Feds coerce Jan 6 defendants into waiving right to appeal jail time

Violate ‘overcharging’ ban to prevent objection to disparate sentencing

Summary: A perfect storm of deep state actors hits Jan 6 protestors

• Local police hold open Capitol doors for many protestors
• Local police fail to publicly acknowledge allowing protestors into Capitol
• FBI agents hunt protestors down even when evidence indicated they didn’t know Capitol was closed to public
• Federal prosecutors add redundant charges and unprovable charges
• Prosecutors use extra charges to coerce protestors to “confess” to knowing Capitol was closed to public
• Judges gave every Trump inauguration protestor but one no jail time, even when violent
• Prosecutors require Jan 6 protestors to waive right to appeal disparate sentencing
• Judges send peaceful Jan 6 protestors, who thought Capitol was open to public, to prison

The DC Appellate Court has, for more than 50 years, banned the practice of overcharging defendants to coerce a guilty plea on a lesser charge.


. . . the prosecutor clearly cannot have carte blanche to apply whatever tactics he wishes to induce a guilty plea. A policy of deliberately overcharging defendants with no intention of prosecuting on all counts simply in order to have chips at the bargaining table would, for example, constitute improper harassment of the defendant. [Emphases added].

Yet, overcharging is widely practiced against Jan 6 protestors in the very jurisdiction controlled by that appellate court - the DC District Court. Even defendants who spent just a few minutes in the Capitol, and even when the evidence indicated that the Capitol appeared to them to have been open to the public, were charged with “knowingly” violating multiple crimes.

Horizontal overcharge

Professor Albert Alschuler, in a Law Review article for the University of Chicago Law School, categorized prosecutorial overcharging as either horizontal or vertical. He defined horizontal overcharging as

multiplying "unreasonably" the number of accusations against a single defendant … prosecutors may fragment a single criminal transaction into numerous component offenses. In Cleveland, "bad check artists" are usually charged, not only with one, but with three separate offenses for each check: forgery, uttering, and obtaining property by false pretenses. In Boston, the pattern is the same, except that a fourth offense is occasionally added; the defendant may also be charged as a "common and notorious thief.” 

Horizontal overcharge of Jan 6 protestors

It’s almost as if the US Attorney’s Office for the DC District was determined to prove that horizontal overcharging is its standard operating procedure, listing on a webpage dedicated to January 6 cases, how they “fragmented” the single potential criminal transaction of entering the Capitol into “numerous component offenses,” including:

• Entering and Remaining in a Restricted Building or Grounds
• Disorderly and Disruptive Conduct in a Restricted Building or Grounds
• Disorderly Conduct in a Capitol building
• Parading, Demonstrating or Picketing in a Capitol building

Of course, an offer to agree to a plea on just the first of these redundant charges comes off as generous after a shackled defendant is read an indictment listing all four charges. While the protestors may initially believe it not possible to be charged with four variations of one trespass violation, the reality eventually sinks in that they will not be treated like protestors from a different political perspective.

Vertical overcharge

Professor Alschuler defined vertical overcharging as

charging a single offense at a higher level than the circumstances of the case seem to warrant . . . .

prosecutors charge robbery when they should charge larceny from the person, that they charge grand theft when they should charge petty theft, that they charge assault with intent to commit murder when they should charge some form of battery, and that they charge the larceny of an automobile when they should charge "joy-riding," a less serious offense that does not involve an intention to deprive the car owner permanently of his property. 

Vertical overcharge of Jan 6 protestors

The US Attorney’s Office in the DC district likewise appears bent on proving that vertical overcharging is indeed their regular practice, publicizing the following additional charge it applied to alleged trespassers:Obstruction of an Official Proceeding

Interestingly, this 20-year felony is found in the federal government’s witness tampering statute. Even conceding that that is the correct statute to address the activities of the minority of protestors who used force, what of the peaceful protestors? One would need to force protestors to be judged by a jury not of their peers to imagine a scenario in which jurors accept prosecutors’ arguments that peaceful protestors careful to stay within the Capitol’s velvet ropes were attempting to obstruct a proceeding elsewhere in the Capitol.

Nonetheless, the threat of a 20-year sentence, and the promise to drop that vertical overcharge, as well as few horizontal overcharges, has been enough to induce many peaceful protestors to confess, in writing, to what they know to be inaccurate:

The defendant knew at the time he entered the U.S. Capitol Building that he did not have permission to enter the building. [Emphasis added].

• Disproportionate and insincere obstruction charges lacking evidence

Law school professor Kyle Graham presents an updated categorization of overcharging, but again, federal prosecutors violate each category:

• Charging Without Adequate Proof
• Filing Charges Disproportionate to the Crime
• Prosecutorial Insincerity

Charging peaceful protestors who spent a short time taking selfies in the Capitol with the 20-year Obstruction felony has been done without proof of obstruction, without any proportion to what the protestor did and cannot be said to be a sincere effort of prosecutors to later prove obstruction to a jury.

SCOTUS bans overcharging

Lest one think that only the DC Circuit has banned overcharging, the nation’s highest court specifically excluded overcharging defendants from its description of acceptable plea bargain strategy by prosecutors:

We here make no reference to the situation where the prosecutor or judge, or both, deliberately employ their charging and sentencing powers to induce a particular defendant to tender a plea of guilty. In [this] case there is no claim that the prosecutor threatened prosecution on a charge not justified by the evidence or that the trial judge threatened [the defendant] with a harsher sentence if convicted after trial in order to induce him to plead guilty. 

In another Supreme Court decision, a dissenting justice noted matter of factly, on a point not disputed by the court’s majority, that,

. . . plea bargaining . . . presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading guilty to a lesser offense … 

ABA bans overcharging

The American Bar Association also sets, as a national standard, the categorization of overcharging as unethical:

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