WASHINGTON — As the case of Timothy Hale-Cusanelli, a suspect in the Jan. 6 Capitol riot, was poised in late July to drag into its seventh month without much progress, the presiding judge lost patience with the prosecutor.
The government, he suggested, had created a kind of vicious circle.
Hale-Cusanelli, a Hitler impersonator accused of storming the Capitol, was in jail awaiting trial even as prosecutors kept filing charges against new defendants in the riot. The more arrests that were made, the judge, Trevor McFadden, reasoned, the more evidence generated that needed to be given to the defense; and the more evidence that had to be turned over, the longer it would take to resolve Hale-Cusanelli’s case.
Trying to assuage McFadden, the prosecutor noted that the investigation of Jan. 6 was a uniquely challenging ordeal and that handing over all of this so-called discovery material was an important part of the legal process.
The judge was not impressed.
“Freedom is also important,” he shot back.
That exchange was emblematic of a legal tension simmering in a number of cases stemming from the Capitol attack. It has, in essence, pitted the government’s herculean efforts to gather and organize the evidence collected in its sprawling investigation of the riot against the constitutional right of defendants to speedy trials.
It is rare for cases to be dismissed for speedy trial infractions. But if proceedings continue to drag on, detained defendants like Hale-Cusanelli could be released as their cases move through the courts.
There are any number of ways to describe the scope of the government’s Capitol riot prosecution. To name just one, the Justice Department has brought charges against over 560 people, more than in any other single investigation since its founding in 1870.
Moreover, because much of the riot was caught on camera and social media, the amount of discovery material it has created has also been enormous. Prosecutors have collected tens of thousands of hours of video footage from surveillance cameras inside the Capitol and from body cameras worn by the police. There are disks full of cellphone tower readings, flash drives of radio transmissions, hundreds of thousands of tips from individuals, and reams of texts and photographs from thousands of cellphones seized by federal agents.
The government has said that it has gathered more than 1 million posts from the conservative social media app Parler alone.
Complicating matters, the rioters on Jan. 6 moved as a mob, often working in proximity or concert. That has meant that much of the discovery data is “overlapping and interlocking,” as prosecutors have said, and needs to be shared with multiple defendants.
“It doesn’t compare to any case that has ever occurred in the history of our government,” a prosecutor said at Hale-Cusanelli’s hearing.
To organize the material, the government has established a squad of prosecutors, the Capitol breach discovery team, which meets regularly with counterparts in the Washington Federal Defenders Office. In May, it also signed a contract with Deloitte Financial Advisory Services to create a database intended to allow defense lawyers to find evidence related to their clients and search for videos by location on the Capitol grounds.
But the process of setting up the database has not been smooth or quick. McFadden ribbed the leader of the discovery team, Emily Miller, on Monday in court.
“I don’t envy you your job,” he added.
She responded, “No one does.”
While several judges have questioned prosecutors about speedy trial concerns and have promised consequences if delays persist, McFadden, a Trump appointee, has been the most consistently — and vocally — critical of the government.
The hearing Monday, for example, came in the case of Couy Griffin, the founder of a group called Cowboys for Trump, who is not in pretrial custody and was recently offered a deal to plead guilty to the charges he is facing. The fact that McFadden raised concerns about the pacing of his case — which appears to be on a path toward resolution — suggested that he might have broad problems with how the government was conducting its prosecution overall.
Miller began the hearing by laying out the familiar litany of discovery materials the government had collected — videos, texts, photos, social media posts — and then suggested it was in the interest of Griffin and other defendants to allow prosecutors time to cull through the evidence for them. In a filing that morning, she and a colleague had made a similar argument, writing that whenever delays occurred, they were at least partly caused by prosecutors searching their files for potentially exculpatory evidence like “images of officers hugging or fist-bumping rioters.”
But McFadden returned to the issue of new arrests, arguing that the government had created its own challenges by continuing to file them, increasing the pool of relevant discovery.
“This just doesn’t seem sustainable,” he said.
Some legal experts said that remarks like those might not necessarily result in serious penalties and could be little more than a judge using his bully pulpit to nudge complex cases toward completion.
“I suspect that judges are using the law to poke and prod at prosecutors, not necessarily to make dramatic decisions,” said Jeffrey Fisher, a professor at Stanford Law School.
Still, lawyers keep bringing up the issue.
A couple of weeks ago, a lawyer for Robert Gieswein, a Colorado man who was among the first rioters to break into the Capitol, urged Judge Emmet G. Sullivan to keep what is known as the speedy trial clock running in the case. Under federal law, a trial must begin within 70 days of a defendant being formally indicted, though the clock can be paused for various reasons.
Echoing McFadden, Gieswein’s lawyer, Ann Mason Rigby, told Sullivan that the delays were the fault of the government, which kept arresting people, increasing the amount of evidence that had to be collected, processed and turned over to the defense.
Sullivan, however, saw the matter differently. He suggested that the fault lay not in the number of the government’s arrests but in the number of rioters who breached the Capitol.
“The problem,” he said, “started on Jan. 6 itself.”