Feds pressure Jan 6 defendants to falsely confess to ‘knowingly’ trespassing

• No one knows all 300,000 federal crimes
• Almost everyone unwittingly commits felonies every day
• Hardly any crimes involve assault or theft
• Ignorance of the law is an excuse for non-obvious crimes 
• Without a knowledge requirement, political opponents could be persecuted
• Supreme Court requires knowledge component for most crimes
• Trespass is a crime with a knowledge requirement
• Many Jan 6 defendants repeatedly asserted not knowing area was restricted
• Prosecutors demand confessions that contradict the evidence
• Use threats of potentially long jail sentences
• Teacher committed suicide after pressure to confess knowing area was restricted
• Only judge to accept lack of knowledge defense is Trump appointee

The legal maxim, “ignorance of the law is no excuse” works well with crimes against individuals, like assault and theft. Legal scholar and former Deputy Assistant Secretary for Policy in the Department of Homeland Security, Paul Rosenzweig, explains that one cannot claim, “I forgot we can’t steal,” because such crimes are,

“wrong in their essence,” or malum in se [and these] inherent wrongs put people on notice, in effect, that the criminal law might apply. 

When ignorance of the law is an excuse

The George Washington University Law School professor then distinguishes crimes against the government from such inherent wrongs:

But the rule that ignorance is no excuse does not work as well for crimes that are not inherently wrong. Today, there are thousands of crimes that are crimes only because they are prohibited by statute. For these types of crimes—known as “wrongs by prohibition,” or malum prohibitum the principle that ignorance of the law is no excuse works only when a person knows what the statute requires or, at a minimum, could have discovered what the statute requires with a reasonable amount of effort.

Read all 300,000 federal crimes?

Criminal law has changed drastically, with great bearing on the ignorance of the law defense:

The rule that “ignorance of the law is no excuse” was born at a time when there were fewer than a dozen common law felonies, and all those crimes stemmed from and mirrored a commonly shared moral code … 

no one even knows how many federal criminal laws there are, much less what they require. The last time the Congressional Research Service was asked to quantify the number of federal crimes, it told Congress that it could not do so with any certainty …

How could it possibly be so challenging to count the number of federal crimes? … 

federal crimes are scattered across almost all of the 51 titles of the [U.S.] Code, making it effectively impossible for an average citizen to find them all … 

One expert, Professor John Coffee of Columbia Law School, has estimated that there are more than 300,000 separate federal regulations that might be the basis for a criminal prosecution. [Emphases added].

Everyone a felon

In Three Felonies A Day: How the Feds Target the Innocent, Harvard Law School lecturer Harvey Silverglate, explains how the explosion in the number of acts outlawed by federal statute makes it possible to prosecute just about anyone the government wants.

The average professional in this country wakes up in the morning, goes to work, comes home, eats dinner, and then goes to sleep, unaware that he or she has likely committed several federal crimes that day … 

federal criminal laws have become dangerously disconnected from the English common law tradition …

prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior.

Intent entrenched as essential element in crime

Long before we reached 300,000 potential crimes, our highest court recognized the need to protect individuals who act without criminal intent. Rosenzweig quotes Supreme Court Justice and former U.S. Attorney General and chief prosecutor during the Nuremberg trials, Robert Jackson, who required just that in his 1952 landmark decision:

The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil. [Emphases added].

Protection from politicized prosecution

Justice Jackson went on to clarify the need to limit prosecutions to purposeful crimes.

A relation between some mental element and punishment for a harmful act is almost as instinctive as the child’s familiar exculpatory “But I didn’t mean to,” and has afforded the rational basis for a tardy and unfinished substitution of deterrence and reformation in place of retaliation and vengeance as the motivation for public prosecution. 

Unqualified acceptance of this doctrine by English common law was indicated by Blackstone’s sweeping statement that to constitute any crime there must first be a “vicious will.” [Emphases added].

“Knowingly” required

Rosenzweig concludes that Justice Jackson’s jurisprudence is expressed today with the requirement that crimes be proven to have been carried out “knowingly.”

The idea that ignorance of the law is no excuse is captured today in the doctrine of “scienter.” In general, an individual can be guilty of a criminal act only if he acts with a criminal intent, or scienter, to accomplish a criminal purpose. 

Under most statutes, to win a conviction, the government must prove beyond a reasonable doubt that the defendant acted “knowingly.”

“Knowingly” trespassing

Adhering to the standard set by Justice Jackson, the statute being used to prosecute hundreds of peaceful Jan 6 protestors, defines a trespasser as  one who, 

knowingly enters or remains in any restricted building or grounds without lawful authority to do so … 

the term “restricted buildings or grounds” means any posted, cordoned off, or otherwise restricted area … of a building or grounds so restricted in conjunction with an event designated as a special event of national significance … [emphases added].

Jan 6 protestors who didn’t “knowingly” trespass

Months after dismissing Jan 6 protestors as lying in claims by many of them to have had no idea that they weren’t allowed to be where they were, the DOJ made a startling admission. 

the Justice Department … admitted it possesses at least some images of police officers taking pictures with and fist-bumping Capitol rioters on Jan. 6 but has not given it to the defense … [Emphases added].

Federal prosecutors were thus clearly on notice there may be quite a bit of truth to claims by defendants to have been careful to walk within the Capitol’s velvet ropes, which appeared to demarcate the boundaries of the space open to the public, to have never seen a sign indicating the Capitol building was closed to the public, and to have watched police offices open doors for them, wave them in or stand by silently as they entered.

Politicized prosecutors cancel “knowingly”

Those protestors who committed assault or vandalized property may, of course, be charged with those very crimes. But how can hundreds of peaceful protestors be convicted of knowingly trespassing?

Like a party in commercial negotiations adding superfluous demands to intimidate others parties before appearing flexible by dropping those demands later on, prosecutors can add criminal charges, threatening defendants with years-long jail sentences before offering to “drop the other charges” in exchange for a confession. A confession which the federal prosecutors are well aware may be false.

Of course, prosecutors are not like commercial negotiators - the defendant is not free to walk away from a prosecution, the stakes include prison, and the DOJ boasts an unlimited budget to go with its exclusive access to certain surveillance footage and witness statements and its social media surveillance. 

Nonetheless, at the end of a Statement of Offense that the DOJ demands trespassers sign as part of a plea bargain on trespass charges, the prosecutors include this statement, even when defendants have made clear that the statement they’re signing is not true:

When the defendant entered the U.S. Capitol Building on January 6, it was a restricted building. The defendant knew at the time she entered the U.S. Capitol Building that she did not have lawful authority to enter the building.

Judge blasts prosecutors

Texas florist Jenny Cudd, for example, signed onto that very statement despite maintaining her innocence even after signing it, telling a probation officer she did not realize she was breaking the law when she entered the Capitol. Rather than drop the charges against Cudd, federal prosecutors asked the judge to treat her more harshly for saying she didn’t know she couldn’t be there! Her lawyer called that prosecutorial behavior “malicious.”

Judge Trevor McFadden refused prosecutors’ requests to jail Cudd, blasting them for trying to carry out "aggregate justice" by punishing her for violence committed by others and for treating her differently than Left wing protestors opposing the confirmation of Supreme Court Justice Brett Kavanaugh, telling prosecutors, 

It does feel like the government had two different standards here, and I can't abide by that.

One Jan 6 defendant who won’t be serving jail time

Matthew Perna, a 37-year-old from Pennsylvania who taught English overseas, spent only 20 minutes inside the Capitol building on January 6, but was pressured to sign a plea agreement admitting that he knowingly entered a restricted space, despite the fact that he entered through an open door, as his family reported in his obituary after he took his life under prosecutorial pressure:

Matt’s heart broke and his spirit died, and many people are responsible for the pain he endured … He entered the Capitol through a previously opened door (he did not break in as was reported), where he was ushered in by police. He didn't break, touch or steal anything. He did not harm anyone, as he stayed within the velvet ropes taking pictures. For this act he has been persecuted … [Emphases added].

Questionable agent report

Not only was the door open, but Perna, after immediately turning himself into the FBI after learning they were looking for him, clarified that he did not enter the Capitol voluntarily, as recorded by an unnamed FBI Special Agent in an extraordinarily contradictory affidavit:

PERNA indicated that he and a friend went to the top of the steps of the Capitol building’s west side and was surprised that the door was open. Two U.S. Capitol police officers were inside the door. PERNA claimed that he was pushed into the building by a crowd that had gathered behind him. PERNA claimed that it was not his intention to enter the Capitol …

Based on the foregoing, your affiant submits that there is probable cause to believe that PERNA violated 18 U.S.C. § 1752(a)(1) and (2), which makes it a crime to (1) knowingly enter or remain in any restricted building or grounds without lawful authority to do … [Emphases added].

That agent did not provide any evidence to justify his “belief” that a person entering a building through open doors, with police officers standing next to the doors and not objecting, and who stayed within the velvet ropes and left after just 20 minutes, nonetheless knew he was in a restricted space. 

Pressure

When the FBI interrogated Perna a second time, he admitted that, “at one point he become (sic) frustrated, and, using a metal pole, tapped on a window of the Capitol building.” That knock on the window did not break any glass but was sufficient evidence of violence to bring the weight of the DOJ down on Perna, who followed in the footsteps of others who clearly said they did not know they could not be in the Capitol and then signed a confession to the contrary:

The defendant knew at the time he entered the U.S. Capitol Building that he did not have permission to enter the building.

Message to other protestors

Federal prosecutors even boasted on their website about the extraordinary punishment faced by Perna for his 20 peaceful minutes in the Capitol, knowing the chilling effect this would have on others: 

[Perna] remained inside the building for approximately 20 minutes, in the Senate Wing Lobby. While there, he held a cellular device in his right hand and filmed and chanted with the crowd …

Perna pleaded guilty in the District of Columbia to an indictment that charged him with obstruction of Congress, a felony, and three related misdemeanor charges …

He faces up to 20 years in prison and a $250,000 fine on the felony charge and additional penalties on the misdemeanor offenses. 

Upping the pressure

Apparently 20 years turned out to be an insufficient sentence for 20 peaceful minutes, and the DOJ informed Perna that they planned to seek an even longer jail sentence based on “domestic terrorism deterrence.”

That was too much for Perna; as his obituary puts it:

the justice system killed his spirit and his zest for life. Matt was an amazing man! 

One Jan 6 defendant who stayed out of jail, and alive

Unable to persuade Matthew Martin to contradict his own statements and sign a confession that knowingly violated trespassing laws, federal prosecutors submitted a trial brief promising to “prove beyond a reasonable doubt” that,

The defendant joined the mob that entered the U.S. Capitol building on January 6, 2021. He entered the building after it had been breached, with knowledge that the breach had happened; he entered to join a crowd that was seeking to stop the certification of the Electoral College vote. And, after police entered the Capitol building’s Rotunda and began to clash with rioters, the defendant chose to join the crowd that faced down the police. [Emphasis added].

NPR reports that Federal Judge Trevor McFadden determined, after trial, that the government had proven none of its charges, acquitting the New Mexico man after finding that,

it was reasonable for Martin to believe that outnumbered police officers allowed him and others to enter the Capitol through the Rotunda doors on Jan. 6, 2021. The judge also said Martin's actions were "about as minimal and non-serious" as anyone who was at the Capitol that day…

“Nonsense” that police waved protestors in?

Martin stood by his story that a police officer actually waved him into the Capitol building despite allegations from prosecutors that his testimony was "nonsense." The judge didn’t think it was nonsense and pointed out that surveillance video,

shows two police officers standing near the Rotunda doors and allowing people to enter as Martin approached. One of the officers appeared to lean back before Martin placed a hand on the officer's shoulder as a possible sign of gratitude, the judge said.

McFadden described Martin's testimony as "largely credible." The judge said it was not unreasonable for him to believe that officers allowed him to enter the Capitol, even though alarms were blaring and broken glass was strewn about the floor. 

The judge said Martin appeared to be a "silent observer of the actions of others." McFadden didn't find any evidence that Martin intended to disrupt Congress from certifying President Joe Biden's electoral victory.

More acquittals to follow?

With Martin being the first Jan 6 defendant to testify at a trial, NPR conjectured that,

His acquittal could embolden others to gamble on a bench trial …

The reality, though, is revealed earlier in the piece by NPR: Judge McFadden, “was nominated by former President Donald Trump.” 

The fact that a defendant needs to inquire into the political history of the judge assigned to their case is itself proof of our broken, politicized system of justice, in which one can enter a public building through open doors, with no signs warning of trespass, and still fear prosecution, but only if their politics are of a certain affiliation and if those of the judge are of a certain, but opposite, affiliation.

Weaponized DOJ

Please see the official AFLDS press release on founder Dr. Simone Gold’s sentencing for Jan 6, as well as the previous articles in our series on the politicization of prosecution: 

FBI - No time to interview rape victims; plenty for Jan 6 trespass

Police chiefs discourage violent crime complaints to give appearance of reduced crime

Police plant drugs on minorities to meet arrest quotas

FBI fails to act on evidence of planned shootings

FBI/DOJ/Court jail Dr Simone Gold for trespass, politicizing medicine

Meet the judge sentencing January 6th attendees to prison

Will ‘Colbert 7’ get January 6 treatment?

Judge in Dr Gold case applauded anti-free speech socialists disrupting SCOTUS

Stephen Colbert explains why his staffers are not insurrectionists