Kash's Corner - Kash’s Corner: Jan. 6 Detainees Facing Unfair Treatment in Detention, Including Solitary Confinement

All Episodes

Previous Next

Nov. 10, 2021 - Kash's Corner

28:08

Kash’s Corner: Jan. 6 Detainees Facing Unfair Treatment in Detention, Including Solitary Confinement

Large

Audio Only |

Scroll

Time	Text
	Well, hello everyone and uh welcome back to Cash's Corner with Cash Patel.
	Heyan, I'm excited to be back and also excited to feature our new uh shout-outs to our fans at the end of the show.
	So hopefully people will stay tuned for that as well.
	It's an interesting date that we're filming today.
	It's uh July 6th.
	That's six months to the day from January 6th.
	And uh indeed this is we're gonna we're gonna talk a little bit about January 6th.
	So there's about 500 people that have been charged.
	And from what I understand, uh 50 of them are actually in pretrial detention as we speak.
	And uh, you know, there's been I think interviews with uh parents of some that are actually spending time in solitary confinement.
	So let's just explore this whole issue.
	You know, how does this work?
	There's people that uh that have been in uh in detention for the better part of six months almost potentially.
	Having been a public defender and uh former terrorism prosecutor, I've legal literally argued over uh 1,000 bond hearings before state and federal judges.
	So basically what happens is is after there's an arrest of an individual um for any crime, they go before a judge.
	They have to go before a judge because it's the law to see if they should be held in jail until their next trial date or if they should be released on bond.
	And but the law requires two factor analysis.
	One is the person arrested a danger to himself or the community, and two, is that person a flight risk?
	But there's a lot of evidence that both the prosecutor and the defense attorney get to put on at a bail hearing, bond hearing, to for the judge to make that determination.
	Okay, so have you you looked at these cases of any of these cases of the 50 odd people that are actually in pretrial detention that bond has been denied?
	When you're talking no bond, you're talking the most severe crimes that someone can be accused of, murder, terrorism, narco trafficking, weapons dealing, s arson cases where there was danger to life, there was danger to the community, and there's a continued risk with that individual being uh put back into the community.
	And another thing that um actually judges are allowed to look at during a bond hearing is the individual's criminal history or lack thereof.
	If the individual has never been arrested or committed of a crime, that bows well for the defendant to be released back into the community, at least under some form of supervision.
	There are a array of combinations that you can use to ensure the defendant is not a danger to himself or the community and returns for court, such as cash bail, such as home confinement, such as electronic monitoring, such as daily reporting to your probation officer.
	We used to use these in conjunction with each other to secure defendants' bond rights so they wouldn't be held in pretrial detention.
	So in in this particular case, what's what are you seeing that's uh unusual from your experience?
	Yeah, so having argued literally over a thousand of these um on either side, we were able to, when I was a public defender to fashion bond release conditions for many individuals who were not charged with severe crimes.
	A lot of the crimes that I looked at that were being charged as a result of January 6th are not significant felonies.
	They are not crimes involving weapons or danger to persons or property.
	A lot of it is low-level felonies such as uh basically breaking and entering type situations, um resisting arrests, not allowing Congress to perform its official duties.
	Now, if the law was broken all day long, those people should be prosecuted, but there's a step procedure in that process for this bond situation to occur.
	That's the first thing that happens.
	And unfortunately, look what looks like happened here in this case is that there was an overarching political tone to the decisions being made on bond situations for these 500 individuals arrested, specifically as to the 40 or 50 that remain in detention.
	Because once that decision is made to hold a defendant in detention, it is almost impossible to get that person out until they are either acquitted or sentenced.
	Oh, fascinating.
	And so um, you know, there's also examples um that that I'm been made aware of fairly recently um that there's people that are actually spending essentially in solitary confinement, which amounts to I think 23 odd hours per day in you know complete isolation.
	Yeah, it's pretty much the worst.
	Like, you know, having been in federal and state prisons around the country, uh, be it as a public defender or or uh national security prosecutor, um, I've been in what we call segregated housing units or the whole for solitary confinement.
	And those rules for federal detention are very strict.
	It is 23 hours a day in your cell.
	It is no contact with any other inmates or family visitation rights.
	You do not get exercise.
	Most inmates have the opportunity to go to go to what's called a commissary, purchase items like snacks and foods and walkie-talkies and things like that, so that and they're also allowed to congregate together um during the day.
	When you're in solitary confinement, all of those privileges are revoked.
	And solitary confinement is supposed to have been for, you know, the most violent offenders, and also individuals who other inmates might attack, such as a celebrity that has been arrested, like a Jeffrey Epstein.
	And so it's for the protection of the prison population and the individual that's being detained in solitary confinement.
	This seems a gross overreach to be holding, and I read some of this, an 18-year-old and a 70-year-old with no criminal history in solitary confinement as a result of their arrest from the January 6th um incident at the Capitol, when none of them are charged with an aggravated felony.
	I can't find a single one of them that requires a full-on pretrial detention, solitary confinement for months, if not years on end, till that person is adjudicated by the criminal justice system.
	To me, that um should not stand.
	I think it's ironic that I am the one who is talking about um reforming the judicial system, the prison system to benefit to the benefit of the defense.
	Because when I was a public defender and people found out that I held moderately conservative beliefs, I was excoriated because I was told that that position was sacrosanct for the left.
	And it seems that situation has turned 180 degrees on its head just for the January 6th arrest.
	And I just don't me personally don't have room for that hypocrisy in our judicial system.
	The term insurrection has been used, I mean, from the beginning.
	I I don't hear it as much anymore.
	You're right.
	It's a political lightning rod.
	In the community, in the non-legal community, insurrection um paints pictures of war and rioting and death and violence.
	In the legal sense, it's an actual crime to commit insurrection.
	Now, the the attorney general and the Department of Justice are responsible for determining whether or not any of these individuals have met the threshold to be charged with insurrection.
	And not one of the 500 people that has been arrested as a result of January 6th has been charged with the crime of insurrection.
	And to me that speaks volumes because that's what so many people on the Hill and so many people in mainstream media were shouting uh from the tops of their lungs because it fit a political narrative that they wanted to continue.
	And now, as you've pointed out, the facts don't measure up.
	And we have a situation where zero for 500 have been charged with insurrection or any crime rising to that level.
	Um and we've also, you know, unfortunately there was loss of life on that day too.
	And you know, you have to investigate those seriously and thoroughly.
	What's come out recently is that uh the loss of life that occurred on that day was not due to the direct violence of any of the individuals that have been arrested.
	No one's been charged with murder, no one's been charged with manslaughter, and there's countless hours of footage that the Department of Justice and the FBI have not released to the public.
	And more importantly, I understand sometimes that you can't produce publicly everything until the trial process is complete, but that information and that video evidence has been withheld from the defense attorneys for these individuals.
	And to me, as a former public defender and a prosecutor, that is not an application of the law that I practiced under.
	So right, apparently there's something like 14 to 15,000 hours of this footage, I guess, from all sorts of cameras, personal, public, and otherwise.
	That's a that's a monstrous amount of footage to go through.
	And I did hear one of these, uh one of the attorneys for these defendants saying that this footage is actually being compiled into some sort of cloud database that at some point uh they're supposed to get access to.
	Um it just feels like this is something that's gonna take a huge amount of time.
	Another thing I was thinking earlier as you were speaking, you know, these appeals, for example, how long can this take?
	I mean, because these people have been, you know, you know, what I used to tell folks when I was a public defender, um, having to have spent time in solitary confinement with your clients and sometimes having to stay there after the client's uh been taken back to a cell until the Bureau of Prison Guards can come and get you waiting hours, it's not pleasant.
	And I think every federal prosecutor should spend one hour in solitary confinement as part of their training.
	So they know what when they ask a judge to detain someone for months, if not years, what they are exactly doing, what price they are exactly exacting from the criminal justice system and who they're removing from the community and what conditions they're placing upon them.
	I think that would um be a good way to teach individuals who are trying to practice before a federal judge to apply the law fairly.
	But to your original point, it is resource exhaustive to have a defense attorney, to go before a bail hearing, to be quite before an appellate court.
	These things take time and money.
	And most of these individuals that are charged from January 6th don't have the money.
	So what ends up happening is they sit in prison for months and months, and as you know, federal cases can go on for years before there's an actual trial or the case is adjudicated with a plea or a dismissal.
	And the mountain of evidence that you alluded to, you know, that's a whole due process issue, and I'm not gonna pretend to be a constitutional lawyer, but I did try 60 jury trials to verdict in the United States, which is more than most attorneys do in a lifetime.
	The whole point of the criminal justice system is to allow the defense to see all the evidence and not see it at the end, but see it at the from the beginning, the middle throughout the entire case, because if there's evidence in there that shows the defendant is actually innocent or someone else committed the crime, then that's the whole point of due process.
	And if you have 15,000 hours of video footage that you have not provided any of these 500 individuals, um, then that to me is a total miscarriage of justice, and they need to take more time and more energy and more money.
	And by they, I mean the FBI and DOJ to get these defendants access to this material.
	Over the last few years, I've been become aware of you know what's called Brady evidence or this exculpatory evidence that uh uh potentially exculpatory evidence that of course if the prosecution is in in holding, it needs to provide to the defense, right, in any trial case.
	Is that correct?
	So that's the essence of it.
	Basically, Brady is a U.S. Supreme Court case that is one of the fundamental precepts for due process because if it says the government not only is in possession, it goes one step further.
	If the government should know, if the prosecutors and the FBI should know that this evidence exists and don't turn it over, it's a brady violation, a violation of constitutional law for the defendant in that case.
	And this concept was popularized actually when I was running the Russia gate investigation on the House Intel Committee, and we were able to show that the DOJ and FBI withheld exculpatory Brady information to a federal judge in a federal surveillance wiretap case, uh, which eventually got overturned, but that is a gross miscarriage of justice.
	And I think these terms have come to light more since then, and I'm glad because when I was arguing as a public defender that the one thing no prosecutor or no FBI agent should be able to do is to withhold evidence of innocence.
	And maybe it exists in these 15,000 hours.
	I don't know.
	But a defense attorney and the defendant should have a right to examine it.
	So why why are they not providing it to the best of your knowledge?
	What's the reason given at the moment?
	Well, I think they'll say the DOJ and FBI will say we're resource constrained, It's a lot of video footage and we're trying to figure out a way to produce it.
	I would say, having worked at the Department of Justice as a national security prosecutor, um, you have the most awesome resources on planet Earth to bear against the criminal prosecution.
	And if you wanted to get that evidence in what it's been six months now to the defense attorneys, you could figure out a way.
	I've done cases where there have been not gigabytes, but whatever the word is above gigabytes worth of information in records and photography and video and all of that was produced to me when I was a public defender because they had the ability to do it.
	So I don't believe that they don't have the ability to do it.
	I think they are choosing politically not to do it, which is to me the worst thing you can do in the criminal justice system.
	Cash, there's also this element, this is another thing I've you know discovered over the last few years as well, is just these sort of kind of unbelievable power that prosecutors have within the justice system as it exists today.
	Like in fact, most cases that from what I understand, I mean, like some like 96, 97% of cases are decided in pleas, not in trials, which is just not something that a lot of people are aware of.
	At the federal level, you're right, over 95% of cases that are charged at the federal level are adjudicated by a plea agreement from the defense and the government.
	The prosecutors hold all the cards.
	They bring the charges, they have the evidence, they have to meet the evidentiary burden.
	And a lot of times defendants, especially indigent ones or ones that are being represented by a public defender, such as I was, they don't have the means to wait out a criminal proceeding for two, three years long.
	They don't want to, if they're being pretrial detained, they don't want to sit in jail for a month, six months, a year.
	So they cop a plea agreement.
	A lot of times defendants agree to pleading guilty to resolve their situation so it doesn't continue.
	And I think most defendants in those scenarios are doing it just to reach a resolution in the matter.
	Um, if they had the wherewithal to continue fighting it, I think a lot of them would, but most of them don't.
	And the most severe cases when you're in solitary confinement or pretrial detention, that's the hardest client to represent because they are holed up for 23 hours a day and all they want to do is get out.
	And some of these individuals who are being pretrial detained as a result of January 6th in solitary confinement have never been arrested before, have no criminal record.
	But that's a leverage point for prosecutors to force a plea agreement so that they can finally resolve their case.
	Fascinating.
	And you just reminded me, there's another thing that I heard from one of these lawyers, which is that, you know, basically they get, for the people that are in the hole, so to speak, they get no private time with their client whatsoever.
	Yeah, it's uh it's rare.
	So what happens is, and I used to do this, and I'll give you an example of uh when I was a federal public defender, I actually represented an individual charged with terrorism crimes.
	And that person was rightfully so held in segregation or solitary confinement because he was not only a threat to others, but the other inmates would threaten him.
	And the only way to go see them is to schedule an appointment through your through me, and I would go in there and they would put me on one side of the plexiglass in the solitary confinement cell and my client on the other.
	And then we would have a conversation with the prison guards around the outside, locked in this room.
	And then you'd be finished with your conversation, you'd ask for your client to be taken back to a cell.
	And unfortunately what happened to me in this incident is the prison guards forgot I was there and I kept ringing the bell and I got stuck in solitary confinement for three hours.
	Um wasn't the most pleasant experience, and I'm sure that situation happens often to uh defense attorneys and public defenders around the country.
	Yeah, so you're saying, you know, it was uncomfortable for three hours.
	What's it like for 23 hours a day for months?
	I can't even imagine.
	And that and that's why I was saying earlier that and I wasn't saying it jokingly.
	I think if you want to be a prosecutor, you need to understand what it is to deprive someone of their liberty and spending one hour in a cell just so you know what you're asking of the judge.
	And I think it would carry greater weight.
	But obviously that's unrealistic.
	I don't think it's going to happen.
	But I would always remind prosecutors when I was arguing as a public defender, please think about what you're asking for in this hearing because it's going to involve a serious deprivation of liberty.
	And sometimes it was warranted, but many times it wasn't.
	In terms of timeline, what can we expect to see happen with these 500 cases or
	especially these 50 cases where people are being held well one of two things as we talked about these individuals can get so tired of being stuck in solitary confinement or stuck in jail um pending their trial that they come to a plea agreement so that's option A. Option B is probably more likely that many of them don't have the resources to continue the fight,
	the legal expenses or the time to do so and they will plea out as a result even if they're out on bond.
	The others and the small amount that can choose that can afford to fight and can have the wherewithal to do so it's gonna take a long time.
	As you said, going through 15,000 hours of videotape you have to as a defense attorney by law go through every single hour.
	Now I don't know what that equates to in days and times and months but that's a long long time to be reviewing evidence.
	And to do your job lawfully and correctly as a defense attorney you need to examine all that.
	But before all that the United States government and the Department of Justice have to provide you with that evidence and information and I don't see that happening in the near future from from the looks of it.
	So we're it's we're looking at years basically that's what you're saying.
	Multiyear process especially when you tack on appeals and the like it's going to go on for for some time.
	So Cash the other topic I wanted to cover with you briefly today is just this I guess it's our evil uh ransomware hack or a apparent our evil ransomware hack and we're getting you know a lot of very disparate information on one side are evil themselves are saying like something like you know a million accounts or compromised or something like this I think on a blog entry.
	You have Casia, the company that was targeted basically saying that perhaps you know 1500 terminals or computers were affected and basically middle small to medium sized businesses, nothing as big as is being suggested.
	And we have you know the government we have President Biden saying that uh the I guess the intelligence community is telling him they don't have evidence of the Russian government being involved.
	So this is that that's the lay of the land as I understand it.
	What are you seeing?
	Well so yeah so as an individual who used to be in the intelligence community and run operations and then ultimately was the principal deputy um at the Office of the Director of National Intelligence, the number two intelligence officer um in government we have some experience with this.
	It's not the first time the Russians have hacked us and it's not the last time if it was them.
	And here's what's going on behind the scenes without revealing actual classified information.
	But basically the Intel community should be collecting or emphasizing a collection effort on these hacks, the colonial pipeline this one and I believe there was another one that happened in the last couple of months.
	And they should be looking into is there a pattern was it directed by the Russian Federation?
	Was it done indirectly through cutouts in private companies that have connections to the Russian Federation and they should prov be providing all this information to the president and his cabinet that's what's supposed to be happening.
	They should also be they the US government should be engaging the private sector and these businesses that were impacted because it cost millions of dollars and millions of Americans to be directly impacted as to what are your um security systems that are in place, how are they breached?
	Because US government doesn't know everything, but in partnership with the private community it can learn a lot.
	It can also learn what information was stolen, how it was stolen and then it can repair those systems on US government um databases as well as private sector databases so it doesn't happen again.
	So some those are some of the sorts of things that are ongoing or should be ongoing now but I I I don't know since I'm no longer there.
	So 70 million dollars is the the ransom so to speak now what so what exactly I I'm trying it's not really clear what that exactly is for, right?
	Yeah, so the company that, if this reporting's accurate, the company that or the organization that did this hack is saying, pay us.
	Until you pay us, we are not going to get out of your system.
	What happens is they've these hackers go into these private companies and they freeze their entire database, effectively shutting down whatever function that company does.
	Are they a grocery store?
	Are they a supplier of mechanics?
	Do they uh involve themselves in the monetary system, banking system?
	So that immediately impacts millions of people across the US and around the world in those sectors.
	So the company's losing money, Americans are losing the ability to be provided with the services they're paying for, and these hackers know it, and they know a lot of these companies have a lot of money, so they might pay it.
	I mean, as you know, the United States government position is you never pay ransom.
	But private companies don't have to abide by that agreement.
	Right.
	And I mean the company seems to be saying that the impact is a lot less, and of course you might expect they would say that, but that the impact is nowhere near at the level that you've just been describing.
	You know, that it's uh there's isolated, there's basically isolated cases where people are affected.
	I think there's like there's a Swedish supermarket chain that had to go offline their systems for a few days or something like this.
	But yeah, it can vary, sure, depending on the nature of the hack and the and the skill set of those that are conducting the hack and who they're backed by, do they have the financial wherewithal to just sit and wait for their victims to pay up?
	And if you're backed by the Russian Federation, you most certainly do have the financial wherewithal to wait.
	But you're creating a political narrative or or a public story that a lot of people are focusing on, and these hacks don't necessarily cost you that much money to execute.
	And these companies, though, are losing money by the hour.
	So some of them are probably willing to pay millions of dollars, and I think some of them have agreed to pay millions of dollars quietly and directly to the hackers just to get their services back online.
	And I think it would be interesting to see if those private companies had any conversations with the White House or the intelligence community before paying those ransoms.
	Um that's another thing that uh we I hope the administration's looking at.
	So at this point, uh, you know, what's the resolution from the government perspective?
	Well, ultimately is to catch who did this, because as President Biden told President Putin, that if you hack us again, essentially issuing a red line, we're gonna come after you.
	Now I don't know what that we're gonna come after you bit means, but I guess now it's time for President Biden to put up because we've been hacked again, and it looks like at the at the hands of the Russians.
	And this intelligence is um very exquisite and very sensitive, but it's something that's readily available to the president's cabinet, and the IC should be delivering that, the intelligence community should be delivering that uh immediately, the NSA, the CIA, and and what have you.
	So by now they should know largely what happened or have a good idea.
	And then there should be some public statements made.
	Are we going to sanction the individuals responsible?
	Are we gonna raise tariffs on the country that houses them?
	Are we gonna criminally prosecute these individuals?
	Are we going to go out, arrest them and detain them because they are actually a threat to your community and obviously a flight risk if the hack came in from overseas?
	So those are things that you would hope the Justice Department is also focused on.
	And um, they can be complicated cases, but we we make those cases all the time.
	No, I understand it's uh particularly difficult to actually trace the origin in most cases like this, especially when the hackers are proficient.
	We're pretty sure from what I understand, we're pretty sure that they are Russian hackers, but as to you know, sort of who's really backing them or not, and and those kinds of details might be almost impossible to figure out.
	Sometimes it's very difficult.
	Most of the time, in my experience, if you want to find out and you want to expend the resources, the energy, and the manpower to do it, you can figure it out.
	And there's multiple ways to do that.
	You have Congress who has access to all the sensitive intelligence through the intelligence communities, and they can conduct their own investigations and request their own information for the hacks.
	And then you have the executive branch, which um conducts investigations through the Department of Justice and the intelligence community and then they can cultivate that information and either put out a piece of it or a summary of it or let the American public know what we're doing as a result of it.
	But um I just don't believe there is enough of a focus like there was when I was running the IC against hacking against Russian and Chinese and Iranian hacking capabilities which are large and impressive.
	But we under President Trump made sure that we collected against those threats and made those a priority.
	If you don't make those a priority you're not collecting against them and you're looking left when the threat's coming in from the right.
	So Cash I think we've run out of time for today but uh you know before we finish up I think we do have to speak with our fans as you were saying at the beginning and in this case it's not just one person you've noted it's actually a whole fire station of folks.
	Yeah as uh we're very fortunate Jan that our comments have been flowing in and we want to start giving special shout outs to our fans.
	So today's shout out goes to Fire Station 13 in Columbus Ohio.

▲