Judge allows DOJ to withhold potentially exculpatory evidence from January 6 defendants

Eliyahu Tulshinski

April 18, 2023

A Frontline Flash tweet informs readers that a federal judge has allowed federal prosecutors to withhold evidence from January 6th defendants when that evidence would be “too harmful” to the government. The tweet asks viewers to vote on whether protecting the government is within the judge's job description.

DC judge Christopher Cooper just ruled the DOJ can hide evidence from the jury that shows police intentionally harming a J6 protester with deadly force, because the video would be “too harmful to the US government”. Is it the judge’s job to shield govt misconduct from scrutiny?

Brady violation

The footage in question, according to the tweet, shows police intentionally harming a January 6th protester with deadly force. Such evidence would bolster defendants' claims that the government framed the defendants by employing a three-pronged strategy:

Instructing uniformed police to violate their protocol for handling protests and use excessive force against protestors.
Instructing other police officers to encourage protestors to enter restricted spaces.
Planting government agents, dressed as Trump supporters, to incite actual protestors to break the law, particularly in response to excessive violence employed by the police, by both using force against police and by trespassing.

Withholding information like video footage that would support these claims would violate the constitutional obligation on prosecutors to provide defendants with potentially exculpatory evidence. According to Cornell Law School's Legal Information Institute, the onus on prosecutors is wide-reaching and applies even when the defendant doesn't request the information:

The Brady rule, named after Brady v. Maryland, requires prosecutors to disclose material, exculpatory information in the government's possession to the defense. Brady material, or the evidence the prosecutor is required to disclose under this rule, includes any information favorable to the accused which may reduce a defendant's potential sentence, go against the credibility of an unfavorable witness, or otherwise allow a jury to infer against the defendant’s guilt. . . . [T]he prosecution has a constitutional duty to disclose all material, favorable information in their possession to defendants regardless of whether it is requested. [Emphasis added].

Violent police

Frontline Flash's tweet does not identify the defendant who was denied access to the government's video footage of police brutality against a January 6 protester, but does name the judge who blocked the defendant from gaining access to the potentially exculpatory evidence, in violation of the Brady rule, as Washington D.C. Judge Christopher Cooper. Cooper's notoriously biased behavior includes:

Handing AFLDS founder Dr. Simone Gold a harsh prison sentence after she refused his advances in law school and ignoring a mandatory requirement to recuse himself due to conflicts
Courtroom behavior leading to complaints of racism and misogyny
Applauding anti-free speech socialist defendants who disrupted SCOTUS
Lying about the events of January 6th

Bizarrely, according to the tweet, Cooper attempted to justify his failure to follow the Brady rule by stating that release of the video would be “too harmful to the US government” leading to question, “Is it the judge’s job to shield govt misconduct from scrutiny?” The poll, which closes on April 20th, has garnered more than 1100 votes at press time. If blocking evidence which is harmful to the government is indeed accepted by the appellate courts as a justification for withholding evidence, then a video of a defendant being tortured into a false confession could be withheld, as such a video would undoubtedly be harmful to the government, potentially leading to the jailing of government officials.

Cooper is correct, though, in noting that the video coverage would be harmful, as even the small amount of surveillance footage that has been released has raised doubts about the lawfulness of government actors, including this tweet of a video allegedly showing police beating protestor Roseanne Boyle, one of four protestors to lose their lives on January 6th.

Gateway Pundit quotes January 6 defendant Jonathan Mellis explaining how he's in jail for trying to protect Boyland.

There were four deaths on January 6. One of them is Roseanne Boyland. She is unique because there are over a dozen men who are facing many, many, many years in prison because we tried to help Roseanne Boyland. I’ve also been 25 months without a bond hearing. Also, I let them know that there is actual footage of me protecting an officer that day, Officer [Mike] Fanone, with many other men on January 6.

Friendly police

January 6 defendants consistently explained from the day of the protest that the behavior of some officers gave them the impression that the Capitol building was indeed open to the public that day. Government prosecutors urged jurors to ignore that claim as not credible, alleging that it was obvious that they knew they were trespassing (a required element of the crime of trespass), while at the same time withholding footage of police officers actually escorting protestors through the Capitol and holding doors open for them.

Tucker Carlson began showing some of the withheld footage until Senator Charles Schumer demanded he stop. The video he did release revealed what may be a grave violation of the Brady rule. According to a transcript of an interview with Albert Watkins, the attorney who represented Jacob Chansley, also known as the QAnon Shaman, the government damaged his client psychologically by withholding the evidence.

The government knew through three hearings when we begged and pleaded to get this man out of solitary confinement, literally falling into an abyss mentally, and through each of those three hearings, that government assistant US. Attorney knew the most important aspect of that hearing was that Jake was not violent. The government knew. They knew that Jake had walked around with all of these police officers. They had that video footage. I didn’t get it. It wasn’t disclosed to me. It wasn’t provided to me. I requested it. I filed the requisite pleadings for it. And whether I did or not, they had a duty, an absolute duty with zero discretion to provide it to me so that I could share it with my client. . . .

[I]t’s a tragedy. I mean, what’s happened is truly a dagger in the heart of our American justice system. We can’t allow it. . . . This is about our justice system being so compromised. The very integrity and core of that which we wore as a badge of honor for the entirety of our nation’s history has been rendered a vile, disgusting mess by a Department of Justice that was running [amok] and they didn’t share the video of my client.

In fact, a tweeted picture shows Chansley surrounded by no less than 11 officers.

Provocateurs

Gateway Pundit has compiled a list of “20 confirmed incidents and operations” in which dozens of federal agents and other government officials not only infiltrated the January 6 protest crowds but led the trespassing and incited lawlessness. The undercover agents included “agitators who were highly trained [and] ripped down fencing prior to the protest” and who were “urging protesters to climb scaffolding and move forward to the US Capitol!”

In fact, there were at least 40 such agents who infiltrated the January 6 protest, at least some provoking protestors to break the law.

Not just Democrat appointed judges

While Cooper was appointed by Barack Obama, Trump-appointed US District Judge Timothy Kelly has made headlines by allowing prosecutors to hide an extraordinary amount of potentially exculpatory evidence from the jury in the criminal trial of members of the Proud Boys group even after information about the evidence was accidentally leaked by an FBI agent. Signs of the Times reported that Kelly allowed the DOJ “to shield all that evidence from the jury with the sole exception of the agent discussing ‘edit[ing] out’ their presence from a [informant] report.” American Greatness senior writer Julie Kelly posted this summation on Twitter.

Please see our previous articles on selective prosecution