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D.C. Jail effectively bans attorney-client privilege for January 6 defendants, claim lawyers for accused Capitol rioter.
by Greg Piper, July 13, 2021, JusttheNew.com
If the late Jeffrey Epstein's alleged partner in sex trafficking can be granted a laptop 13 hours a day to actively participate in her defense, why not January 6 defendants?
The jailhouse accommodation for Ghislaine Maxwell is the most prominent example cited in a bail application for alleged Capitol rioter Dominic Pezzola, submitted to D.C. federal court Friday.
The 43-year-old veteran, now incarcerated in D.C. jail for 150 days, has been effectively shut out of his own defense in violation of constitutional guarantees specifically for defendants, not just their counsel, the filing says.
Not only is Pezzola unable to "adequately" view the voluminous text, audio and video evidence held by the prosecution, but like all other January 6 defendants housed a short drive from the U.S. Capitol, his right to attorney-client privilege is functionally meaningless, his lawyers Marty Tankleff and Steven Metcalf argue.
They raised similar objections about lack of privacy and access to evidence to Just the News two months ago, following brief outrage from Democratic and Republican lawmakers about Department of Corrections policies for January 6 defendants and other D.C. jail inmates.
Pezzola has "literally been in his cell for 22 or 23 hours a day," the filing says. "It is impossible to have a free-flowing conversation" with their client in these "open cages where there is no confidentiality [and] everyone can hear the conversations[,] including prison guards."
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D.C. jail evidence-review policies also have "the potential to invade attorney-client privilege" and the practical effect of punishing inmates, by putting them in "restrictive housing" for two weeks at a time to privately review CDs and DVDs of evidence on jail-provided laptops.
The lawyers suggested they will seek a new trial or dismissal if these conditions aren't reversed, citing legal precedents that punish a prosecution for "knowingly arrang[ing] or permit[ing] intrusion into the attorney-client relationship."
They cited a recent scandal in New York City, where their law practice is based, involving the accidental recording of at least 1,500 attorney-client phone calls by a prison telecom contractor. District attorneys for all five boroughs received the recordings.
"In this case," the lawyers hold, "a better alternative" to giving Pezzola a laptop is granting him bail, which would sidestep concerns about the D.C. jail not following court orders and infringing his attorney-client privilege.
CLICK HERE TO DOWNLOAD DEFENDANT PEZZOLA’S MOTION FOR BAIL TO PLACE DEFENDANT ON CONDITIONAL RELEASE PENDING TRIAL
The jail has a record of discriminating against Pezzola, sending him to "the hole" multiple times without a "reasonable penological reason" but rather as retaliation or harassment, the filing claims. One of these — lasting about two weeks, "without a single disciplinary charge" — happened hours after a broadcast interview with his wife.
Alleging "human rights violations on a daily basis" against January 6 inmates, who are not part of the general jail population, the motion claims "dozens" of them share the same unsanitary nail clippers, exercise is limited at best, access to showers is "nearly nonexistent," and religious services and haircuts are banned.
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It's not just defense lawyers raising these concerns, the filing says, pointing to a June 24 letter from Rep. Marjorie Taylor Greene to FBI Director Chris Wray, Bureau of Prisons Director Michael Carvajal, D.C. Mayor Muriel Bowser and Yogananda Pittman, acting chief of the U.S. Capitol Police.
She demanded they provide records by July 30 on visitation hours, religious accommodations, solitary confinement, "number of daily meals" and access to attorneys and "potentially exculpatory evidence" for January 6 defendants versus the general jail population.
"If reports surrounding the treatment of these prisoners are true," including physical violence by guards and needless isolation, "it is an enormous stain on the credibility of our justice system," which is giving far more lenient treatment to "domestic terrorists" associated with Black Lives Matter and Antifa, Greene wrote.
Unlike with Maxwell, who allegedly arranged Epstein's sexual encounters with minors, the government can't come close to showing Pezzola is a flight risk, as the court determined months ago, the bail motion says. His wife and children remain in the same community where he's lived for more than 20 years.
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That leaves only the long-outdated "dangerousness" factors behind his original pretrial detention: Pezzola's alleged discussions with other rioters of bringing weapons to D.C. and a recovered thumb drive with "instructions for making bombs, firearms, and poisons." Any terms of his release would prohibit access to weapons.
If not released on his own personal recognizance, he can be placed into the custody of his wife under a "high intensity supervision program" with GPS monitoring, the motion suggests. His co-defendant William Pepe, who is missing from three of his 10 charges, was released on personal recognizance with travel restrictions.
Those three additional charges are not enough to justify continued detention, according to the motion. Two are based on Pezzola picking up a "riot shield" dropped by a U.S. Capitol officer, and the third — obstructing an officer from responding to "civil disorder" — did not stop release on bond for defendant Michael Foy, alleged to have struck at officers "at least 10 times" with a hockey stick.
The filing includes several pages of other defendants who faced "equal or greater criminal charges" and were granted bail or released on their own recognizance. They include actress Lori Loughlin, former police officer Derek Chauvin and Adam Christian Johnson, the January 6 rioter photographed walking off with Speaker Nancy Pelosi's lectern.
Depriving Pezzola the same leniency violates his equal protection rights, especially in light of federal prosecutors dropping charges against the vast majority of arrestees nationwide who looted and rioted following George Floyd's death, the motion says.
The most serious felony counts against him could also be applied to Democratic Sen. Chuck Schumer, for having "threatened" justices Neil Gorsuch and Brett Kavanaugh on the steps of the Supreme Court during oral argument in an abortion case.
The lawyers said they would also request discovery for the government's charging documents against pro-choice Code Pink activists and other protesters who disrupted Kavanaugh's confirmation hearings, which were "official proceedings."
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