Thread by @ZoeTillman

Hello from Chief Judge Beryl Howell's courtroom (she's in-person, I'm on the remote line), where sentencing is set to begin soon for Jan. 6 def Jack Griffith. Griffith's misdemeanor plea had prompted Howell to question if rioters were getting off too easy: buzzfeednews.com/article/zoetil…

Govt wants 3 mos incarceration, one of the stiffest sentences for a misdemeanor plea: s3.documentcloud.org/documents/2108…

They'll argue he lacks remorse and made light of Jan. 6; they cite our prev. piece about the Donald Trump-as-shooter video game he was promoting: buzzfeednews.com/article/zoetil…

Griffith's lawyer Heather Shaner will argue for probation, she wrote in the sentencing memo that he was remorseful and has "learned from his impulsive behavior" s3.documentcloud.org/documents/2108…

They'll also be arguing a lighter sentence is more in line with outcomes in other Jan. 6 cases

Howell is finishing up a hearing in another case, here's the public dial-in info for her courtroom if you'd like to listen along to Griffith's sentencing:
Toll Free Number: 888-557-8511
Access Code: 3318202

They're going over the presentencing investigation report to make sure it's accurate. Griffith's lawer Heather Shaner notes the only change is he's gotten a new job, at an automotive shop (couldn't hear the full name) in Gallatin, TN

AUSA Jamie Carter is up first, asks if Howell has questions for the govt. Howell notes this is her first sentencing in the Jan. 6 cases, and says yes, she has some questions for the government

Howell dives in, noting the govt used very strong rhetoric in filings to describe the riots — "attack on democracy," etc. — but let Griffith plead to a low-level misdemeanor and isn't even seeking max sentence of 6 mos: "It seems like a bit of disconnect there, isn't there?"

Howell describes govt's brief as "schizophrenic" in describing the severity of the riots and then referring to some conduct, like what Griffith was charged with, as trespassing.

"So how am I supposed to reconcile this extraordinarily strong rhetoric with a petty offense charge?"

AUSA defends the language, says the govt has looked at each person's individual conduct on Jan. 6 in deciding what to charge, pushes back on idea that the reference to trespassing is somehow downplaying seriousness (not "just" trespassing, she says)

Howell moves on to the issue of what sentence will deter some future attack like Jan. 6, she continues to question charging choices: "Do you believe that is sufficient for general deterrence, giving them basically the most minimal of federal criminal charges?"

Howell notes that for Griffith's codefedant Eric Torrens, the govt is asking for just two weeks incarceration, says she's still trying to understand why the govt is making these choices about charges/pleas/sentencing reccs

AUSA says 3-month recc for Griffith reflects his lack of remorse, using the crimes of Jan. 6 to promote his video game

Howell finds it a "bit of a puzzle" that DOJ incl. a footnote explaining the govt recc'd probation in some Jan. 6 cases but doesn't intend that as a default; it refers to a special fast-track early plea program in another circuit, but AUSA says not aware of that happening here

Howell is probing how DOJ can advocate for different sentences in Jan. 6 cases where people are pleading guilty to the same offense. AUSA explains the govt recc'd probation in a few cases where people took plea deals earlier in the investigation than others

AUSA says when defendants agreed to plead guilty (how early in the investigation + how long after receiving an offer) is just one factor the govt is looking at in deciding what sentence to argue for

Howell moves on to restitution — she notes b/c the plea is for a class B misdemeanor/petty offense, the court only has authority to approve restitution agreed to by govt/defense ($500), but court could have ordered more if he'd pleaded to the class A crimes he was indicted on

Howell says she finds govt's explanation for what costs the restitution is supposed to cover ($500 towards ~$1.5M in damage to the Capitol) "baffling" — she notes Congress approved hundreds of millions of dollars to cover costs of law enforcement response to Jan. 6 alone

AUSA James Pearce is up to discuss restitution, says the govt continues to evaluate the costs of Jan. 6 and that, for instance, the money appropriated by Congress for law enforcement costs incl. post-Jan. 6 protection that wouldn't fall under costs for purposes of restitution

Worth noting that Howell's questioning about how the class B misdemeanor plea limits the court's options at sentencing re: restitution as compared to a class A crime is similar to Judge Amy Berman Jackson's questions about that re: supervised release: buzzfeednews.com/article/zoetil…

In explaining how the govt came up with $500 for misdemeanor/$2K for felony plea deal restitution amounts, Pearce explains they took the govt's estimate for how many people illegally went into the Capitol on Jan. 6 — 2,000-2,500 — and came up with a calculation from that

That tracks with @ryanjreilly's prev. reporting explaining why the original estimates we got of ~800 people going into the Capitol was way too low huffpost.com/entry/feds-mad…

Howell questions why the govt isn't asking for a period of probation to enforce a restitution agreement (since supervised release isn't an option) - she says it's the first time she's seen that in a case involving restitution

Basically, it's a novel question in the DC Circuit whether a judge can impose a "split sentence" for a class B misdemeanor — incarceration + probation — and Howell is saying that this creates a messy situation re: crafting a sentence to ensure compliance with paying restitution

The theme of this hearing so far is Howell asking the government: "wyd"

Howell notes the govt in other cases typically asks for probation/supervised release to enforce restitution, and asks why it's not doing that for the $500 restitution agreements for Jan. 6 misdemeanor pleas — is it b/c the govt thinks these defendants are more trustworthy?

AUSA swiftly says no that's not the reason, notes that holding a defendant to $500 is different from a case involving many multiples of that, and notes post-incarceration supervision is an option for felony cases where the restitution agreement has been $2,000

The govt's position is that a split sentence of incarceration + probation is allowed for a class B misdemeanor, but hasn't advocated for it since it's an unresolved question in this circuit. Howell asks if they'd defend it before the DC Circuit, Pearce says he believes they would

Griffith's lawyer Heather Shaner is up now, she says he did express remorse after the riots and isn't a political activist, noting he wasn't registered to vote in November. She blames his "exuberance" in videos in part on impulsivity as a result of ADHD and internet addiction

Howell asks about Griffith's promotion of the Donald Trump-as-shooter video game, Shaner says it's no different from any of the other "horrible" video games that exist online except the monster characters are antifa or those "considered left-wing" and the superhero is Trump

Shaner says that if the judge orders probation + community service, Griffith is interested in starting a food bank in his city of Gallatin, TN, drawing on his past work experience in the food services industry

Howell is not buying the argument that he acted impulsively: "He intentionally made his way from Tennessee to DC on Jan. 6 and he described his action as "the cavalry is coming." He said he wanted to storm the Capitol, which he then did."

Howell alludes and then confirms she's alluding to Anna Morgan-Lloyd expressing remorse and reading books and getting probation and then downplaying what happened on Fox News. That was Shaner's client, and Shaner says M-L got "played" by Laura Ingraham in that interview

Shaner says Morgan-Lloyd wrote a letter to Judge Lamberth immediately after that Fox News appearance explaining what happened. Shaner says M-L's comments on-air didn't reflect a lack of remorse but "stupidity" to go on that forum

Shaner says Morgan-Lloyd doesn't want to go back on-air to explain herself because it's too "raw" and has rebuffed other interview requests. Shaner says some of her clients are talking to the House Jan. 6 committee but M-L hasn't wanted to do that so far

Howell says she'll make this part of the transcript available to Judge Lamberth. Shaner says she can also send him Morgan-Lloyd's letter, but hadn't done that so far since he hadn't asked about it

Griffith is up now, he's reading from this letter that was attached to the sentencing memo that Shaner filed: s3.documentcloud.org/documents/2108…

He says he knows what he did was a mistake and will never do it again

Griffith, reading from his letter: "Although I may not have personally participated in any violence or vandalism, the fact that I can be seen smiling and gleefully cheering on as our democracy was under attack is downright disgraceful."

Griffith says he knows he acted arrogantly at first, "I concede that." He says he understands that but for people like him participating in the riots, there wouldn't have been an "attempted coup" and has learned his lesson

Howell jumps in, asking what exactly are the lessons that he learned, since he was still posting about election conspiracy theories after Jan. 6. Griffith says regardless of what you believe, violence isn't the answer and what happened was not appropriate

Griffith finishes with a plea to Howell to spare him "the cold lonely nights" of incarceration. Howell moves right into announcing the sentence, she's beginning by going over all the factors she has to consider

Griffith had joined onto the arguments of his codef Eric Torrens, whose sentencing memo states that the court sentences "the offender not the offense" — Howell says that makes for a good quip but is fundamentally flawed, that the court must consider the seriousness of the offense

Howell notes, as discussed at length earlier, that the class B misdemeanor plea ties the judge's hands as far as restitution (so it'll be the $500 agreed to in the plea agreement)

Howell quotes rhetoric the govt uses in its sentencing memo — "grave threat to our democratic norms" — and then contrasts that with charging choices and references to things like trespassing: "No wonder" some parts of the public are confused about how to understand what happened

Howell: "This is a muddled approach by the government."

Howell: "You can believe what you want, you can say what you believe. But what you say in the context of the conduct on Jan. 6 also provides a window into your mindset that day ... important clues to this court as to the need for general and specific deterrence"

Howell notes a video that Griffith made blaming media for Jan. 6: "You're not a lemming, Mr. Griffith, you can think for yourself. You have to be accountable, take responsibility for your own actions, don’t blame the media."

Griffith jumps in: "I do, your honor."

Howell: "It’s hard to tell, Mr. Griffith, whether your remorse expressed today is gonna stick. Or whether it is a serious moment because you’re awaiting sentencing."

Re: Griffith's statements after Jan. 6 expressing regret that the mob didn't succeed, Howell said that raised a red flag about the need for deterrence. Griffith asks to speak again, says he didn't mean that he wanted violence, thought what would happen was more debate in Congress

Howell says deterrence is especially important in Jan. 6 cases because people can't think that they can gather a mob in the future to challenge election results. She talks about how critical the peaceful transfer of power is to our social contract + authority of elected officials

Now: Chief Judge Beryl Howell sentences Jan. 6 defendant Jack Griffith to three years of probation, rejecting the govt’s recommendation of three months incarceration. She explains that her decision in rooted in the govt's choice to seek probation in other similar cases.

Howell: "I do agree with the govt that probation should not become the default. But at the same time, given the govt’s prior recommendations of probation in circumstances with defendants similarly situated, I'm going to impose a probationary sentence here."

Howell is essentially saying the govt is to blame for a sentence that's below what prosecutors asked for in this case. Earlier in the hearing she called the govt's approach to Jan. 6 misdemeanor cases "muddled" and highlighted that courts are supposed to be mindful of disparities

And that's a wrap on this doozy of a Jan. 6 sentencing. Howell has been outspoken in denouncing the riots, but today held the govt's feet to the fire for a "muddled" approach that she believes is tying judges' hands re: sentences that would deter something similar in the future

A judge blasted prosecutors' "muddled" approach to Jan. 6 cases, rejecting prison time for a Capitol rioter and saying the govt basically undermined its own case.

"No wonder" there's still public confusion about the severity of the riots, the judge said. buzzfeednews.com/article/zoetil…