The Justice Department has admitted it possesses at least some images of police officers taking pictures with and fist-bumping Capitol rioters on Jan. 6 but has not given it to the defense due to the volume of evidence it needs to wade through in hundreds of criminal cases.
The revelation was made in DOJ court filings this week in the case against Couy Griffin, a New Mexico county commissioner and “Cowboys for Trump” founder who has been charged with illegal entry on restricted grounds for the purposes of disrupting the certification of Joe Biden’s Electoral College victory over then-President Donald Trump.
Channing Phillips, the acting U.S. attorney for the District of Columbia, argued in a Monday court filing that the DOJ needed more time to process all of the data it had collected in its nearly 600 Capitol riot cases before it could hand over all of the potentially exculpatory information, also known as Brady information.
“Despite our diligent efforts, we are not currently in a position to identify all information that may be material to the defense in this case. We do not know the theory of defense, and to the extent that we can surmise what it might be, relevant evidence may be interspersed among voluminous data that we cannot possibly review in its entirety. Further, we are not in a position to turn over the universe of information we possess for Defendant to review,” DOJ prosecutors told the court. “Although we are aware that we possess some information that the defense may view as supportive of arguments that law enforcement authorized defendants (including Defendant) to enter the restricted grounds, e.g., images of officers hugging or fist-bumping rioters, posing for photos with rioters, and moving bike racks, we are not in a position to state whether we have identified all such information.”
The DOJ said that “contrary to Defendant’s assertions that delay is being contrived by the United States as part of a strategy to determine which cases are tried first (which is untrue), or because the United States purportedly lacks the resources to try such cases (which it does not), the entire basis for the continuance being sought here is to honor Defendant’s constitutional rights.”
The prosecution acknowledged that footage showing that police “allowed people to enter or remain in the Capitol or on restricted grounds, acted friendly or sympathetic to the rioters, or otherwise failed to do their jobs” might be relevant to the defense’s case but argued that “to the extent the type of information described above may exist, it may be interspersed among thousands of hours of video footage from multiple sources.”
The DOJ said the goal is to upload all these videos to its “discovery production database” within the next four to six weeks.
Prosecutors said at least 170 defendants have been charged with assaulting, resisting, or impeding officers or employees, including over 50 individuals charged with using a deadly or dangerous weapon or causing serious bodily injury to an officer. The DOJ reported an estimated 140 police officers were assaulted.
The DOJ has filed charges against 565 defendants and has accepted roughly three dozen guilty pleas so far, mostly for misdemeanors.
Griffin’s defense lawyer, David Smith, rejected the DOJ’s argument. He pointed to the DOJ’s seeming admission that it possessed footage of some officers acting friendly toward Capitol rioters, saying: “This statement is striking. Although the government represents that it already possesses ‘some’ arguably Brady material with respect to Griffin, that information has not yet been produced to the defense.”
The defense lawyer added: “The Court will notice that the government could simply produce to Griffin all of the potential Brady in its possession now, but that it is electing not to do so until the discovery team chooses to make the disclosures ‘on a larger scale.’ … The Court should direct the government to produce this material now.”
Griffin’s lawyer filed a separate motion to compel evidence on Thursday, saying, “The government does not need to segregate Brady on a defendant-by-defendant basis, but rather can simply produce the relevant materials it already possesses to Griffin.”
The criminal information filed against Griffin charged him with one count alleging that he entered restricted Capitol grounds and engaged in disorderly conduct there to impede congressional business.
The statement of facts filed in mid-January by a Metropolitan Police Department officer said Griffin and his videographer were part of a larger crowd that pushed its way through police barricades and entered the restricted area of the U.S. Capitol grounds and that a doorway gave them access to the top stairs and the outside deck of the U.S. Capitol through a temporary staircase, with Griffin climbing onto the wall to face the crowd, using a borrowed bullhorn to lead the group in prayer, and later posting since-deleted videos on Facebook seeming to threaten to return to D.C. on Inauguration Day.
The DOJ noted that “multiple defense counsel have inquired about investigations into officers who were alleged to have been complicit in the January 6 Capitol Breach” and said that “we have received copies of investigations into officer conduct, have finished reviewing them, and plan to disclose the relevant materials shortly.”
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