A struggle to manage huge amounts of video evidence is delaying hundreds of Jan. 6 Capitol breach cases as many of more than 500 people charged now wait for U.S. prosecutors to produce records that could help defendants decide whether to face trial or plead guilty.
And though the government has shared clips of U.S. Capitol surveillance and officer body-camera footage, it has yet to release comprehensive video of the entire event that might reveal mitigating or exonerating conduct that day, such as whether a person helped maintain order at other times, or what police or others nearby were doing, prosecutors and defense lawyers have said.
Partly as a result, only a trickle of suspects — about 20 out of more than 500 charged so far — have pleaded guilty.
Now, U.S. officials say that organizing and transferring the mountain of data in what the Justice Department calls the largest criminal investigation in U.S. history is likely to cost tens of millions of dollars. Prosecutors say they hope to be able to turn over the bulk of 16,000 hours of Capitol and police footage to defendants beginning in August, and by fall to begin producing individually relevant returns from more than 6,000 grand jury subpoenas and more than 2,000 recovered smartphones, computers and other devices. They have also collected more than 300,000 public tips, including potential misidentifications that defendants might want to investigate.
The defense bar, organized by the Office of the Federal Public Defender in Washington, D.C., had hoped to rely on the government’s data system. But it learned last month that — for what prosecutors called “contractual and technical reasons” — it would have to select its own vendor and build a system to receive the data, requiring additional time.
In a further setback, a federal judge ruled Friday that prosecutors cannot share secret grand jury evidence with its contractor, undermining an effort they called “a practical necessity” and forcing investigators to go case-by-case through such material.
The timetable means that even jailed individuals at top priority are unlikely to go to trial before January or even next spring, with trials likely to start well into 2022 and continue in 2023, lawyers familiar with the investigation say.
Nearly, but not all, defendants are accepting delays so far, finding it to be in their interest. Judges up until now have also found that waiting for the government to dig through a mass of data serves justice and the public interest — but with diminishing patience.
On Tuesday, defense attorney Stanley Woodward warned a judge that if the government planned to “dump” thousands of hours of video at once, it could “take years” for attorneys like him to review and get ready for trial. Woodward asked for a trial date no sooner than September 2022 for Federico Guillermo Klein, a Trump State Department appointee who has pleaded not guilty to civil disorder and obstructing Congress.
U.S. District Judge John D. Bates agreed, warning prosecutors to keep the court advised on discovery challenges “so that individual judges don’t start going on the warpath.”
“I don’t want to jump the gun and start managing this … but it is in no one’s interests to be in the dark and sort of be struggling with this,” Bates said.
U.S. District Judge Royce C. Lamberth said Tuesday in another Capitol hearing that rushing to court could prevent defendants from learning about potentially helpful evidence and arguing for more generous plea deals or sentences.
“Good defense lawyers know that pushing for early trial dates may get them what they ask for, but not what they ultimately want in the long run,” he said.
Prosecutors have telegraphed slowdowns in cases for months. The government has never faced a discovery burden like this in history, prosecutors have said, even as it has the constitutional duty to look for and turn over exculpatory evidence if it exists — something that is not knowable until all video is compiled, reviewed, tagged and redacted as needed.
“Nothing is going to be dumped on anyone … We know that would be insane,” Assistant U.S. Attorney Jocelyn Bond said Tuesday in Klein’s case. “Obviously, we know we need to make it reasonable.”
Asked if the government would enable defendants to search through evidence using facial recognition software, Bond said she did not know the details but acknowledged the government was working to make video searchable for individual defendants.
The behind-the-scenes technological challenges in Capitol riot cases have increasingly spilled into the open. The Justice Department last Thursday began disclosing in court filings that it had contracted with a vendor in late May to build a mammoth, “master evidence tracker” and database.
The department awarded Deloitte Financial Advisory Services the first $6.1 million of up to $25.9 million for services through May 2022, with possible extensions, through the U.S. attorney’s office spearheading the Capitol investigation in Washington, federal procurement records show.
The government on June 30 also asked Chief U.S. District Judge Beryl A. Howell in a sealed motion to waive usual secrecy requirements to share all grand jury subpoenas and documents with its vendor.
“The investigation and prosecution of the Capitol Breach will be the largest in American history, both in terms of the number of defendants prosecuted and the nature and volume of the evidence,” the Justice Department wrote in a filing Monday that was later cited by Howell.
On Friday, Howell ruled that grand jury secrecy rules limiting disclosure to government employees “cannot be stretched to include a private contractor such as Deloitte, no matter how compelling the need.” The judge also said that prosecutors failed to establish a “particularized need” to share sensitive investigative materials about hundreds of charged individuals and countless uncharged or exonerated people in a single court order.
“Here, the threat to grand jury secrecy posed by blanket disclosure to Deloitte is pronounced and cannot be outweighed by mere expediency,” Howell wrote. She said the sweeping scope of the government’s request was “tailored not to avoiding injustice, but rather to minimizing the government’s discovery burden,” which it must satisfy regardless.
The Justice Department and U.S. attorney’s office declined to comment for this story beyond statements or filings made in court, saying, “We are reviewing the opinion and have no comment at this time.”
The federal defender’s office and U.S. District Court also had no comment.
Whether the government appeals the ruling or finds workarounds to it, further delay appears inevitable.
If they succeed, independent electronic evidence consultant Tom O’Connor, who has performed pro bono work on a variety of cases over the past 15 years for the Office of the Federal Public Defender, said the Capitol riot investigation could be a watershed event for the evidentiary use of technology in criminal cases, much as the 1995 Oklahoma City federal building bombing transformed government physical security practices.
“I know no one who doesn’t believe this is going to be the largest amount of data ever in a criminal prosecution,” O’Connor said, calling the number of defendants and amount and diversity of electronically stored information devices, file types and visual data “a Tower of Babel nightmare.”
The government has pledged to try to compare each defendant against 237,000 digital tips, 1 million Parler videos and images comprising 40 terabytes of data scraped from the Internet — roughly equivalent to 10 million photos, 20,000 hours of video, or 50,000 filing cabinets of paper documents. It also said it will vet defendant information against cell tower data for thousands of electronic devices that connected to the Capitol’s interior distributed antenna system. The government obtained that information from three major telephone companies, as well as location history data from sources such as Google and 10 data aggregation companies.
Prosecutors also promised to regularly search the ever-growing inventory of video footage against known images of defendants.
Getting the data to 200 attorneys representing clients nationwide — including some who are jailed with little or no computer access — is another daunting task, and the search for a vendor and a plan to share costs and oversight is just getting underway.
The defense cost is likely to be even higher than the prosecution’s because of the duplication involved. About half the attorneys are federal defenders or court-appointed counsel for indigent clients, and their expenses require court approval. The rest are private counsel.
Defendants have made blanket requests for evidence, including video from any private or public source, material from 240,000 FBI investigative memos and attachments such as photos, documents, sketches, diagrams, maps, and exhibits, the government said.
Arizona defendant Jacob Anthony Chansley, 33, has asked for access all video footage in the investigation. Often called the “QAnon Shaman” after he was photographed shirtless wearing horns, a fur-lined headdress and face paint in the Capitol, Chansley through his attorney asserted that “the government is not capable of vetting, cataloguing and determining” its importance for timely disclosure. He has pleaded not guilty to obstructing Congress.
Several defendants asked for information as to whether police or Capitol employees allowed any protesters into the building.
And the challenge continues to grow.
“As the Capitol Breach investigation is still on-going, the government anticipates that the number of cases presented to the grand jury and the number of subpoenas for documents will only continue to grow,” Capitol breach discovery coordinator Assistant U.S. Attorney Emily A. Miller wrote in the grand jury motion unsealed Tuesday.
Before awarding Deloitte and four other companies a $1.5 billion multiyear, follow-on contract for “automated litigation support” in December, the Justice Department gave a glimpse of the task confronting the contractor in setting requirements for small, medium, large and “mammoth” investigations.
The Capitol probe falls between large and mammoth. In a 2019 bid solicitation, the “large” scenario posed a hypothetical nationwide financial fraud probe, requiring a staff of 50 and a database that could manage 1 million documents for five trials over two years.
The “mammoth” plan proposed a $50 billion whistleblower-type government recovery probe involving 30 corporations, 10 investigations, 20 law firms and a “punishingly fast schedule” with five cases starting trial in one year requiring 350 trained employees.
In the Capitol cases, prosecutors wrote to defendants this week explaining delays to them as well as judges, saying “acting with speed and diligence, the government needs time to carry out our discovery obligations in a careful and complete manner, and the defense needs a way to receive and review the materials.”
O’Connor, the evidence consultant, cautioned that $20 million per side could be a floor for costs.
“It presents a challenge, but it also provides a great opportunity to finally use technology in a way it should be used” to increase efficiency and lower costs, he said, “but it remains to be seen if that will happen.”