Thread by @McAdooGordon

Watkins case. So we are back in court with this Jan 6 case. There is a superceding indictment that hasn't been made public yet, but the PD says they have a copy and they waive the reading of it and plead not guilty to all the (new" charges.

Now they are arguing the "crime of violence" issue. The PD says the govt is misapplying the Stokely case, which is about taking property from a person, not inanimate property.

Now the judge is asking the PD about the way govt is using the definition of "federal terrorism" as a sort of substitute for "crime of violence." PD is pointing to the bail statute as the thing that needs interpretation.

PD is pointing out another judge in the courthouse this morning did find that this property statute created the rebuttable presumption, but did not detain the person in the end.

AUSA is now arguing the VERY technical argument about the time period (10 years) creating an overlap of the statutes that are being analyzed. It's ten years v. ten or more years.

The whole thing here is about whether there is a detention hearing in the first place (because the govt can demand it) and whether a presumption of detention applies. In essence, it gives the govt a default "win" position that the defense can overcome to obtain release.

The judge is still concerned that the detention statute is really talking about violence and is there really violence (force) issue when the property deprivation is not violent in fact. The AUSA is arguing the definition of the words as the issue.

The judge is pointing out the PD showed in her brief a long line of cases of basically graffiti cases that were prosecuted under this same statute and there's no violence really there.

The AUSA is now making a ridiculous argument that spray painting a statute is violence because although the force to spray is minor, the damage is substantial. He says the perspective should not look at the actor's force, but the resulting damage.

This is not a normal person's definition of "force" or "violence" but there are some analogies in the case law that look that way.

Judge finding the govt is technically correct under the "categorical approach" (what is addresses; not what factually happened) that the crime charged is 1 of "violence" and carries a term of up to ten years & so satisfies both parts of the test under the bail/detention statute.

This means he will find the govt can request the detention hearing and is entitled to a presumption of detention. It does not mean he is going to detain Watkins. He has to do the rest of the analysis to see if -even w/the presumption- there are circumstances that allow release.

Based on my analysis of the statutes, I think he is right about the technical analysis of whether the presumption applies based on the "categorical approach," which is the one that has been relatively recently proclaimed the "correct" approach by the higher courts.

Judge pointing out that a number of the crimes listed in the terrorism statute DO have penalties less than ten years, so it's not like they are all included; that is a actual limitation on what cases would be included in the presumption.

Judge is pointing out this result does not change the presumption of innocence (which the detention statute says still stands); it's a presumption about detention.

So, to be clear: he's avoiding the "crime of violence" issue altogether although they've discussed it (which he says - correctly - is a harder case), he's going on the section about terrorism cases and applying the literal/technical analysis to reach the presumption result.

I told this stuff was technical! 🙃

So, he's formally said he's applying the presumption and is now hearing the govt's evidence as to why she should be detained.

Judge asking about the "quick reaction force." Wants to k now if govt has evidence that in fact there was a qrf in place?

AUSA first says they have evidence of the planning. Judge says yeah, but do you have actual evidence that there was a qrf - people with weapons outside DC who could enter with weapons.

AUSA says that's their "working understanding" investigation is still ongoing.

Judge says, okay, but do you have evidence of it? He offers to go into a non-public session so the AUSA can make a factual proffer on this issue and not compromise their investigation. AUSA says he'd appreciate that. So, now the public is muted and we're hearing "music."

So you can understand: on Wednesday the parties were focused on this highlighted section in (f) about a "crime of violence."

And then what happened is that the govt had a better argument under section (e)(3)(C) instead that the crime charged (18 USC 1361) is a crime listed in 18 USC 2332b, which also creates a (rebuttable) presumption that detention is the correct result.

So, again, super technically, the govt's motion may be moot because it is not necessary for (e)(3)(C), but the end result is the same - the judge is going to hold a hearing and apply a presumption that detention is warranted buy Watkins can overcome that.

Judge is now back. He's asking the AUSA about some evidence the govt presented earlier - specifically things found in the search of her home. He's asking about the "recipe" for a destructive device mentioned in their memo.

Recipe is one from "The Anarchist's Cookbook" from the 1970s. AUSA points out Watkin's bar is called the Jolly Roger, which is the name of the author of the Cookbook. Judge says it looks typed up - not from a book. They sent him the pages on Tuesday.

AUSA says they don't have any information about the creation of the actual pages.

Judge asking about exculpatory evidence. AUSA says still processing all the video. They don't see any evidence of her assaulting an officer.

But, AUSA points to Watkins's media quote saying "we" held our ground when the officer's pushed the crowd. He's inferring the contact with officers. But agrees the govt has no other direct evidence of this.

AUSA says they have problems with PD's recommendations for release. Judge says he'll hear those now.

PD says W could reside with her partner; AUSA says partner is in militia (although partner did not come to Capitol) and court can't fashion restrictions on partner. Also exposed to "environment of intoxication" because of her job.

AUSA says Watkins case is not like the others who just came in or got caught up; she planned, etc. Arguing that she follows the Oath Keepers who is still saying that the current govt illegitimate. He's saying her zeal & conviction is more, not less now that Biden is POTUS.

He's making the point that she believed what she did was correct and she was arrested before Biden inaugurated, so now that he's in office, it's more heightened. Pointing to Watkins' quotes about fight and die & Person 1 (Oath Keeper leader)'s ones quotes.

Judge wants to know date of the quotes. AUSA says Jan 12. PD up now.

PD saying Watkins and partner now disavowing Oath Keepers and militia. PD pointing out -correctly- that DC courts all the time require no guns in the home - person and all family members; red herring she says.

PD pointing out that "Jolly Roger" is a pirate (actually it was a pirate ship, but ok), and the bar is a pirate themed eatery, so that's just a coincidence that makes things look worse than they actually are.

Judge still concerned with Watkins having the recipe. PD says it's old; not found on her; she didn't have it on her person; no reason to think that she had it other than as an item of general interest; no info from govt about where found - could be in the bottom of a box.

Judge asking govt if AUSA knows where the recipe was actually found. Govt is having technical problems; they are seeking information; it was found in her apartment pursuant to the search warrant.

AUSA also clarifying that there is video showing Watkins treating another person with injuries at the scene (Judge had asked for any exculpatory info.) PD saying there are also texts where she's saying to be "peaceful" & not use deadly force.

PD letting judge know that the AUSA's specifically drew her attention to Brady (exculpatory) information they gave her so PD would not miss it. PD says there is evidence that she obeyed all officers that day; when curfew announced, she left, for example.

PD explaining Watkins using her medical training during the day.

PD explaining Watkins thought she was there to keep up "law and order;" she says that's a "misguided" perhaps, but her texts after Jan 6, show she thought she was there to keep apart any groups engaged in altercations.

PD talking about a fellow Trump supporter the day after the riot who talked to Watkins and Watkins was talking about how there were "idiots" who created the problems at the riot and it got out of hand.

Judge interrupts and is asking about facts the govt alleged in the indictment - people talking about "getting it done," and a "citizen's arrest" that day and what the plan was that day. PD says but Watkins is NOT the one saying those things.

PD pointing out Watkins is not personally taking actions to break into the Capitol. Unlike another case of a woman whom Judge Howell released who used a battering ram to break in. By contrast Watkins walked into; no evidence PD has seen that Watkins personally acted violently.

PD pointing out that these Jan 6 cases are getting different release decisions because they are going before different magistrates around the country, but there are specific ones where the person has been release who personally engaged in violence.

Jones case broke into area near where Ashley Babbit was - not detained; another one - a person with a tazer who was also not detained. Judge asking for a break now. Watkins asks to speak to PD.

The PD is doing a great job here - refocusing the judge on what THIS defendant actually did, not what other people in the crowd are doing or saying; and comparing her situation to that of others who engaged in worse behavior and have been released.

PD is back, again telling the judge about another female's case who was released and Chief Judge Howell denied govt's appeal of that case. These cases involve assaults on officers and actual violence.

Judge wants to know the gov't theory about why Watkins should be held in light of those disparities.

AUSA says she's part of a conspiracy and under a "aiding and abetting" theory is responsible for the acts of all in that conspiracy. He says she's there as a medic so others can act. The other cases don't involve conspiracy, recruitment, training, etc.

Observation: The govt's theory on this indictment is that it's worse conduct than the "on the spot, got caught up in it" folks.

AUSA realizes he's losing the judge, so now he's talking about the qrf again, saying she had that as a fallback & how frightened the legislators were. Now he's contradicting himself quoting her text that she's not a medic; she's a soldier.

PD was ready for this - she's now citing the other Jan 6th conspiracy cases (not from this indictment) and planning cases where the govt did not even seek detention or where the person was released. PD is just reeling off case after case.

PD now talking about the case this morning on this same statute; person used aerosol spray on officers, using a bullhorn telling people to bring weapons and gas masks, pushing the line; she was released by Magistrate Nichols this morning.

PD says the argument Watkins is more dangerous than these others is not supportable. Tells judge they have rebutted the "barely there" presumption (due to 10 year rule); reminding court the test is whether Watkins is a danger now, not on Jan 6. Watkins wants to talk.

Judge warning what she says can be used against her. Watkins says she's appalled at what the fellow Oath Keepers have said after Jan 6. Says she's disbanded her militia; done with that lifestyle. "I did it out of the love of my country, but I think it's time to let that go."

She's rambling a bit; says she's humbled and humiliated to even be here before the judge. She says she needs to focus on her small business; she's going to cancel membership to Oath Keepers upon her release, however, that happens.

PD addressing the "stick to the plan" text; says it was early in the day on Jan 6 when the plan was a rally and security for it. As I said, this PD is doing a really fine job for Watkins.

Judge wants to know where Watkins falls with the other 7 indicted individuals - AUSA says she's a leader. Recipe found in a loft next to bedroom on or in a box w/o a top.

Judge now saying he has detained Caldwell - one of the other defendants in this indicted case (Mehta has the whole case, of course). He has physical violence actions in his fact pattern and evidence destruction. PD points out two of the others were released.

Judge leaving the bench for ten minutes to decide what he wants to do.

Judge is back, but Watkins video feed has tanked, so they are trying to reconnect to the jail.

Watkins is back now.

Judge: based on indicted charges case qualifies for the rebuttable presumption.

Going to factors: She's not a flight risk.

So he's going to "dangerous" to the community.

He's applying the statutory factors: Letters of support/character, service, no record, small business owner.

Counter facts: She belongs to a "militia" and is a leader; she's a member of the "Oath Keepers." and Govt thinks that group believes a shadowy conspiracy is corrupting the govt.

Judge says that may be hyperbole, but might not be.

She recruited and planned; not just a foot soldier. Part of organizing others into larger groups to come to DC

Turning to offense facts: historic event, threat to democracy; not just a participant - she was a leader in the effort.

Discussing texts about being "Fighting fit" by the inauguration. "urban warfare" "training camp" "militaristic training and preparation" in case election doesn't go to Trump. "Our way of life as we know it would be over."

Someone who is not just expressing "dissent." but rather willingness to "fight, kill or die."

Now talking about qrf. Perhaps the most disturbing part of the case to him; he said this in Caldwell case also he says.

Stationing people with weapons outside to DC to come into DC with weapons.

Then she comes into DC with camo, bullet proof vests, helmet, knuckle protection, etc. She says that those were for security, but she made her way to the Capitol and "forcibly" entered.

Now he's talking about the comms on the walkie-talkie: This is what we fing planned for; get it Jess; citizen's arrest comment; probable cause of treason, etc.

Whole point was to disrupt the lawful functioning of the Congress. Shows dangerousness and willingness to engage in violence.

Search supports this he says: not holding guns against her, but is bothered by recipe, tactical gear, zip ties, etc. Things he thinks relate to the "citizen's arrest".

He thinks the offense and its facts favor detention. He agrees that she engaged in no actual violence herself, but the planning and participating in the goal of the conspiracy & the qrf again works against that.

He adverts to argument that Watkins was responding to possibility that DJT would invoke Insurrection Act; says that puts to bed the view that DJT's words did not affect people's actions.

Just "can't get there" that any conditions he would impose on her would assure her return to court or that she would not be involved with dangerous groups again.

Says they can't monitor her communications and even though she's disavowed Oath Keepers today, he can't be sure she won't be involved again, so he's going to grant the govt motion and detain her until trial.

Court is under a covid order not having trials until March 15 at least and other defendants in this indicted case haven't even been brought before the court yet, so as far as setting a trial date, they are kind of nowhere. There's a status on the 12th it sounds like.

And that's the end.