#JulianAssange hearings Part 2 - Day 6 (Thread)

Court is scheduled to sit from 10:00 am.

Testimony of Eric Lewis, US criminal defence lawyer w/ experience in nat sec cases, to continue from yesterday after video link tech problems ended the hearing early.

via @SputnikInt ImageImageImage
James Lewis QC (prosecution) is cross-examining defence expert Eric Lewis. James Lewis QC is suggesting that solitary confinement doesn't necessarily increase likelihood of death and that quality of life in Bureau of Prisons has improved due to a lawsuit (clearinghouse.net/detail.php?id=…)
*The sound quality coming from E Lewis is v. poor for those of us viewing remotely*
Q. “Do you agree that Cunningham litigation has improved matters regarding the secure housing of inmates with mental health conditions?”

A. “It has improved in certain ways and in certain ways has gotten worse”
Q. All the COVID statistics you have provided regarding prisons other than the ADX is irrelevant isn’t it?

A. If at some point he was sent to another facility there is nearly 12% of the federal prison population has COVID...
... so if he is convicted and sent elsewhere that has COVID it is relevant but that remains to be seen.
The discussion has now turned to sentencing and whether Mr Assange is likley to face a life sentence or not. There is discussion of US federal sentencing guidelines & other cases where people were convicted at trial. In the Sterling case the 'D' faced a 130 yrs but got 42 months.
Terry Albury was sentenced to 49 months in prison Espionage Act, James Lewis QC tells the witness.

Q. What is the longest sentence ever imposed for unauthorised disclosure to the media?

I am going to ask you to agree that it is 63 months.
Eric Lewis notes that in certain pure espionage cases the sentences have been lower but that in mixed cases (such as Assange case - which he also said was unprecedented) life sentences have been imposed.
Now they are discussing the fact that judges have life tenure to ensure independence and what kind of sentence they should expect from the judge Mr Assange is likely to face in court.
Short break to reconvene at 11:15.
The discussion between prosecutor and defence expert is now focusing on case law in the US and the "balancing act" between the 1st amendment of the US constitution which protects a free press and free speech and national security needs of a state to protect society from harm.
James Lewis QC to Eric Lewis

“I challenge you to present one single precedent to say that publishers can’t be prosecuted”
[Eric Lewis presents case names but the sound quality is so poor I didn't hear them properly]
Q. The US supreme court has never held that the first amendment precludes the govt from prosecuting third parties, including journalists, for publishing national defence information.

Do you agree or disagree with that statement?
A. It has never been presented with that specific case but there are related cases that have resulted in decisions affiriming the "an unbroken line of practice of non-prosecution".
They are discussing the 5-4 decision in Branzburg v. Hayes, 408 U.S. 665 (1972), a decision of the US Supreme Court invalidating the use of the First Amendment leagle.com/decision/intnc…. Though it didn't involve prosecuting a journalist for disclosing national security information.
They are now discussing the testimony of defence expert Professor Feldstein on the fact that the Obama administration never made a decision to prosecute Mr Assange (rather than a "decision not to prosecute").
Eric Lewis challenges the assertion that (based on public reporting) there was merely a decision not to prosecute. He says it comes down to understanding the process by which prosecution decisions are made.
Cross-examination of Mr Lewis has finished.

Re-examination begins with Ed Fitzgerald QC asking questions for Defence.
Q. You've referred to your knowledge as derived from the newspaper sources quoted in numerous articles... and TV interview [with Sara Sanders says Obama did nothing about Assange we - Trump admin - did something] regarding the Obama admin's failure to prosecute Mr Assange.
A. And Eric Holder interview where he said they would not prosecute publishers of information who are not directed by a foreign power.
They are now going over quotes from Obama era (like Matthew Miller vianovo.com/people/matthew…) and current era justice officials discussing the NYT problem. Including a statement from an official who said DOJ "have all but concluded" that Mr Assange won't be prosecuted.
Now discussing US AG Bill Barr's Memo espousing the unitary view of presidential authority:
“[The President] alone is the Executive branch. As such, he is the sole repository of all Executive powers” and “while the President has subordinates . . .
... who exercise prosecutorial discretion on his behalf, they are merely ‘his hand.’” wsj.com/public/resourc…

A profound shift in the view of the DOJ and presidential authority, argues Mr Lewis.
Mandela rules on treatment of prisoners:

"Rule 44
For the purpose of these rules, solitary confinement shall refer to the confinement of prisoners for 22 hours or more a day without meaningful human contact" solitaryconfinement.org/mandela-rules
Mr Lewis says that from his experience a prisoner or detainee, including at ADX, who is in administrative segregation and subject to SAMs, would fall under the above definition of solitary confinement.
LUNCH BREAK TILL 2PM BST
Defence team, Mark Summers QC in the middle, walking back to Court amid lunch time. Image
Vaughan Smith, of the Frontline Club, says:

"too few journalists have woken to the fact that [the prosecution of Mr #Assange] is the case of our time relating to the ability of journalists to report on things that governments don't want us to hear"

via @SputnikInt
Eric Lewis testimony is finished.
Thomas Durkin, witness for the defence, attorney to practice in a number of states including Illinois, and in federal appeals courts up to US Supreme Court, has been sworn in. Practicing for 47 years.
Durkin: "The biggest problem is that you cant discuss anythign you learn in a classified setting wit the defendant, unless government declassifies the material"

You must have a security clearence in the "SCIF" and can't discuss with the defendant at all.
Adds it is very difficult to prepare pleadings for court using the computers provided in the Sensitive Compartmented Information Facility as can't prepare pleadings referencing classified docs outside of the SCIF.

"An incredibly difficult handicap to deal with", Mr Durkin says.
Mr Durkin: "A very likely possibility" that Assange will face a sentence that will last the span of his lifetime should he be convicted in the US. "It would be realistic to say that Mr Assange would be looking at a conviction on all counts at a level 38, 40, or 43..."
"He does [realistically] face a sentence in the range of 30 years or 40 years", which would be an effective life sentence even if a literal life sentence isn't handed down, "if he goes to trial and is convicted".
"There is a built-in incentive to plead guilty in the guidelines that is where there is a suggestion in the report I referred to in the National Association of Trial Lawyers to what is referred to as a “trial tax” in other words you are penalised for going to trial."
"Most clients - if you are honest and blunt with them about the consequences- simply can’t risk that type of exposure, and take a plea that is put in front of them because they cant risk the exposure of going to trial”.
“My trial practice has been reduced dramatically over the past 10 years.”

[Court has risen because the witnesses video link screen has frozen]
WikiLeaks editor-in-chief Kristinn Hrafnsson, during the lunch break, noted the continued lack of NGO observer access to the hearings & the testimony evidencing the political nature of the prosecution against Mr #Assange.

via @SputnikInt
John Shipton, #JulianAssange's father, summarised his view of the key issues discussed during the morning cross-examination & re-examination of Eric Lewis.

via @SputnikInt
Tech issues caused court to rise again but it has since reconvene.

Examination in chief is over and cross is about to start.
Lewis QC: Having to view classified docs in a secure location is inconvenient or very inconvenient but nothing more than that?
Durkin: “No its more than that because you can’t discuss it with the attorney...
... That’s true only in so far as it goes but there is a [continuing problem] to discuss what you learn with the Defendant in the classified setting”

The government "has the ability to declassify certain evidence" but the Defendant wouldn't be provided access to classified info.
“I’m not suggesting that the only trial tax is the three points off. What I am suggesting is that [one is built-in] inherently into the guidelines. But I am also saying is that [how draconian so many of the guidelines] are that when the government puts something...
...on the table that is far below the guidelines that is far below the maximum penalty it is very difficult then to go to trial”, Mr Durkin.
Asked about whether there was a decision to prosecute or not:
"It seems to me that one there was a sound reason for the Obama [Attorney General] not to prosecute what no one has said is that nobody every declined the case. My case is that the case was probably declined....
... But that doesn’t mean they can’t reopen it…. And that is what they did [Donald Trump’s political purposes] the grand jury was not the one who first charged Assange it was the US attorney who first filed the complaint.
Q. Let me understand the basis for your belief. Not based on first hand knowledge?

A. No of course not, because the government hasn’t waved their deliberation process privilege.

Q. So all this derives from newspaper articles?
A. Of course.
Q. And not based on discussions with any of the participants who are quoted in the newspaper reports?
A. Of course

Q. Are you being paid?
A. Yes, by the hour

Q. How much?
A. Only if the judge will redact it so my other clients don't see
[Laughter]
I won't press it
**END OF CROSS- EXAMINATION**

Ed Fitzgerald QC is re-examining.
"I’ve represented people in a number of high-profile investigations and I’ve seen myself that has happened considerably. It is not uncommon for leaks to occur and if the gov't doesn’t like the way the reports are coming out...
...they will see that other leaks are being made to correct that."

"If the Obama admin had intended to prosecute Assange it is my opinion that they would have corrected those stories in some way" Tom Durkin
Examination of witness is over - hearing over

Tomorrow next two defence witnesses expected to be called are:

1) John Goetz
2) Daniel Elsberg (late afternoon)

But they may seek to insert another short witness in-between the two.
**COURT ADJOURNED**
WikiLeaks editor-in-chief Kristinn Hrafnsson gives a quick recap to a crowd of press and supporters outside of the court, following the conclusion of Tom Durkin's testimony (see above for details). ImageImage
WikiLeaks editor-in-chief Kristinn Hrafnsson on the "Trial Tax" described by witness Tom Durkin today:

“What he pointed out in his testimony and written submissions was the simple fact that the rate of jury trials are down to 3% when it comes to criminal cases in a state and...
federal level. And one must wonder what kind of justice is that. He outlines the strategy that is behind it, basically the threat of decades or even consecutive life sentences that are presented to the accused. It is almost like a blackmail to get the accused or defendant to..
...a plea. This is the situation we are seeing more and more.

In terms of Julian he was asked ‘would mean that he would be pressured to reveal his sources as part of a plea bargain?’ - and he confirmed that would probably be the case. So, this is the kind of scenario that...
...Julian would have to face. He would be presented with the options: Do you want to spend the rest of your life in prison here or Do you want to plea and then you have to give us something?...
...This is the kind of justice system that Julian Assange is faces or the so-called justice system if he is extradited.” - Kristinn Hrafnsson
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1 Oct
#JulianAssange extradition hearings Part 2 - Day 18 (Thread)

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via @SputnikInt

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#JulianAssange extradition hearings Part 2 - Day 17 (Thread)

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via @SputnikInt

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#JulianAssange extradition hearings Part 2 - Day 16 (Thread)

Court is commencing now at 10:00 BST

via @SputnikInt

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#JulianAssange extradition hearings Part 2 - Day 15 (Thread)

Court is commencing now at 10:00 BST

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via @SputnikInt
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#JulianAssange extradition hearings Part 2 - Day 14 (Thread)

Court is due to sit at 10:00 BST

(Another chilly Friday morning)

via @SputnikInt
John Shipton and Stella Morris' Mum arrive at the Old Bailey.
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24 Sep
#JulianAssange extradition hearings Part 2 - Day 13 (Thread)

Court is due to sit at 12:00 BST

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via @SputnikInt
Joseph Farrell, WikiLeaks ambassador, arrives at the Old Bailey.
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