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Not a Chance
There is a report here that the judge in a J6 Proud Boys trial was largely unmoved by indications that the FBI spied on attorney-client conversation, suppressed and destroyed evidence, and sought to conceal the extent to which their agents may have been directing the Proud Boys. He did grant them the right to ask a question that the FBI will likely refuse to answer or lie.
It appears our crack law enforcement figures don’t know how to redact an Excel spreadsheet so about 1,000 lines of comments were made available to the defense, which triggered some motions by the defense team.
This whole saga reminds me of the scene in The Life and Times of Judge Roy Bean in which the crazed albino gunslinger Bad Bob rides into town to challenge Roy Bean. Instead of a gunfight in the main street, Judge Bean conceals himself in a barn loft and shoots Bad Bob in the back. When someone points out that he never gave Bad Bob a chance he responds that “if he wanted a chance, he should have gone somewhere else.” That could almost be the motto of the DC Courthouse.
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Published in General
I’ve seen reports of such an Excel spreadsheet being turned over. Do you know whether this was the result of an inability to redact such a spreadsheet, or a failure to notice that it included such information.
In litigation, parties often are required to turn over a great deal of evidence. It can be very time-consuming to carefully review every one of hundreds, or even thousands, of pages of documents and computer files. It’s easy to miss something like hidden columns or rows on a spreadsheet, especially if it’s an Excel workbook with multiple tabs.
Electronic discovery presents other problems. Court rules often require parties to turn over files in “native” format, which would inherently include any hidden columns, even if rules like privilege or work-product would otherwise prevent such information from being disclosed. Some file formats may save prior changes to do the document, so that even if something like a particular row of an Excel spreadsheet is deleted, it can be recovered. If you modify the document to make sure that such a deletion is permanent, you can be criticized — or even sanctioned — for doing so.
The proper way to handle this, theoretically, is to keep a careful log of every such change, tell the other side what information you deleted, and state the justification. Without revealing the protected information. As you might imagine, this can be a difficult task to accomplish.
In my experience, the side with a weak case is often quick to exploit such issues, in an attempt to win the case on a “he hid the ball” narrative, even if the “ball” turns out to be pretty irrelevant. This can sway the passions of a jury, and sometimes even of a judge.
No excuse. If you bring a case with a crapload of evidence, you gotta review the crapload of evidence. And the presumption is that the defense also gets to see it all unless you’ve a valid reason not to share and even then you gotta let the judge and the other side know you held stuff back. And this is generally not the kind of dispute that the jury gets hear.
The approach of the government in this case seems to have been to pluck some useful visuals for evidence and share only those items on the grounds that because they did not feel like looking at the rest, it doesn’t count. It is also unclear to what extent the J6 House Show Trial hogged all the video so that even prosecutors did not see it.
The very fact of Excel alone should be sufficient to expel s—-y little William Gates from civilization. Exile him to Chicago or Malmo or somewhere.
Are you a lawyer? I’m just wondering about your experience with such things.
I think that you’re being very unrealistic. Prosecutors and cops have limited resources, too. Do you really want to make things even more burdensome and expensive, so that they can prosecute fewer cases?
Another way of reducing the burden is to generate fewer records, especially electronic records. Is that what you want? This might cause the cops to be unable to make connections, as was reportedly a problem in advance of 9/11.
What about civil litigants? They’re going to care about the cost. Litigation is already very expensive for ordinary people. Even wealthy defendants, especially companies, face problems with plaintiffs who bring near-frivolous claims, and then embark on a fishing expedition, mostly at the expense of the other side.
I’ve been doing this job for almost 25 years now. There’s not an easy solution, in my experience. It’s a cost-benefit question, which is best handled on a case-by-case basis.
Judges with litigation experience, on both sides, usually do the best job in managing discovery, in my view.
As I understand it, the hidden tabs somehow revealed emails that disclosed that prosecutors had been eavesdropping on client- attorney communications. the prosecutors’ excuse was that jailhouse communications are not confidential. It makes sense that such prosecutorial conduct would rub the judge the wrong way. It sounds like misconduct. Or, certainly questionable behavior at the least.
More reasons that the DOJ cannot be trusted.
I have shoveled through acres of paper in civil discovery on more than one occasion. It was not optional.
If you fashion charges that make a big collection of potential evidence relevant, you don’t get to bitch about how hard it is to review it–prosecutors have absolute discretion.
DOJ has lots of experience with big document cases AND they made prosecuting these cases their single biggest priority. Resources were made available. This is not an instance of an overworked city prosecutor without the time or staff to manage a lot of material.
I am sympathetic to the daunting logistics but the better approach would have been to make this stuff available from jump and let the defense attorneys work out some shared review if they chose. In any event, if the government did review material, then that should have all been made available without question.
If one is charged only with being in the building illegally and there is video, photo, and phone evidence of one’s presence, then the existence of additional video is largely a moot point. But additional charges as to the nature of one’s behavior while there would make the video highly relevant, especially if the government did review it.
As for logistics, there is also the issue of being careful about what you wish for. There was that instance decades ago in which the DOJ (or was it the FTC?) served an overbroad doc demand on an oil company and in return got multiple tractor-trailer trucks unloading boxes on the sidewalk on Pennsylvania Ave for half a day. Again, if you fashion charges that make a big collection of potential evidence relevant, you don’t get to bitch about how hard it is to review it–prosecutors have absolute discretion.
The only reason that most of the J6 crowd can be described as having a “weak case” is because the court system that they faced was a kangaroo court.
Keep your blinders on, Jerry.
When 8 to ten years from now, you find yourself rousted from your home at 4Am for some remark which the PC brigade found out you had made 12 years earlier on social media, it might then occur to you that the thinking portion of the public needed to “take back our courts” when we had the chance.
A Dem mayor just proposed a law to go in effect in his city that would make it impossible to sentence anyone under the age of 21 for murder.
I think the battle you are fighting is the wrong one. And I doubt the future will prove me and those thinking like me to be wrong.
BTW, I may be wrong about this, but have you expressed any concerns over the fact that Ray Epps remains a free man?
The End Times must be near!
The comments by the UniParty /RINO crowd are getting more ridiculous by the hour. Sure because there is so much evidence to keep track of we can forget all that evidence that destroys the government’s case! Some really great Left-turd logic there! Wow! Just Wow!
Remember back in the day when the slightest imperfection in the government’s case was reason enough to completely throw out that case?
I never thought I yearn for those days again but I do.
The absurdity of the Stalinist Left and their fellow travelers in the UniParty is so gut wrenchingly despicable it is getting truly sickening to behold.