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In Jan 6 Case of Gieswein Proposal For Defense Database by Sept 16, DOJ Opposes

By Matthew Russell Lee, Patreon Podcast Song Filing
BBC - Guardian UK - Honduras - ESPN

FEDERAL COURT, August 26 -- After the DC Circuit's decision in US v. Munchel, DDC Judge Emmet G. Sullivan had before him on August 11 Capitol breach defendant Robert Gieswein.

An issue on August 1, as on August 10 in the Oath Keepers case, was when the Deloitte data base will be ready. Not before November 9, more likely January 2022, it had been said - then denied or dodged on August 10. On August 11 Judge Sullivan said he was acting on it, or would. Inner City Press live tweeted, here and below (Aug 10 podcast here)

  Now US has opposed the defense's proposal, following Judge Sullivan's August 11 oral rulings, that it provide a defense data base by September 16.

[Meanwhile, January 6 defendant Daniel Ray Caldwell on August 26 told DDC Judge Colleen Kollar-Kotelly there are only two laptops to review discovery in the DC jail, Inner City Press thread here] Aug 26 podcast here

The proposal:

"consistent with the Court’s oral order at the August 11, 2021 status hearing in this matter, it is hereby

ORDERED that, by September 16, 2021, the government shall have in place the contracts necessary to provide defendant’s counsel with 1) licensed access to a “wholly separate defense Relativity workspace” through which the government can share all discoverable documents, and which will have the other capabilities the government described in its Aug. 23 Mem. re Discovery, ECF No. 40, and 2) access to a “defense instance of” through which the government can share all discoverable digital media evidence, and which will have the other capabilities the government described in the same Memorandum, ECF No. 40; and it is

FURTHER ORDERED that, by September 16, 2021, the government shall have in place any other contracts necessary to ensure that the defense will be able to review discoverable evidence, analyze such evidence, and compartmentalize such evidence to the same extent that the government can; and it is

FURTHER ORDERED that, no later than September 16, the government shall file a status report regarding its progress toward complying with this Order, and its projections for when the defense in this case will actually be able to review all discoverable material in the defense Relativity workspace and the defense instance of referenced above."

Inner City Press, having to file superfluous applications for January 6 evidence / videos that DOJ refuses to provide it, but only others, has published the proposed order on its DocumentCloud here.

Previously (August 11)  Judge Emmet G. Sullivan is told that DOJ cannot put any date on when discovery will be available. (Contrary to what Judge Mehta was told earlier in the week).

Judge Sullivan: I'm going to toll the Speedy Trial Act clock. I have in mind a January trial date. But if Mr. Gieswein does not have access to the discovery, he will be prejudiced. I don't want to be arbitrary. I want to be realistic.

 Judge Sullivan: I like to throw my thoughts out there so people can respond to it. I'm thinking of ordering the government to fund a company or an entity to make the discovery available. In 30 days. Or I'll consider sanctioning the government.

 Judge Sullivan: We have COVID, Delta and Lamberth, I mean Lambda. Can a judge order jurors to be vaccinated? I'll just posit, or I won't - to what order can the government or a judge order someone to get a vaccine? I'm intending to set a trial date today.

 Assistant US Attorney: Our contract with Deloitte allows us to provide info. We've been talking with nationwide discovery coordinators A.J. Kramer and Sean Broderick and Chief Judge Howell. [Are those communications public?]

Note: Intentionally or not, Chief Judge Howell's standing orders instead of making DOJ videos available to the public gave them only to a few. Inner City Press pushed for weeks to get any of them, and still doesn't have Harrelson, letter

Judge Sullivan: These are cases instigated by the government - no, I'm not going to that in the order. Maybe in a footnote. (Laughs). I feel I have to do something.

AUSA: Please keep it general. We are trying to work with FPD, we are collaborating. AUSA: We can't just hit "Copy." It is complex. It's going to take some time to do it right.

[How long? This week Judge Mehta was told that DOJ hadn't said, not until November or January. But they had, in Hale-Cusanelli and other cases

AUSA: We need time to get everyone where they need to be. Defense: I don't want the goal of efficient production to 500 people to get in the way of my client. Judge Sullivan: This is not a class actions. No one has asked me for that. [So, should someone?]

 Judge Sullivan: I'm talking myself out of a January trial date. Defense: We want a trial date. I'm on a murder trial in December. We'd like week of Jan 24 or Feb 14. Judge Sullivan: Week of Feb 14. Let's block it off. Jury selection, nothing goes well on Monday.

 Judge Sullivan: Let's do voir dire Feb 15. I don't know if it'll have to be in the ceremonial courtroom. No one knows. Usually I set a deadline for motions. But maybe I won't here. A status in 30 days. Or 45, since I'm giving the US 30 to do something

 AUSA: Time gets tolled under 3161(h)(1)(c) Gieswein starts speaking and Sullivan stops him, says "I don't want to see you say something you shouldn't, like apologize. Do you want to go into a break out room?"

Defense: Let's. Judge Sullivan: You're not bashful  [Gieswein and his counsel have done into a break out room.

They're back. Defense: Can the court restate what it is thinking of ordering the US to do? Judge Sullivan: I'm not going to do that. I'm going to issue an order. Why don't you tell me what you want. Defense: Access to what the US has. The Deloitte data base.

 Gieswein's lawyer: I cannot tolerate the idea of waiting more time for having things redacted. Judge Sullivan: How would that work? They just open their files? Defense: Essentially. A mirror of their data base.

 AUSA: This seems like an oral motion for discovery. Judge Sullivan: It tolls the Speedy Trial clock. You should meet and confer. AUSA 2: So do we have to reply to the oral motion? Can you have counsel reduce her motion to writing? Judge Sullivan: Since it's tolled

 Judge Sullivan: The US has an entity compiling and analyzing discovery. The order will give 30 days without getting into minutia.  Defense: They should make it available in 30 days.  Judge Sullivan: Let's pick a date in 30 days.  Voice: Sept 16 at 3. Judge: Fine

 Voice: Religious holiday. Judge Sullivan: So Sept 17, 4 pm. Here are the reasons to toll Speedy Trial until then: this is the most complex case this Court has seen. Footage from C-SPAN and other members of the press. Body worn...

Judge Sullivan: That a defendant is detained is not dispositive. This delay is less than others the DC Circuit has upheld. If I need to write on this, I will. 

AUSA: Give us another day to file.

Judge Sullivan: OK. 5 pm tomorrow. Adjourned

On August 5, Inner City Press filed a letter and motion with Judge Mehta, now on its DocumentCloud here. An excerpt:

"Re: PUBLIC Access to videos (judicial documents) in US v. Harrelson, 21-cr-00028-APM-10 Dear Judge Mehta:    This is a request for access to videos used as judicial documents in the above captioned case, which I have been reporting on for Inner City Press. Before this submission I asked DOJ for access to the videos, citing your July 13 minute order.... I have today been told that DOJ interprets your Order as ONLY requiring or even allowing them to release these judicial documents to some, and not others. This seems absurd, given the case law about the availability of judicial documents to the public, not to a subset thereof.    I understand that DOJ has interpreted a number of DDC orders in the January 6 cases in this restrictive way - this should be addressed more broadly, but in this Harrelson case, this is a request that you address the issue of whether the judicial documents should be made available to the public, or only a subset (and if so, why). I have also written to you on USA v. Schwartz, 21-cr-178 (APM), on June 24 (no response). If necessary, to expedite things (Inner City Press is reporting on this case today) APPLICATION FOR ACCESS TO VIDEO EXHIBITS."

Similarly, Inner City Press asked DOJ and then Judge Timothy Kelly for access to the videos that DOJ had shown to the court in the case: judicial documents that, under case law, must be made available to the public. But it was denied access, on the theory that Judge Kelly's order earlier in the month limited access to these judicial documents to a particular sub-set of the public.

 Inner City Press on July 27 wrote to Judge Kelly, including in the form of a motion, now on DocumentCloud, here. By noon the next day, July 28, nothing - no responses, no response. We'll have more on this. For now, podcast here; music video here.

Inner City Press live tweeted Riley June Williams on January 25, here. 

  From January 22, song here: Thread here.

 Inner City Press' John Earle Sullivan song on SoundCloud here. 


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