[Pnews] Federal Prosecutors Engaged in Unprecedented Push to Jail Protesters Before Trial

Prisoner News ppnews at freedomarchives.org
Fri Oct 30 12:31:16 EDT 2020


https://theintercept.com/2020/10/30/federal-prosecutors-protests-pretrial-detention/
Federal
Prosecutors Engaged in Unprecedented Push to Jail Protesters Before Trial
Aaron Miguel - October 30, 2020
------------------------------

*Shamar Betts never* thought of himself as a radical. Last year, when he
was 18 years old, he had a minimum-wage job at a camp for preschoolers in
Urbana, Illinois, teaching them to play chess and explore nature. In a
parents’ handbook, Betts described himself as a vegetarian who didn’t
“believe in harming any living being.”

As Covid-19 spread, Betts’s hours were reduced to zero, leaving him with
more free time. When a Minneapolis police officer killed George Floyd on
May 25, resulting in a flood of civil unrest, he felt called to action; his
best friend had been killed
<https://www.chicagotribune.com/news/breaking/ct-washington-park-police-shooting-20170603-story.html>
by Chicago police in 2017. He attended a small march where there were more
white people in attendance than Black; the crowd’s energy didn’t reflect
the rage and pain that he felt.

So the next morning, Betts posted a flyer on his Facebook page, calling for
a riot at a local shopping mall in Champaign on May 31. “Ya’ll don’t think
we suffer through inequality here EVERYDAY,” Betts wrote. “They didn’t
listen when we were peaceful so we gone hit em where it hurts,” he added.
The flyer asked participants to bring “friends & family, posters, bricks,
bookbags etc.”

At the shopping mall, he broadcast himself on Facebook Live as people
around him took items from an Old Navy, boasting that he had “started” the
riot. Twenty-seven people were taken into custody
<https://www.facebook.com/ChampaignPD/posts/2795574307236110> and an
estimated 50 businesses were damaged. That same day, U.S. Attorney General
William Barr denounced nationwide rioting as “domestic terrorism” linked to
“Antifa and other similar groups,” and said that federal law enforcement
was working with the FBI’s Joint Terrorism Task Forces to apprehend people.

Days later, U.S. marshals located Betts, who was staying at his uncle’s
home in Tchula, Mississippi. They banged on the door at 6 a.m., Betts said,
and forced him to crawl toward them as they held assault rifles. He was
charged in both Illinois and federal courts but detained under federal
authority for “using a facility of interstate commerce” — the internet,
specifically Facebook — to incite a riot; he faces up to five years in
prison. He’s never been convicted of a crime.

Betts was far from the only one charged in connection with events that
occurred during the first explosive week after Floyd’s death, or over the rest
of the summer
<https://theintercept.com/collections/protests-for-black-lives/>. U.S.
attorney’s offices across the country working under Barr brought federal
charges against more than 300 people on a range of alleged crimes related
to the unrest, according to the Prosecution Project
<https://theprosecutionproject.org/2020/10/23/tracking-federal-cases-related-to-summer-protests-riots-uprisings/>,
which tracks felony cases involving political violence. The Intercept and
Type Investigations reviewed the cases of 271 people charged through
October 15; at least 107 of those cases are felony prosecutions for crimes
allegedly committed that first week.

The charges were filed almost exclusively against protesters and others
whose actions, legal and otherwise, could reasonably be identified as
supportive of the movement for police accountability; we did not analyze
about a dozen federal cases involving members of far-right groups or
individuals who sympathize with those ideologies.

Analyzing court documents for each of these cases, we uncovered a pattern
of aggressive federal prosecutions for crimes not usually in the purview of
U.S. attorney’s offices. Charges for civil unrest, such as burning a police
vehicle, looting, or property destruction, might typically be handled by
state prosecutor’s offices, according to experts we spoke with. During
Barack Obama’s entire presidency, we could only identify 11 cases related
to protests and uprisings prosecuted by U.S. attorneys, and only one in
which someone was charged with promoting or encouraging a riot. By
comparison, we identified at least five charges of inciting a riot — under
a rarely used statute dating back to 1968 — during this one week in Donald
Trump’s term, including those against Betts.

Apart from filing what critics consider excessive charges, federal
prosecutors made a concerted push to detain the defendants before their
trials. The Intercept and Type Investigations did a closer analysis of the
151 felony cases stemming from the unrest that had been filed as of early
September and found that federal judges agreed to detain more than 50
people until trial, concurring with prosecutors’ arguments for detention.

“This is a clear example of using federal prosecution power to further a
political agenda that the administration has.”

Under the Bail Reform Act, pretrial incarceration without bail is generally
reserved for those who judges believe present a danger to the community or
a demonstrated risk of fleeing; it is supposed to be the exception, not the
rule, experts told us. Yet there’s been a sharp increase
<https://www.law.uchicago.edu/files/Rethinking%20Federal%20Bail%20Advocacy%20to%20Change%20the%20Culture%20of%20Detention%20%28NACDL%20Champion%20July%202020%29.pdf>
in federal prosecutors requesting pretrial detention since 2018, starting
under former Attorney General Jeff Sessions and continuing under Barr.
Overall for fiscal year 2019
<https://www.uscourts.gov/sites/default/files/82_2_2_0.pdf>, federal
district courts detained 61 percent of defendants pretrial, excluding
immigration-related offenses.

In some of the civil unrest cases we reviewed, federal judges expressed
disbelief that prosecutors were trying to have protesters detained. One
judge said he was “at a loss” for why prosecutors were trying to hold a
protester in jail until trial.

Even when judges were ready to release defendants, prosecutors kept seeking
detention, appealing judges’ decisions in at least 18 cases. Prosecutors
appealed the release of at least three defendants all the way to the U.S.
Court of Appeals, a rare move, according to two former federal prosecutors
and two former public defenders interviewed for this story.

Keeping people in jail was especially risky
<https://theintercept.com/2020/05/06/coronavirus-prison-jail-mass-incarceration/>
this past summer
<https://theintercept.com/2020/09/28/covid-prison-outbreak-michigan-coronavirus/>.
By early October, more than 5,000 people in federal pretrial custody across
the country had tested positive for the coronavirus. At least one person
charged in the aftermath of unrest and detained pretrial has contracted
Covid-19, according to our investigation.

The Department of Justice did not respond to a list of questions from The
Intercept and Type Investigations about the degree to which these
prosecutions were directed by high-level officials, including Barr.

Decisions to charge — and how aggressively — are made by individual U.S.
attorneys; the same is true for detention requests. But the department’s
priorities
<https://www.justice.gov/jm/jm-9-27000-principles-federal-prosecution>
significantly influence which cases are pursued, and Barr has made it clear
<https://www.c-span.org/video/?473384-1/attorney-general-barr-testifies-justice-department-mission-programs>
that curbing “violent rioters and anarchists” is a priority for the
department. Trump has also been highly critical of protesters (this
reporter was one of more than 200 people
<https://www.cnn.com/2017/06/08/politics/disruptj20-inauguration-day-arrests/index.html>
who were arrested and charged during the protests against his inauguration
in Washington, D.C., but later had their charges dropped).

Some of the prosecutors asking for harsh penalties against protesters and
detention without bail have shown a willingness to pursue the
administration’s political goals. A few of the most aggressive prosecutors
either held or were nominated for positions at the DOJ in which they
assisted with counter-investigations into Ukraine and Russian
election-meddling involving close associates of Trump.

For Kristy Parker, counsel at Protect Democracy and a former deputy chief
in the criminal section of the DOJ’s civil rights division, these
prosecutions also have a political motive.

“The Department of Justice has a lot of discretion in deciding what kinds
of cases to bring or not bring and what kinds of pretrial detention to seek
or not seek,” she said. “This is a clear example of using federal
prosecution power to further a political agenda that the administration
has.”

In nearly all of their appeals regarding the detention of protesters,
prosecutors were unsuccessful in keeping people locked up until trial.
There were only three defendants for whom prosecutors succeeded in
overturning a lower court’s order of pretrial release. Among them was
Shamar Betts.

[image: shamar-betts-teaching-pixel]

Shamar Betts co-leads a reading group at the Preschool Nature Camp in July
2019.

Photo: Provided to The Intercept
Sending a Message

When Betts arrived at the jail in Madison County, Mississippi, after his
arrest on June 5, officers placed him alone inside a pod large enough to
hold more than two dozen people, he recalled.

During his physical exam, he was shackled and accompanied by two officers,
Betts said in an interview by phone last month. He had no television or
access to a phone, he said, and one guard told him he was being looked at
as “a type of activist.” The jail directed questions about his
incarceration to the U.S. Marshals Service.

In response to questions about Betts’s account, the U.S. Marshals Service
did not respond to individual allegations but emailed a statement
describing security precautions as “for the safekeeping of all prisoners
and facility staff based on information available at the time of detention.”

Betts, who had never heard of the charge “inciting a riot” before his
arrest, was terrified. “I didn’t know exactly what they would do to me,” he
said.

After his detention in Mississippi, Betts was herded onto a transport plane
loaded with other shackled prisoners that went on to pick up people from
several other states.

Later in June, he was brought to a jail in Grady County, Oklahoma, and held
in a 42-person pod. Before he arrived, at least one prisoner at the
facility reportedly
<https://www.chickashanews.com/community/grady-county-jail-inmate-died-of-covid-19/article_d39d00a2-9150-11ea-bb8d-6f15f8a567f1.html>
died from Covid-19. The U.S. Marshals Service did not test
<https://www.themarshallproject.org/2020/08/13/con-air-is-spreading-covid-19-all-over-the-federal-prison-system>
prisoners for the virus before loading them onto planes or buses at that
time, the Marshall Project reported.

Betts’s aunt Ashley Morris said it’s “devastating” that her nephew is still
in jail. She helped raise him in Jackson, Mississippi, where he moved from
Chicago after his mother died from complications caused by a muscle disease
when he was 11. He never fully adjusted to that loss, Morris said; earlier
this year, Betts posted photos of his mother on Facebook, writing, “I think
about how much happier my life would’ve been with you here.”

Compounding his misery in Mississippi were humiliating encounters with the
police, who Betts said referred to him using racial slurs. During one
incident, Betts recalled, an officer arbitrarily stopped him and a friend
while they were walking, stood on his foot so he wouldn’t run, and forced
him to place his hands on a scorching hot police vehicle while he was
searched.

After a few years in Mississippi, Betts moved with his older brother to
Champaign two years ago.

“You took this one incident and blew it extremely out of proportion,”
Morris said of Betts’s prosecution. “You’re not understanding the
frustration that they have because they see all these killings, and this
mistreatment, and nothing is done about it. As if we’re not even human.”

[image: Protests for Black Lives]Read Our Complete CoverageProtests for
Black Lives <https://theintercept.com/collections/protests-for-black-lives/>

In early July, the court appointed Betts an attorney, Liz Pollock, a
federal public defender whose child had coincidentally been supervised by
Betts at the camp where he worked. The same day she was appointed, U.S.
attorneys pressed a magistrate judge to keep Betts detained until trial.

Pollock convinced the judge to delay making a decision so she could prepare
a defense for Betts’s detention hearing to try to get him released from
jail.

Most of the prosecutions examined by The Intercept and Type Investigations
involved property damage, arson, and possessing devices such as Molotov
cocktails. Many of these cases could have been handled by state
prosecutor’s offices rather than the federal government, and traditionally
are, according to Rob Singer, who worked as a federal prosecutor for eight
years, including under the George W. Bush administration*.*

“When I was a federal prosecutor, the first thing I’d do is write up a memo
to my boss [describing why] we should prosecute a case under federal
charges,” Singer said. “That vetting process is not something that happens
overnight. It usually takes weeks, sometimes several months, to resolve.”

In the months after Floyd’s killing, Trump blamed
<https://newrepublic.com/article/159144/trump-convention-ivanka-white-house-2020>
the widespread looting and arson on “anarchists and agitators,” while Barr
derided
<https://www.vice.com/en_us/article/g5pmzy/attorney-general-william-barr-thinks-back-lives-matter-is-fascistic-like-the-bolsheviks>
Black Lives Matter protesters as “essentially Bolsheviks” bent on
revolution. An analysis
<https://apnews.com/article/virus-outbreak-race-and-ethnicity-suburbs-health-racial-injustice-7edf9027af1878283f3818d96c54f748>
by the Associated Press found that “very few” of those charged seemed to
have links to highly organized extremist groups. None of the charging
documents reviewed by The Intercept and Type Investigations indicated
defendants’ ties to anarchist or anti-fascist ideologies as motivating
factors in alleged criminal behavior.

Such inflammatory statements from top officials, along with the mass
prosecutions of protesters, are “completely unprecedented,” according to
Roy Austin, a former deputy assistant attorney general for the Justice
Department’s civil rights division. “To even be prosecuting these cases
federally,” he said, “it’s purely for message sending.”
Misconstruing Bail Laws

To keep protesters in jail pending trial, federal prosecutors across the
country are telling judges to ignore mitigating factors that typically
weigh in favor of release.

Richard Donoghue, who was the U.S. attorney for the Eastern District of New
York when the office opened a case against Colinford Mattis and Urooj
Rahman, two lawyers accused of torching a cop car in Brooklyn, approved an
appeal to the 2nd U.S. Circuit Court of Appeals asking judges to detain the
defendants before trial. Neither has a criminal record and both have
extensive community ties, but federal prosecutors argued these facts
shouldn’t matter because the defendants’ positive attributes did not
prevent them from committing the alleged crime.

This reasoning was a “misconstruing of bail laws,” according to Brian
Jacobs, a former assistant U.S. attorney who disputed the “novel” reasoning
in an amicus brief co-signed by 56 other former federal prosecutors.

Donoghue was promoted
<https://www.justice.gov/opa/pr/attorney-general-william-p-barr-announces-appointment-richard-p-donoghue-principal-associate>
by Barr in July to top deputy for Deputy Attorney General Jeffrey A. Rosen,
who had assigned Donoghue to supervise
<https://www.politico.com/news/2020/02/18/justice-department-ukraine-inquiries-115793>
all DOJ investigations into Ukraine following Trump’s impeachment. The
person Barr picked to replace him, Seth Ducharme, worked with Barr as his
counselor to investigate
<https://www.americanoversight.org/documents-we-obtained-show-barr-met-with-prosecutor-examining-mueller-investigation-immediately-after-mueller-investigation-ended>
the Mueller investigation.

In Cleveland, the U.S. attorney’s office sought pretrial detention for at
least four defendants charged with crimes related to the protests*.* The
U.S. attorney for the Northern District of Ohio, Justin Herdman, was
nominated
<https://www.washingtonpost.com/local/public-safety/2020/05/18/2bbf77c4-9930-11ea-89fd-28fb313d1886_story.html>
by Trump in May to oversee the U.S. attorney’s office in D.C., which
handles both local and federal cases.

Pretrial incarceration without bail is supposed to be the exception, not
the rule.

One of the Cleveland cases involves T’Andre Buchanan, a 22-year-old man who
was arrested after smashing the window of a cupcake shop during unrest on
May 30. A pretrial services report recommended that Buchanan be released,
but federal prosecutors still tried to have him detained.

In an appeal of Buchanan’s release by a magistrate judge, Assistant U.S.
Attorney Scott Zarzycki argued that Buchanan’s redeeming personal
characteristics — his employment as a customer service representative with
Spectrum, his lack of criminal record, and his stable family and community
ties — paled in comparison to his alleged crimes. District Judge Pamela
Barker denied the government’s motion and ordered Buchanan free on bond
with a GPS monitor, noting simply that “the court was not persuaded by the
government’s arguments.”

In the case of Cyril Lartigue, a 25-year-old arrested in Austin, Texas,
after a surveillance camera filmed him fiddling with what prosecutors
argued was a Molotov cocktail, Assistant U.S. Attorney Keith Henneke argued
that Lartigue should be detained. He showed up to the protest with “gloves
and goggles and a hard hat,” Henneke said, signaling confrontational intent.

The magistrate judge, Andrew Austin, grew sour, questioning how prosecutors
could argue that Lartigue, who had “no criminal history” and a “stable
family,” should remain imprisoned until trial.

“I’m frustrated,” Austin said. “I have defendants in here with significant
criminal histories the government agrees to release, who sell drugs to
children and other things, because they’ll cooperate.”

Before the hearing ended, Henneke requested that Austin stay the release
order, citing guidance from his supervisors in the U.S. attorney’s office
to appeal the decision to a higher court. A district judge upheld Austin’s
decision in a one-page ruling the next day.

The U.S. attorney who initiated Lartigue’s prosecution, John Bash, resigned
in early October to work in the private sector after cultivating a close
relationship to the Trump administration. He was previously a special
assistant to the president and tapped by Barr in May to investigate
<https://www.politico.com/news/2020/05/28/barr-russia-probe-attorney-286920>
the “unmasking” of former Trump national security adviser Michael Flynn,
who was convicted of lying to the FBI about his phone call with a Russian
diplomat in December 2016. The DOJ is now seeking
<https://www.npr.org/2020/05/08/852582068/mike-flynn-pleaded-guilty-why-is-the-justice-department-dropping-the-charges>
to have Flynn’s charges dismissed.

The advocacy for pretrial detention by U.S. attorney’s offices in unrest
cases may signal a broader shift in the DOJ, according to Jacobs.

“Bail is supposed to be the rule,” he said. “The question is whether at any
point the pendulum has swung too far to the point where detention is
becoming the norm rather than bail.”

[image: 7B9ECD02-1614-45E9-A829-DA533FECFB9D]

Shamar Betts’s graduation from Henry Kirksey Middle School in Jackson,
Mississippi, in 2015.

Photo: Courtesy of Ashley Morris
Alone and at Risk

In July, Shamar Betts was transferred from Oklahoma to a jail in nearby
Macon County, Illinois.

His prosecution in the Central District of Illinois is being overseen by
U.S. Attorney John Milhiser, who Trump appointed in 2018. Milhiser declined
to respond to a list of written questions, but earlier this year, he was
interviewed
<https://www.wglt.org/post/us-attorney-plans-expand-youth-outreach-program-bloomington-peoria#stream/0>
by NPR about a call
<https://medium.com/@dojalumni/doj-alumni-statement-on-the-events-surrounding-the-sentencing-of-roger-stone-c2cb75ae4937>
for Barr’s resignation by two former U.S. attorneys in Illinois, who cited
Barr’s request for leniency for Roger Stone, an ally of the president.
“Politics plays no part in anything we do in the office,” Milhiser said.

Days before Betts’s detention hearing on July 13, his lawyer secured
assurance from his former boss at the camp that she would house him during
his pretrial wait. During the hearing, held over videoconference, the teen
listened as Assistant U.S. Attorney Eugene Miller made the case before
Magistrate Judge Eric Long to keep Betts locked up.

“In looking at the nature and circumstances to this offense, thinking about
this case, I cannot recall any other single incident — in the last 20 years
at least that I’ve been a federal prosecutor — that has endangered the
safety of the entire Champaign-Urbana community more than this offense,”
Miller said.

Betts’s lawyer, Liz Pollock, pushed back, arguing that there was no way of
knowing the degree to which his post propelled people into the streets.

“I’m still confused how they could look at me as a threat to the community.”

“Is it not possible that the unrest that has scoured the country after the
murder of George Floyd has caused many people to become upset about the
state of criminal justice and the state of institutional racism that Black
men have been dealing with … for years and years and years?” Pollock stated.

Long ruled for Betts’s release, citing his past employment and clean
criminal record. Betts was then transferred to the Champaign County
Satellite Jail, where he could be released on a $100,000 state bond. An
activist group had already volunteered to pay it.

But the next day, after U.S. attorneys filed an emergency motion appealing
Betts’s release, District Judge Michael Mihm overruled Long’s decision and
ordered Betts detained until trial.

Today, Betts remains on a federal hold in a jail where at least 16
detainees have contracted Covid-19 since May; he is diabetic and asthmatic
and worries about being exposed to the virus. Before being jailed, he was a
committed vegetarian, but the lack of healthy options forced him to start
eating meat again.

Betts’s trial is scheduled for November, but it could be postponed due to
Covid-19 closures. In August, the U.S. Court of Appeals for the 7th Circuit
curtly denied his lawyer’s appeal of Mihm’s order of detention. On October
1, Pollock filed a motion to dismiss his indictment, citing constitutional
challenges to the federal riot statute under which Betts is charged.

Like many of the other protest-related cases reviewed by The Intercept and
Type Investigations, Betts’s case elicited fierce and polarizing opinions
in his community as the Trump campaign stoked fears of unrest. After the
local press picked up his case, several people sent angry emails to his
former employer, demanding that the camp publicly denounce him.

For Betts, the experience has been as perplexing as it has been difficult.
On October 4, he turned 20; his family tried sending him extra funds for
his birthday, but he says he had trouble receiving them through the jail’s
commissary.

“I wouldn’t consider myself as a dangerous activist,” Betts maintains. “I’m
still confused how they could look at me as a threat to the community.”

*Research assistance by Nina Zweig.*
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