Given the way DOJ has disposed of cases recently,
Chansley's attorney must have worked hard to
come up with a "deal" as bad as the one Chansley got.
In federal court in the District of Columbia on Friday, January 6 protest defendant Jacob Chansley — the “Q-Anon Shaman” — pleaded guilty to a single count of violating 18 U.S.C. Sec. 1512(c) — “Obstructing an Official Proceeding.”
Chansley has received horrible legal advice and assistance in his case. His attorney, Albert Watkins of St. Louis, has been suspect from the very beginning, making prejudicial statements about the mental health of his client in the media, referring to him as a “short bus” person. Generally speaking, Watkins has a “mixed” reputation in St. Louis as a defense attorney.
But his defense of Chansley in the January 6 protest case reflects a standard of representation far below what I would consider “mixed.”
I previously wrote about Watkins's failure to obtain Chansley’s release on bond in early July. Watkins made representations in a bail review hearing about conditions of release that could be arranged for Chansley in St. Louis. District Judge Royce Lamberth waited for Watkins to supply details to the Court regarding the representations he made, but Watkins never submitted the information. Judge Lamberth pointed that out in his written decision two weeks ordering that Chansley remain detained pending trial. From the language in Judge Lamberth’s order, it seemed clear he would have released Chansley on bail had Watkins done his job.
But Watkins’s performance in the bail matter pales in comparison to his horrendous representation reflected in Chansley’s guilty plea.
DOJ has agreed to dismiss felony counts and accept guilty pleas to misdemeanors in several cases since early July. The decision to resolve cases in this fashion followed closely behind comments by several of the federal judges that the government’s delay in providing discovery to the defendants was beginning to infringe on “fair trial” rights. It was pointed out that at the same time the prosecutors were offering as an excuse how enormous and complex the investigation and prosecution of the January 6 protests were, the DOJ continued to arrest and charge more people, only adding to its existing problems.
It is normally a violation of written DOJ policy to agree to dismiss a felony charge by a grand jury and accept a guilty plea to a misdemeanor in order to resolve a case. But prosecutors started down that road in response to judicial criticisms in order to begin the process of reducing the number of pending cases rather than continue to add to them with new filings.
Given that, it is hard to contemplate how Chansley’s attorney could have come up with a worse outcome via plea agreement than the one filed yesterday.
First, Chansley agreed to plead guilty to the most serious charge filed against him — the felony “obstruction of an official proceeding” charge. That is the same charge DOJ has been dismissing in other cases.
Second, the plea agreement provides that the parties agree that an eight (8) level enhancement under the sentencing guidelines is appropriate under the facts of Chansley’s case because of “injury/property” damage. The written agreement states this will not be a matter of dispute at sentencing.
The specific provision in the Sentencing Guidelines at issue is Sec. 2J1.2(b)(1)(B), which reads as follows:
(B) If the offense involved causing or threatening to cause physical injury to a person, or property damage, in order to obstruct the administration of justice, increase by 8 levels.
The application of that single enhancement provision is the difference between a sentence recommendation of 15-21 months and a recommendation of 41-51 months. That is sort of a big deal in my view — too big of a deal to simply stipulate to under the terms of a plea agreement.
Chansley is not charged in a conspiracy with any other January 6th protesters. His guilty plea and sentence must be based on his conduct alone, not the conduct of some larger crowd of people in the same location where he was present. What others were doing around him is not relevant to the determination of an appropriate sentence for the specific crime he admitted to committing.
But the Statement of Facts filed along with his plea agreement does not include any allegation that Chansley himself “caused or threatened physical injury” to any person, nor is there an allegation that he caused or threatened to cause property damage.
And that doesn’t even touch on the question of what is meant by “obstruct the administration of justice” in that guideline provision.
Here are some examples from the factual statement with regard to Chansley’s words and conduct while at the Capitol on January 6:
5. By 1:50 pm, the defendant, Jacob Chansley, was among the members of the crowd at the police line on the West front of the U.S. Capitol building …”
6. At approximately 2:00 pm, certain individuals in the crowd forced their way up and over the barricades, and officers of the U.S. Capitol Police, and the crowd advanced to the exterior façade of the building.
7. The defendant was among the crowd that passed the police line at the West front, entered the scaffolding erected in advance of the inauguration on top of the staircase heading up to the Lower West Terrace of the U.S. Capitol building. The defendant and others pushed past the police line at the top of the scaffolding and entered the Upper West Terrace of the U.S. Capitol building at approximately 2:10 pm.
8. [S]hortly after 2:00 pm, individuals in the crowd forced entry into the U.S. Capitol, including by breaking windows and by assaulting members of law enforcement, as others in the crowd encouraged and assisted those acts….
9. The defendant was with the mob that approached the first floor of the U.S. Capitol building on the Senate side. Other members of the crowd broke two windows and crawled inside the building at approximately 2:13 pm. The rioters then broke open the door to the U.S. Capitol building… The defendant entered through the broken door at approximately 2:14 pm.
11. At approximately 2:16 pm, the defendant and other rioters ascended the stairs to the second floor to the Senate side of the U.S. Capitol building…. The defendant challenged U.S. Capitol Police Officer K.R. to let them pass, ultimately using his bullhorn to rile up the crowd and demand that lawmakers be brought out.
12. … At approximately 2:52 pm, the defendant entered the Gallery of the Senate alone. The defendant then proceeded to scream obscenities in the Gallery, while other rioters flooded the Chamber below.
13. The defendant then left the Gallery and proceeded down a staircase in an attempt to gain entry to the Senate floor. There, the defendant once again encountered Officer K.R., who once again asked him to leave the building. The defendant insisted that others were already on the Senate floor and he was going to join them. Officer K.R. then followed the defendant onto the Senate floor.
The statement of facts includes additional details of the idiotic conduct of Chansley and the others inside the Senate chamber, but there are no references to Chansley himself doing any damage to property or causing bodily injury.
Everything Chansley did inside the Senate chamber, including sitting in the chair for the presiding officer, was captured on audio and video. Yet there are only two quotes attributed to Chansley in the factual basis for the plea:
“Mike Pence is a fucking traitor”
and the following:
giving thanks for the opportunity “to allow us to send a message to all the tyrants, communists, and the globalists, that this is our union, not theirs, that we will not allow America, the American way of the United States of America to go down.” The defendant went on to say “[t]hank you for allowing the United States of America to be reborn. Thank you for allowing us to get rid of the communists, the globalists, and the traitors within our government.”
So how is it that the plea agreement worked out by defense attorney Watkins made Chansley’s situation worse?
One option every criminal defendant has is to “plead straight up” without any agreement with the prosecution. Given that all the remaining charges against Chansley are less serious than the charge he pleaded guilty to, his sentence would not be different if he simply pleaded guilty to everything. The sentences on all the more minor charges would have been ordered to run concurrently with the sentence on the most serious charge — the one he pleaded guilty to — meaning he would have faced no additional jail time by pleading guilty to all six counts than is the case by pleading guilty to just the most serious count.
More significantly, such a “straight-up” plea would not have included agreements with the prosecution on any issue — including as to whether a particular guideline provision would apply such as the one imposing an 8 level enhancement for bodily injury or property damage.
There would be no document signed by Chansley and his attorney agreeing that the applicable guideline range is 41-51 months. The burden would be on the government to prove at sentencing with evidence that the various enhancements should be applied in determining the guideline range. Chansley’s attorney could have contested those facts and challenged the application of that provision.
Given the weak statement of facts offered in support of the plea agreement, it seems to be a situation where the government might have struggled to get that 8-level enhancement provision to apply. But the agreement eliminates that problem for the government at sentencing.
The plea agreement also waives most appeal rights Chansley might have. While this is a typical provision in a plea agreement, the waiver agreed to in this case is noteworthy:
Your client agrees to waive, insofar as such waiver is permitted by law, the right to appeal the conviction in this case on any basis, including but not limited to claim(s) that (1) the statute to which your client is pleading guilty is unconstitutional and (2) the admitted conduct does not fall within the scope of the statute.
The docket in Chansley’s case does not show any effort by defense counsel Watkins to raise the constitutionality of Sec. 1512(c) even though such challenges to the statute have been raised in numerous other cases.
Judge Lamberth is a Reagan appointee, generally very conservative, and with a very intellectual approach to legal issues. Among the judges on that court, he would be at the top of my list to raise a challenge to the way DOJ has used Section 1512(c) in the January 6 cases. At least one other federal judge has already questioned whether the statute as being applied by DOJ can withstand constitutional scrutiny on the ground that it is too vague.
Not only did defense counsel Watkins never make such a challenge which might have lowered Chansley’s exposure to six months or less, but he’s also now given away in the plea agreement any chance Chansley may have had to raise it as an error on appeal.
A “plea agreement” generally includes some form of benefit for each side that makes it a “bargain.” So what did Chansley get from the plea agreement?
So far as I can tell, pretty much nothing. Nothing in the terms of the agreement improves Chansley’s position in the case in terms of guilty or sentence exposure.
Finally, there has been much hand-wringing in the right-of-center media coverage of Chansley’s case, most especially the fact that he has been kept in pretrial detention since his arrest. As I noted above, I wrote about this issue back in July, placing much of the blame on Watkins at that time too.
Some of the same voices excoriated Judge Lamberth yesterday for not releasing Chansley until the time of his sentencing in November. Again, placing too much reliance on those without a functional understanding of how federal criminal cases are handled leads to many false narratives no better than the propaganda from the left.
There are two points worth making with regard to Chansley not being released by Judge Lamberth.
First, he’s no longer “innocent until proven guilty.” Chansley has now sworn under oath that he committed a federal felony on January 6. One consequence of that change is circumstance is that a different bail statute comes into play — 18 U.S.C. Sec. 3143. That section creates a presumption that persons convicted of a crime shall be detained pending imposition of sentence. That presumption can be overcome by a proper showing similar to the showing necessary to gain release from custody pending trial. Given that Chansley — because of defense counsel’s failure to do his job — had not previously convinced Judge Lamberth to release him, it should have surprised no one that Judge Lamberth would still have the same view now that Chansley has admitted his guilt.
But second and more significant was the following provision in the plea agreement signed by Chansley and defense counsel Watkins:
VIII: Conditions of Release.
Your client agrees not to object to the government’s recommendation that the Court at the time of the defendant’s plea of guilty in this case that your client be detained without bond pending your client’s sentencing in this case pursuant to 18 U.S.C. Sec. 3143.
Defense counsel Watkins did make an oral motion for release from custody — in violation of this provision of the plea agreement — and Judge Lamberth took the motion under advisement at the end of the hearing, meaning he’ll rule on it in writing.
We might get a signal from Judge Lamberth that he’s going to save Chansley from his own lawyer. If Judge Lamberth releases Chansley from custody pending sentencing, that will strongly suggest that Judge Lamberth might be leaning towards a sentence of “time served,” or at least a sentence not much greater than the time Chansley has already served.
If Judge Lamberth intends to sentence Chansley to anything close to 41 months, there is no reason for him to release Chansley from custody now only to order him back into custody for another 2+ years in November.
Judge Lamberth knows that only one defendant has been sentenced after a guilty plea to a violation of Sec. 1512(c), and Judge Moss gave that defendant only 8 months.
I would not be surprised at all if Judge Lamberth ignored the stipulations in the plea agreement altogether, and sentenced Chansley to a term similar to the one imposed by Judge Moss. We’ll have a strong indication of that being his intention if he releases Chansley on bail now.