — as written by him and submitted to the Court by the DOJ — is frightening to anyone who thinks “due process” and a “fair trial” are important features of our criminal justice system.
Rule 16 of the Federal Rules of Criminal Procedure and Brady v. Maryland are the legal bases for the production of both information material to the preparation of a defense, as well as material that is favorable to a defendant.
With regard to “favorable material”, in Brady the Supreme Court used the term “suppression” with respect to what it prohibited in terms of conduct by the Government. But it made clear in subsequent decisions that “bad faith” by the Government isn’t required — “suppression” in the context of the case only means that he Government had the information and did not convey it to the defense early enough that it could be meaningfully utilized by the defense at trial or sentencing.
In cases involving “voluminous evidence,” many Courts have ruled that it is not enough for the government to just turn the evidence over to a defendant and say “It’s in there somewhere — good luck.” The “needle in a haystack” ploy doesn’t satisfy the Government’s obligation to “disclose” favorable information.
In another Supreme Court case, Kyles v. Whitley, the concept of “constructive knowledge” was applied to favorable material that is within the possession of the Government — whether the prosecution team is actually aware of it or not. This is an extension of the idea that “bad faith” withholding of the favorable material is NOT the standard. All that is necessary to establish a Brady violation is that the favorable material within the possession of the Government was not disclosed, and that if it had been produced a different outcome may have resulted.
This second issue is trickier as a “legal” hurdle than one might expect, and it is the hurdle that many Brady violations end up not being able to surmount in order to obtain a remedy.
Criminal prosecutions are not required to be perfect. Errors are made in almost every case — including errors that involve a failure to produce material favorable to the defense. I’m not going to get in the weeds here with a law school lecture on what kind of showing of prejudice is necessary to obtain relief for a Brady error. But, simply put, the error must have been significant enough that it fairly calls into question the legitimacy of the outcome of the case.
What the Dibiasi Declaration seems to establish as a factual matter — this is now the official position of the Government in all January 6 prosecutions — is that a potential obstacle to production of video evidence existed between delivery of the evidence to the Department of Justice and the receipt of that video by defendants and their attorneys.

Read more (The rest is behind a paywall but the 6 bucks a month goes to the J6 legal fund so well worth it. Consider subsribing)

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