A three-judge panel for a U.S. Appeals Court has ordered the release of a Jan. 6 defendant who is tied to one of the most high-profile cases of the Capitol riots: The death of Officer Brian Sicknick.
Officer Sicknick’s death was held up as evidence of the ‘deadly’ Capitol riots during the second impeachment trial for Donald Trump. Even now, one can go to Democratic senator’s sites and read that Sicknick had sustained “fatal injuries during the insurrection.”
However, a medical examiner found that the officer had died of natural causes. Dr. Francisco J. Diaz, the medical examiner, told The Washington Post that “the autopsy found no evidence that Officer Sicknick had an allergic reaction to chemicals nor of any internal or external injuries.” One day before the former president’s Senate acquittal, the New York Times even quietly corrected a claim about Officer Brian Sicknick’s cause of death.
Now, one of the defendants connected to the Sicknick case, West Virginia sandwich shop owner George Tanios, has been released due to the U.S. government’s lack of evidence he poses a danger to his community.
The lower court “clearly erred in its individualized assessment of appellant’s dangerousness,” the three-judge appeals court panel ruled. Tannios is being released despite the evidence that he and Julian Elie Khater were “working together to assault law enforcement officers with an unknown chemical substance by spraying officers directly in the face and eyes.”
Nonetheless, Tannios is being released, which further underscores the U.S. attorneys’ failure to match prosecutorial victories in court with the administration’s extreme characterization of the January 6 event.
“The record reflects that Tanios has no past felony convictions, no ties to any extremist organizations, and no post-January 6 criminal behavior that would otherwise show him to pose a danger to the community within the meaning of the Bail Reform Act,” the court order said.
The Department of Justice is now facing a clear track record of overcharging January 6 defendants. These legal missteps are exacerbated by a reticence to fully prosecute even violent offenders. The DOJ has repeatedly allowed felony charges to be pleaded down to ‘petty’ misdemeanors.
On Monday, the Department of Justice also provided one of the first documented concessions that prosecutors are withholding potentially exculpatory evidence in court cases concerning January 6 defendants.
Acting United States Attorney Channing D. Phillips suggested on Monday that this is the motivation behind keeping more than 14,000 hours of documentary footage of the January 6 events out of the hands of defense attorneys and the public in United States v. Couy Griffin.
Griffin, a county commissioner for Otero County, New Mexico, was arrested for Entering and Remaining in a Restricted Building and Disorderly and Disruptive Conduct in a Restricted Building, on January 19. The prosecution sought to waive the defendants’ right to a speedy trial.
The defendant was released on his own personal recognizance on February 5, 2021. On March 18, 2021, the United States filed a motion for a 60-day continuance of the proceeding, according to the court filing.
The government’s reasoning on the continuance motion was that the Capitol Breach investigation was so complex and sweeping that it would “make the immediate legal proceeding impossible, or result in a miscarriage of justice,” the prosecutors argued. The defense called the prosecution’s bluff. The U.S. attorneys did not want to give the defendant a speedy trial because they have other concerns.
The obvious issue is a complication arising over the matter of potentially exculpatory evidence within the more than 14,000 hours of archival footage and other documentary evidence related to the January 6th events at the capitol.
Beyond the issue of potentially exculpatory evidence regarding Capitol Police officers inviting defendants into the Capitol building is another problem: The appearance that the Capitol Police and other agents of the state were ‘aiding and abetting’ those who entered the federal building to obstruct the official proceedings.
In June, further questions about the potential use of FBI informants and undercover agents to penetrate extremist groups at the capitol began to arise after Revolver News noted a pattern in the Whitmer kidnapping plot: Many of the ‘co-conspirators’ turned out to be agents.
It was confirmed in early July that at least one undercover agent was working the extremist groups that showed up on January 6th. The revelation was disclosed in an affidavit accompanying criminal charges against Fi Duong.
Obviously, the Department of Justice’s cases against more than 500 defendants, none of whom have been charged with “insurrection,” is being complicated by the consideration of political ‘optics.’ It was the same decision-making calculus that caused January 6 to become a security nightmare to begin with.
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OPINION: This article contains commentary which reflects the author's opinion.