In a sign of the hurdles facing the government, a judge on Friday ordered the release on bond of one of the highest-profile defendants, saying he did not see evidence that Thomas E. Caldwell of Virginia entered the Capitol or “that he was planning to do so that day.”
Charges have been brought against 312 people and are expected against at least 100 more, according to court officials and prosecutors.
Investigators have executed more than 900 electronic and physical search warrants, and amassed more than 15,000 hours of law enforcement surveillance and body-camera video, 1,600 electronic devices and 210,000 tips, prosecutors said.
With the volume of cases and evidence only growing, “the unusual complexity of the Capitol Attack investigation warrants” postponement, Assistant U.S. Attorney Kathryn L. Rakoczy and others wrote in a filing Friday involving “key figure” Caldwell, who is charged with eight other alleged associates of the right-wing, anti-government Oath Keepers group.
Moving too fast will make prosecution “impossible, or result in a miscarriage of justice,” Rakoczy said.
The assertions come as the probe presents a historic test for prosecutors, defense attorneys and the courts, stretching resources, threatening defendants’ constitutional rights to a speedy trial and posing strategic challenges for investigators as they rush to learn as much as possible before cutting deals with defendants.
The riots that led to five deaths, assaults on about 140 police officers and the evacuation of Congress as it convened to confirm the 2020 presidential election results have already generated about as many federal criminal cases in a single event than the U.S. District Court in D.C. handled in all of 2020, about 290.
More than 100 federal prosecutors are working full or part-time on cases — including 30 detailed from U.S. attorney offices around the country — with some prosecutors and judges handling seven cases or more apiece.
The Office of the Federal Public Defender in D.C. has nine attorneys working multiple Capitol cases, along with many more court-appointed or privately retained counsel.
The court’s three magistrates and five detailees have handled seven times the workload of new criminal presentments compared with the same period last year, court officials said. They approved more than 400 electronic warrants around-the-clock over three weeks in February, records show.
Chief U.S. District Judge Beryl A. Howell expressed confidence in the court’s capabilities, noting it managed a flood of more than 200 habeas corpus petitions when the Supreme Court maintained after the 9/11 terrorist attacks that it had jurisdiction to hear legal challenges from enemy combatants detained at the U.S. naval base in Guantánamo Bay, Cuba. But how much time investigators will have to dig is another question.
In a sign of the probe’s vast scope, several unsealed search warrants have requested subject’s records dating to Nov. 1 — about Election Day — and at least one Feb. 25 warrant sought all of one individual’s Facebook account information dating to Sept. 1. Magistrates have authorized the FBI to search such information for all relevant material to be copied and retained while sealing the rest pending further court order or potential use to authenticate evidence at trial.
New Attorney General Merrick Garland, at a Feb. 21 Senate confirmation hearing, called the investigation into the Capitol insurrection a top priority, and the department’s designation Friday of the Jan. 6 events as the incident came on his second day on the job. Still, the federal Speedy Trial Act generally requires trials to begin with 70 days of a criminal charge. The deadline can be postponed, or time “excluded,” for many reasons, including to hear pretrial motions, await the production of evidence and plea discussions.
The pandemic also has frozen federal trials in Washington for nearly a year, with criminal trials set to resume this month at a trickle, one to three trials at a time.
As a result, most defense attorneys have consented to delays, particularly for defendants who are not in custody. But many have complained that prosecutors have turned over almost no nonpublic evidence.
Prosecutors have raced to charge cases immediately, rather than wait for the end of the investigation. As a result, they may be wary of prematurely offering plea deals to individuals and missing evidence of more serious crimes or not exploring at least some type of cooperation or debriefing, defense attorneys said. The U.S. attorney and federal public defender’s offices for the District have spent weeks hammering out a comprehensive plan to produce, track and review evidence. Complicating matters is the vast amount of video, including security-sensitive footage inside the Capitol, and the difficulty of setting nondisclosure terms when defendants are scattered around the country and cannot review evidence in the presence of counsel.
Under the plan proposed Friday, prosecutors will turn over evidence most directly related to about 55 detained defendants in 30 to 60 days, to be followed later by evidentiary disclosures to about 250 other defendants on a rolling basis.
Prosecutors and defense attorneys are still negotiating a system to store, organize, search, produce and share such information.
Still, some defense attorneys assert that the government is holding back justice for individuals by delaying their cases, treating their clients’ investigations as part of “one large conspiracy case” even though they are not charged in one. Delaying cases also pressures already jailed defendants to plead guilty, they said.
“The fact that the government is working up somebody else’s case should not be used against Ms. Cudd,” Alexandria attorney Marina Medvin argued Friday on behalf of West Texas florist Jenny Louise Cudd, who posted a Facebook video saying she was part of a group that broke down a door to the office of House Speaker Nancy Pelosi (D-Calif.).
“It’s not one case, with multiple individuals charged. It’s separate cases that are charged separately,” Medvin noted. “The government made a choice to arrest . . . they made a choice to indict. . . . The government chose this time frame, and here we are.”
The vast majority of defendants are charged with misdemeanor trespassing and have no or limited criminal histories. Many are employed and have stable family and communities ties, and many are military veterans, records show.
Attorney Jonathan Jeffress successfully argued this week for the pretrial release of Bruno Cua of Georgia, the youngest defendant jailed in the Capitol events, who is accused of some of the most violent online rhetoric.
“We have an 18-year-old man with the whole rest of his life in front of him,” Jeffress said. Cua is charged with assaulting police and rifling through papers on the desks of the Senate chamber, and tested positive for the coronavirus after being slapped in the nose by another prisoner while jailed in Oklahoma.
A felony conviction, Jeffress said, would “dramatically limit his possibilities in life. It puts enormous pressure on us to have Mr. Cua detained. It’s a very coercive situation in terms of a plea agreement.” Judges have had mixed reactions.
When attorneys said they planned to seek a speedy trial for James and Chance Uptmore, a Texas father and son arrested after going to the Capitol on a trip celebrating Chance’s 25th birthday, a judge noted that was their right.
However, U.S. District Judge Royce C. Lamberth also said that while the case seemed like one that would lend itself to resolution short of trial, the government was unlikely to fold if pressed, potentially risking more severe findings by a jury. U.S. District Judge Trevor N. McFadden has pushed the government to move faster in several cases.
“I’m not going to be waiting indefinitely. . . . It’s up to you, but you’re not going to hold up the trial schedule in my cases,” McFadden told prosecutors in the case of Otero County Commissioner Couy Griffin of New Mexico this week. The judge asked prosecutors to reveal their plans by April 7.
“I can’t imagine a reason why you couldn’t extend a plea offer by [May 6], if you intend to,” the judge told prosecutors in another case.
Overseeing the case of Cudd, a 2019 mayoral candidate in Midland, Tex., McFadden said it did not seem particularly complicated but added: “I don’t understand the government to be treating this as one giant conspiracy. I think they’re just faced with the logistical issue of hundreds of people allegedly committing similar crimes, all at the same time.”
In giving both sides until April 29 to discuss a plea, McFadden said Friday, “I suspect we may come to a point where the defendant’s desire and right to have a speedy trial may collide with the sprawling and ongoing nature of evidence collection and disclosure, but I don’t think we’re there right now.”
Correction: A previous version of this article gave the incorrect middle initial for House Speaker Nancy Pelosi. This version has been updated.