Prosecutors working on the Capitol riot cases got a plum assignment. Of course, that’s a lot of work on the front-end, sifting through gigabytes of footage and video evidence. But it’s not like they spend time looking for dead ends or locating missing witnesses. Almost any digital image they look at is useful for their business against rioters. The challenge is more to organize all the overwhelming evidence, not to find it. And the best for these attorneys? Much of the incriminating evidence has come from the rioters themselves – and continues to pour in.
They used selfie sticks to post their driving on social media, or at least send it to friends (in one case, to a federal agent – oops).
On Tuesday, Dona Sue Bissey was sentenced to 14 days in prison after writing that January 6 was the “best day ever” in a Facebook post. In July, Paul Hodgkins was sentenced to eight months in prison after images showed him on the Senate floor. And Brandon Fellows, a 27-year-old Capitol Hill protester who represents himself in court, inadvertently admitted to committing other crimes during a bail hearing this week.
Masters criminals that these accused of the insurrection are not. Anyone who grew up watching mob movies from the 70s, 80s and 90s would be hard-pressed to imagine the gangster characters from “The Godfather” or “Goodfellas” posting videos of their heists on Instagram or making TikToks heists. Bank. Much longer ago, before the Internet was even invented, insurgents in other countries wore balaclavas to hide their faces.
Not the Capitol rioters. They used selfie sticks to post their driving on social media, or at least send it to friends (in one case, to a federal agent – oops). In doing so, they also unintentionally added everyone to the background of their police net shooting.
For federal prosecutors, sorting through all this material is like rummaging through treasure chests for evidence. This is not just an opportunity to advance their careers at the Department of Justice; it’s a chance to be a part of American history, without the enormous dangers associated with the attempted Mafia conviction – or the risk of an OJ Simpson acquittal.
Indeed, there is not much defense lawyers can do to oppose it. Many, if not most, of these defendants may be eligible to be represented by a public defender. But with so many defendants involved in the same incident, the public defender often has conflicts to represent them all because they can point the finger at each other. Thus, some defense attorneys are appointed from what is known as the Criminal Justice Law Expert Panel – private volunteer lawyers blindly appointed by the court who accept the government’s minimum hourly rate. .
However, many of these defense lawyers are relegated to coaching instead of participating. This is because some of these defendants have chosen to forgo defense lawyers and proceed pro se – represent themselves – in court.
Pro-accused occupy a sacred place in our Constitution. In 1961, Clarence Earl Gideon was charged with breaking into a pool hall and stealing $ 5 in change and a few bottles of beer and soda. He was refused a court-appointed lawyer because at the time the state did not have to provide it, and he was sentenced. In 1962, he submitted a handwritten pro se motion to the United States Supreme Court. The court ruled that the 14th Amendment required “the assistance of a lawyer is a fundamental right essential to a fair trial”. This became the famous case of Gideon v. Wainwright and the basis of the film “Gideon’s Trumpet”.
Judges will publicly declare that defendants have a fundamental right to prosecute in a criminal case. But in private, if these judges are honest, they’ll likely say the pro defendants have turned out to be an absolute disaster of circus proportions. A judge will warn a defendant about this, and then, if the defendant persists, at least try to appoint a lawyer to advise the defendant. Being appointed to an unreasonable client can be a nightmare for a lawyer. But, when only advising, the lawyer is instead paid to be a frontline spectator of the chaos.
Fellows is a perfect example. Although the judge warned him at the start of the hearing that anything he might say could harm his case, he still continued to incriminate himself. If a prosecutor wishes to prosecute the crimes Fellows raised at their hearing, the whole investigation could be to order the court reporter for the transcript, perhaps accompanied by a thank you to Fellows himself. Even he admitted “it was a stupid decision” to proceed pro se.
Brian Mock is another. He is accused of pushing two police officers to the ground during the riot. Mock reportedly wrote on Facebook about his attempt to overthrow the US government. While Mock’s target audience are not federal prosecutors, they ultimately enjoyed the post, along with countless posts from other defendants on Capitol Hill.
As is often the case with pro defendants, Mock initially claimed that his public defender was not representing him properly. He told the court that he wanted to represent himself; he had a plan to prove misconduct and the FBI plot in his defense. While his conversations with his public defender are privileged, it’s a safe bet that the appointed lawyer refused to be part of this defense – leaving Mock to himself if he wanted to make his point.
Pauline Bauer is another classic pro accused. She is accused of simply being part of the crowd on Capitol Hill, of not committing violence. Yet she has been in custody because she refused to comply with the conditions of the interim release – rejecting the judge’s request to check in with her conditioner once a week. She filed an absurd 114-page “motion” kept on the electronic case filing system for eternity.
Prosecutors get a little nervous about pro defendants, primarily because the irregularities they cause can create issues that can be appealed. An appeals court could then overturn a conviction because the chaos at the trial violated certain rights of the accused.
As for the accused pro themselves, is it Clarence Gideon? Do they follow in the footsteps of the darling pro accused who single-handedly extended the scope of the 14th Amendment to all accused who followed it? Probably not. In theory, they have the potential to change the legal system forever, but they are more likely to simply mess up the system while preventing the most likely outcome: a conviction.