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Capitol riot cases strain court system

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The Justice Department and the courts are going to extraordinary lengths to prosecute and process hundreds of people who allegedly breached the Capitol on Jan. 6.


When a top federal judge in Washington, D.C., convened court on a recent morning in one of the hundreds of cases stemming from the storming of the Capitol, it was pitch black outside of prosecutor Adam Alexander’s windows.

“What time is it in Alaska?” Chief U.S. District Court Judge Beryl Howell asked.

“It is 5:03 a.m. in the morning,” the Anchorage-based assistant U.S. attorney replied cheerfully via Zoom.

Although he was 3,300 miles away and dawn had yet to break, Alexander was on hand for the arraignment of James Mels, a Michigan man charged with breaching the Capitol in what he said was an attempt to protest certification of the presidential election results and share his copy of the Constitution with police.

“Wow,” Howell said, acknowledging the unusual long-distance arrangement. Next time, she said, “plead your need for sleep and remind me you’re in Alaska.”

The transcontinental hearing — with the prosecutor in Alaska, the defendant in Michigan and other participants in the D.C. area — underscored the extraordinary lengths to which the Justice Department and courts are going to prosecute and process hundreds of people accused of storming the Capitol on Jan. 6. With the D.C.-based team of federal prosecutors stretched thin, the Justice Department has called in a cavalry of far-flung reinforcements.

A POLITICO review of the more than 250 (and climbing) cases related to the Capitol breach shows that federal prosecutors from Fort Lauderdale to Wichita to San Francisco have heeded that call. So far, over 30 cases are assigned to attorneys who appear to be outside the staff of the U.S. Attorney’s Office in Washington as it tackles what may be the most sprawling prosecution in U.S. history related to a single event.

For context: the office’s 2021 criminal caseload includes fewer than 20 federal prosecutions that aren’t connected to the Capitol assault.



The ever-expanding probe, which President Joe Biden’s incoming attorney general Merrick Garland has called his top immediate priority, has increasingly strained the justice system and required extraordinary measures to churn through a growing roster of cases. Dozens are simple trespassing cases, but others allege brutal assaults on Capitol police officers while a mob loyal to former President Donald Trump overran Congress and forced a delay in the formal counting of electoral votes. Hundreds more cases are expected to land on the docket in the next few weeks and months.

The number of cases assigned to prosecutors outside the ranks of the D.C. U.S. Attorney’s office is modest but is growing steadily as more and more suspects are identified — typically from a combination of videos taken from social media, surveillance cameras or body-worn cameras and tips from the public.

Some prosecutors, such as Kansas-based Mona Furst, New Orleans-based Brittany Reed and Massachusetts-based Lucy Sun, have been assigned to multiple cases. In the last week alone, San Francisco prosecutor April Loeb, Laredo prosecutor Graciela Lindberg and Utah prosecutor Jacob Strain have been added to new cases.

“The Department is committed to ensuring all necessary resources are available to investigate and prosecute the cases related to the January 6th Capitol breach, including assigning additional prosecutors from other districts to assist,” a Justice Department spokesperson said.

The review also revealed the extent to which prosecutors in the Washington, D.C., office of the U.S. attorney have been spread thin. Several, such as Christopher Berridge, Kevin Birney, Mary Dohrmann, Troy Edwards, Jr., Kimberly Paschall and Ahmed Baset, have been assigned seven or more Capitol riot cases. And prosecutors from across virtually every part of that office, from narcotics to violent crime to civil rights to national security, have been pulled into the mix.

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Notably, prosecutor Puja Bhatia, a D.C. homicide specialist, has been assigned to a single Capitol riot prosecution: Daniel Caldwell, who has been charged for allegedly assaulting police with a chemical irritant. It’s unclear if this assignment signals more serious charges to come in Caldwell’s case.

The huge surge in cases stemming from the takeover of Congress two months ago has also put unprecedented pressures on the court Howell presides over, which sits at the foot of Capitol Hill, within view of the crime scene.

The U.S. District Court in Washington typically has a moderate criminal caseload that lags behind big-city federal courts in places like Manhattan, South Florida and Los Angeles and far behind the busiest courts: those along the Mexican border that see thousands of cases charging undocumented immigrants with illegal entry.

In all of last year, the D.C. federal court recorded 290 cases in its criminal docket for major crimes. So far this year, 199 such cases have been filed — nearly all of them against alleged Capitol rioters. The magistrate’s docket, which records less-serious cases and the early stages of many more serious ones, now stands at nearly 300. With almost nine months to go, it already outstrips the 261 filed last year.

Cases are piling up

How big will the wave of cases get? Officials estimate about 800 people entered the Capitol during the riot. All seem likely to face charges if the FBI can identify them, a task it makes progress on each week. And some people who clashed with police but never entered the building are also facing charges.

The court has scrambled to respond to the onslaught. During the early weeks following the riot, when the daily court docket grew too long to process the incoming arrestees, one of the court’s three permanent magistrate judges was assigned to back up the magistrate on criminal duty for the month.

Behind the scenes, the third magistrate judge has been working on the hundreds of search warrants, and similar Capitol riot prosecutors have requested social media and cell phone data.

And as the ensuing criminal cases are being parceled out to the court’s Senate-confirmed judges, the court’s six active senior judges (who can limit their caseloads) have agreed to help manage the surge by taking a full share of criminal cases doled out by the clerk’s office, a court spokesperson confirmed.

For the moment, though, the criminal cases related to the storming of the Capitol are piling up.

One big hitch: prosecutors aren’t offering plea deals to any of the more than 300 defendants yet, out of fear evidence might emerge that shows them to be more culpable than initially thought. That leaves virtually all the cases essentially frozen for now, even though the video evidence against many defendants is overwhelming.


Another sticking point: prosecutors won’t give defense lawyers access to the bulk of the thousands of hours of videos and other evidence in the cases until an agreement known as a protective order is in place to limit those attorneys and their clients from making the material public. Congress has also put special limits on disclosure of some of its records.

The U.S. Attorney’s office and the D.C. federal defender’s office have been trying to hash out a model order judges could adopt, but the process has proven complex.

At a hearing last week, Howell said she hoped such an agreement would be ready soon, but Assistant Federal Public Defender Cara Halverson was not upbeat.

“There were many, many objections from my office that went back to the U.S. Attorney’s office,” Halverson said, saying she couldn’t predict when the process would be complete. “When you have so many lawyers involved, I’m not as optimistic that this is going to be solved in a timely manner. I think this is something that is going to go on for at least a couple weeks.”

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Howell sounded disappointed, but also had to grapple with another complication: with the cases being handled by 21 different district judges and three magistrate judges, there is no way for one judge to compel another to agree to a particular protective order.

“It could be complicated. Each judge could decide,” the chief judge said. “That sounds like a little bit of a nightmare for both the U.S. Attorney’s Office and the defense bar, but if it comes to that, it comes to that.”

Coronavirus complications

When the cases are ready to move forward, a new challenge will emerge: The coronavirus pandemic has halted trials at the court for about a year. When that ban finally lifts, defendants who have been waiting for trials since before the pandemic broke out are likely to get priority over recently charged riot cases.

Howell issued an order Friday that allows trials to resume as soon as next week, under sharp limits. To allow social distancing, jury selection for one case will use three or more courtrooms. Only one case will be in jury selection on any day. The court will have no more than three trials running at once — each on a different floor.

Defendants and witnesses will be given clear masks so jurors can get a better look at their faces. And bench conferences, which in normal times involve lawyers, the judge and court reporter huddled closely together, will be discouraged.

“The emphasis will continue to be on holding wholly remote proceedings until more people get vaccinated,” the chief judge said during a hearing Friday.

There are factors easing the burden on the court. With so many prosecutors working on the riot, the volume of other cases — like drug and gun arrests — has dropped. In some respects, the pandemic has also lessened impacts of the riot-related crunch.

The fact that court hearings have been almost entirely virtual for the last year or so means prosecutors based far from Washington can beam into town without leaving their offices or in some cases their homes. The government isn’t running up airline and hotel bills by sending additional prosecutors to the capital.

And many defendants the government would prefer to keep far away from Washington don’t need to come here, at least as long as special coronavirus-related rules allowing remote criminal hearings remain in place.



The alleged Capitol rioters who’ve been locked up pending their trials or pleas don’t really have a choice regarding their whereabouts. Some arrested in jurisdictions outside Washington have encountered unexplained delays that prompted judges to express concern that some suspects being held in custody are falling through the cracks.

On Monday, the newest magistrate judge in Washington, Zia Faruqui, apologized profusely to a man who went almost three weeks without a judge determining whether he needed to be kept behind bars as he awaits trial.

Jonathan Mellis, 34, was arrested by the FBI at his home in Williamsburg, Va., on Feb. 16. The criminal complaint alleges he swung a stick at police during the Capitol riot and appeared to be trying to bash officers in the neck at a weak spot between their helmets and their body armor.

Mellis appeared via Zoom in federal court in Norfolk on the day of his arrest and had another hearing set there three days later on the issue of whether he should be released. Mellis opted to have that hearing in D.C., apparently after being told it would only take a few days for him to be transferred to Washington — about a three-hour drive to the north.

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Instead, it took 17 days for the prisoner to appear in court again. At an appearance Monday afternoon, Faruqui said Mellis had only surfaced after he contacted his family and eventually the D.C. court began to investigate.

“We were just concerned he was lost,” the magistrate said.

Faruqui was, in his words, “extremely upset.” The judge even uttered mild vulgarities from the bench on at least three occasions, speaking at one point of the need to figure out “what the hell is going on with [Mellis’] case.”

One man facing only misdemeanor charges from the Capitol breach, Eduardo Gonzalez, was arrested Feb. 9 in southern Virginia. Three days later, a magistrate judge in Norfolk ordered him detained pending trial. He hasn’t appeared in court since. Records show Gonzalez has been at the Western Tidewater Regional Jail for more than a month.

On Monday, Gonzalez’s lawyer filed a motion seeking his client’s release. No hearing has yet been scheduled.

In response to requests from prosecutors, Howell initially issued a series of orders to transport defendants from districts hundreds or thousands of miles away to Washington, even though magistrate judges near to the suspects’ homes had ordered them released. However, those transfers wound up taking weeks or more due to a combination of factors including Covid-19 protocols and even bad weather.


In one case, that of Beverly Hills nail salon operator Gina Bisignano, the Marshals Service misplaced or ignored the transfer order, according to a prosecutor. As a result, although a magistrate had ordered Bisignano’s release, she sat in a federal detention center in Los Angeles for at least 16 days.

Although prosecutors initially insisted it would be illegal for the bail appeal hearings to take place with the defendants in their home districts rather than Washington, Howell and other judges eventually started doing the hearings for the defendants remotely, wherever they were.

At a hearing Feb. 23 for Proud Boys member William Chrestman, Howell said transportation delays led her to stop ordering defendants moved to D.C. before reviewing their bond status.

“I’m doing these remotely rather than waiting for the transport to get them here because I think the defendant is entitled to a prompt resolution and review of that,” the judge said.

Bisignano finally had her hearing Feb. 26 when she was in an Oklahoma jail after being bused roughly halfway across the United States. A judge ordered her release, raising questions of how she’d get home to Los Angeles with no ID and no money.

Faruqui, the magistrate judge, said Tuesday he’s committed to getting to the bottom of the delays.

“The buck has got to stop somewhere and it stops with the judges because that’s our job to keep the system moving….It’s just not acceptable,” he said. “The Marshals Service have an incredibly difficult task, but fairness and due process trump anything else.…We cannot have a defendant waiting weeks.”

Faruqui, who joined the court in September after nine years in the D.C. U.S. Attorney’s office, told Mellis he might have legal recourse over the lost time.

“I cannot apologize enough. It’s my fault — my case,” he told Mellis. “Whatever little solace it is, we are going to figure out what happened and ensure it doesn’t happen to somebody else.”

Source: Politics, Policy, Political News Top Stories https://www.politico.com/news/2021/03/10/capitol-riot-court-cases-475081

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