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In Capitol riot cases, judges split on whether to keep defendants in jail before trial

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By Katelyn Polantz, CNN
Updated 6:01 AM ET, Fri February 19, 2021

(CNN) — The Tennessee man covered in black armor who lunged across seats in the US Senate carrying plastic handcuffs during the insurrection at the US Capitol won’t walk free as he awaits his court hearings. Neither will the Arkansan who put his feet on House Speaker Nancy Pelosi’s desk and allegedly had his wife take guns out of the house before his arrest, nor the Alabaman who says he was inspired by God as he walked the floor of the Senate, bleeding.

But a New Mexico official and “Cowboy for Trump” who announced at a county council meeting he’d return to Washington, DC, for President Joe Biden’s inauguration with guns in his car, and a man who brought a 3-inch pocketknife to a meeting with his pretrial officer will be released, judges have decided.
A federal judge, reviewing the knife incident, told defendant Gabriel Augustin Garcia that he was “lucky” on Wednesday. He remains released, on a curfew and with a GPS monitor.
Luck isn’t all that’s needed, as a majority of the more than 220 US Capitol riot defendants are released from jail as they await trial.
    The law sets a high bar for federal judges to keep defendants behind bars before a conviction, with only certain types of violent crimes making detaining defendants necessary. So it’s an alchemy of history and future threats that judges consider when deciding whether to detain or release alleged rioters. They look at each person’s individualized histories and weigh the likelihood they might flee, destroy evidence or be violent toward others.
    “It really gets down to whether they’re going show up for trial, and if they’re going to harm anybody,” said Chris Maloney, a consultant to the federal judiciary who previously led the probation offices for the Massachusetts and New Jersey federal courts. “Even if they stormed the Capitol, but were a model citizen? You can’t pile all those conditions on them, if they have strong ties to the community.”
    The decisions on detentions have become a Rorschach test for judges across the country as they see defendants charged with taking part in the January 6 riot.
    Several magistrate judges in various states have split with the Justice Department’s requests to hold in jail alleged rioters, and a handful of detention decisions are now headed for appeals. And some Washington, DC-based judges have reacted more harshly to the actions of rioters than judges in their home states.

    From court to court

    In a few cases, like that of Couy Griffin, the official from New Mexico; Richard Barnett, the man in Pelosi’s office; and Eric Gavelek Munchel, the infamous “zip-tie” man, judges in DC have reversed lower-court judges’ rulings.
    Judge Royce Lamberth of the DC District Court wrote in Munchel’s case Wednesday that he “poses a clear danger to our republic.” He said the same about Munchel’s mother, who also had picked up zip tie-like restraints within the Capitol and wore body armor on January 6. The mother — Lisa Eisenhart, a traveling nurse in Georgia — had said in an interview after January 6 she would “rather die” in a revolution than be oppressed, a statement so bold Lamberth said she would be a risk to the community if released.
    “If Eisenhart does not fear the ultimate consequence, the consequences for disobeying release conditions are unlikely to deter her,” the judge wrote.
    Munchel and Eisenhart are now appealing Lamberth’s decision. They have both pleaded not guilty to their charges.
    It’s possible their arguments for release from jail could work. Eisenhart has no criminal history, and the charges she faces aren’t so severe they merit automatic jailing.
    And having the case bounce from courtroom to courtroom could work in her favor as well. Regarding her release, a magistrate judge in Tennessee previously decided the mother-son pair was not violent, Munchel “respected” law enforcement and Eisenhart wasn’t a danger to the community.
    “You talk about regional differences — you go two courtrooms down, and strikingly different things can happen,” Maloney said. “From district to district, it just varies widely.” Even within the same case before the same judge, Maloney said, each defendant may be treated differently because of their record, which is reviewed by court probation officials without looking at the evidence of the current case they face. Judges then decide based on those officials’ recommendations, the arguments made by the legal teams in court, and their own interpretation of the law.
    Maloney described how a single criminal case could bring in almost 30 gang members, but once the court looks at them individually, a few gang members could be released.
    In fact, a report from the federal judiciary in 2018 found that public order and property crimes — the types of offenses many of the Capitol riot defendants face — largely resulted in a defendant being released before trial. Violent crimes and firearms offenses largely resulted in detention, which is so far mostly consistent with how detention decisions related to January 6 have been made. The Capitol riot defendants who are charged with, for example, assaulting police have stayed behind bars for the most part.

    The price of bail

    A CNN review of many of the Capitol riot cases shows that even among the released defendants, judges have taken widely varied approaches.
    In federal district courts across the country, the defendants who are arrested then released don’t have monetary amounts for bail set, and instead are told to return to court on their own promise, called personal recognizance.
    A handful have been given bail amounts of $10,000 or $25,000. But in the busy court of the Eastern District of New York, which includes parts of New York City and Long Island, a judge set two Capitol riot defendants’ bail at $250,000 each.
    When the two men’s cases — both about allegations of them violently entering the Capitol grounds in the crowd — were moved to DC, the Justice Department and judges in DC agreed they could be released without set bail amounts.

    Bleeding rioter compared to others

    At least one defendant, Joshua Black of Alabama — who said on YouTube he wanted to “plead the blood of Jesus” in the Capitol and, indeed, was bleeding from his cheek when he was photographed on the floor of the Senate — had his attorney argue to a judge in Alabama that defendants in the riot cases weren’t being treated equitably. Black had admitted on video having a knife on him that day in the riot, because he works outside, he said, not because he wanted to use it.
    Black’s defense attorney had drawn up a chart showing how another rioter wore a “Camp Auschwitz” sweatshirt in the Capitol but was released on personal recognizance, as was a woman who held a sign that said “Children Cry Out for Justice” while she photographed a rioter in the vice president’s chair, according to filings in Black’s case in Alabama.
    Those other defendants, Robert Packer and Christine Priola, face similar charges to Black.
    The judge in Alabama, John England III, deemed Black a possible danger to the community if he were to be released, so he is still behind bars. Black says he plans to appeal the Alabama federal judge’s detention ruling, and is set to have his first court appearance in DC next week, according to his court record. Packer and Priola won’t be back in court for several more days, either.
    In recent weeks, another released defendant who has pleaded not guilty, Texas florist Jenny Cudd, caught the public’s attention, after she was allowed to travel to Mexico on a “bonding” retreat for her employees. As luxe as that trip sounds, it’s not uncommon for judges to allow defendants awaiting trial to travel out of the country if they are deemed not to be a flight risk.
    “In fact, it’s pretty common,” Maloney said.
    In DC, the terror of the siege has landed hard in court arguments.
    After an Arkansas judge agreed to release Barnett — who made foul remarks about Pelosi to the Washington Post — Judge Beryl Howell, the chief of the DC District Court, noted she could still see National Guard protecting the Capitol from her chamber’s windows at the court. She characterized Barnett’s part in the riot and subsequent behavior as “brazen, entitled, dangerous,” during a hearing about his detention.
      “We’re still living here in Washington, DC, with the consequences of the violence that this defendant is alleged to have participated in,” Howell said, castigating Barnett three weeks ago. The names of his charges, she added — seven counts including theft of government property, parading in a Capitol building, disorderly conduct and entering restricted grounds with a stun gun — “don’t even properly capture the scope of what Mr. Barnett is accused of doing here.”
      He has pleaded not guilty.

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      Politics

      Biden to take first limited steps on gun control, including on ‘ghost guns’ and pistol braces

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      By Kevin Liptak, CNN
      Updated 10:57 PM ET, Wed April 7, 2021

      (CNN) — President Joe Biden will take his first, limited actions on gun control Thursday, directing his administration to tighten restrictions on so-called ghost guns and pistol stabilizing braces that allow the weapons to be used more accurately, according to a senior administration official.

      The steps — which also include nominating a gun control advocate to lead the Bureau of Alcohol, Tobacco, Firearms and Explosives — fulfill a commitment Biden made in the aftermath of two deadly shootings last month to take “common sense” steps right away to address gun violence.
      But they fall short of the sweeping actions Biden promised as a candidate that must be passed by Congress, including a ban on assault weapons or enacting universal background checks. Senior administration officials framed the upcoming announcements as initial steps that would be followed by additional actions later on, including applying pressure on lawmakers to act.
        Biden said last month following a mass shooting in Colorado, “I don’t need to wait another minute, let alone an hour, to take common sense steps that will save lives in the future.” But he has acknowledged that passing a massive new infrastructure plan — and not new gun laws — is his top legislative priority.
          Biden will make the announcements Thursday from the White House alongside his attorney general, Merrick Garland, whose Justice Department will be responsible for drafting the proposed rules.
              The announcements will come as the President is expected to nominate David Chipman as the next director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, a White House official told CNN. Chipman is a former ATF agent who serves as senior policy adviser at Giffords, the organization led by former congresswoman Gabby Giffords, who became a gun control advocate after being shot in 2011.
              The ATF has been without a permanent director since 2015.
              Biden also plans to announce new investments in intervention programs in violence-prone communities; a directive to the Justice Department to publish model “red flag” laws for states that allow the temporary removal of guns from people deemed at high risk of harming themselves or others; and a comprehensive report on firearms trafficking.
              Taken together, the actions amount to the first real steps by Biden’s administration to combat gun violence. Inside the White House, efforts to devise executive actions have been led by White House Domestic Policy Council Director Susan Rice and Office of Public Engagement Director Cedric Richmond, administration officials and gun safety advocacy groups told CNN.
              That included meeting with some of those groups and fielding ideas for steps that Biden could take on his own. Some advocates had been clamoring for steps earlier in the administration, pointing to Biden’s pledge to prioritize gun control during his campaign.
              But initial reaction from gun safety advocacy groups Wednesday evening was positive.
              “Each of these executive actions will start to address the epidemic of gun violence that has raged throughout the pandemic, and begin to make good on President Biden’s promise to be the strongest gun safety president in history,” John Feinblatt, president of Everytown for Gun Safety, said in a statement.
              “These much-needed executive actions will start saving lives right away, and our grassroots army of nearly 6 million supporters looks forward to standing behind President Biden as he urges the Senate to follow his lead and act,” Shannon Watts, founder of Moms Demand Action, said in a statement.
              While campaigning, Biden had said he would task his attorney general with instituting better enforcement of existing gun laws as a means of slowing gun violence. He also made a campaign pledge to send $900 million for community programs meant to combat violence, something the administration is sorting out how to fulfill.
              Following last month’s shootings, Biden called on Congress to take steps like reenacting an assault weapons ban, with Vice President Kamala Harris, who argued for executive actions on the campaign trail, telling “CBS This Morning” that “if we really want something that is going to be lasting, we need to pass legislation.”
              The Democratic-controlled House passed gun legislation that would expand background checks on all commercial gun sales last month, but the bills face tougher paths in the Senate, where Democrats hold a slim 50-50 majority and would need significant Republican support to overcome a legislative filibuster.
              Biden acknowledged during a news conference that his main legislative priority was passing an infrastructure package and that he believed careful timing was key to the success of any proposed bills.
              And he has acknowledged that his political capital is limited.
              “I haven’t done any counting yet,” he said in March when asked whether he believed he had enough votes to pass significant reforms.
              As the nation’s posture on guns has evolved, Biden has been front-and-center at most every stop along the way for more than three decades, from the triumph of a 10-year ban on assault weapons in 1994 to the disappointment of a failed push for universal background checks in the wake of the Sandy Hook massacre.
                Recent shootings in Georgia and Colorado had raised the question inside the West Wing over how much political capital Biden should expend on the matter, which has so often ended in frustration.
                This story has been updated with details about Biden’s executive actions and reaction to them.

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                Virginia lawmakers OK marijuana possession starting July 1

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                By Paul LeBlanc and Kay Jones, CNN
                Updated 9:45 PM ET, Wed April 7, 2021

                (CNN) — The Virginia General Assembly on Wednesday passed a bill legalizing simple possession of marijuana, becoming the latest state to modify its laws around cannabis use and possession that disproportionately jailed Black people for nonviolent offenses.

                The new law, which goes into effect July 1, allows anyone in the state 21 or older to possess up to 1 ounce of marijuana. The law also “modifies several other criminal penalties related to marijuana, and imposes limits on dissemination of criminal history record information related to certain marijuana offenses,” according to a summary posted to the Legislature’s website.
                “Virginia led and made history once again today,” Virginia Lt. Gov. Justin Fairfax, who cast the tie-breaking vote in the state Senate, said in a tweet.
                  “I was proud to cast the tie-breaking vote to legalize marijuana and bring long overdue justice, fairness, equity and opportunity to the people of our great Commonwealth.”
                    The bill had originally passed in late February, but Democratic Gov. Ralph Northam sent it back to the Legislature with a series of revisions, including a proposal to accelerate the timeline of its enactment to this July instead of 2024.
                        Still, the measure was met with fierce opposition from state GOP lawmakers Wednesday, including Del. Chris Head, who called it a “train wreck” during a virtual House floor speech.
                        “If this policy change is to be undertaken, it has to be undertaken prudently, and I understand the enormous pressure on the majority party to make this change right now. I understand that opposing immediate legislation and legalization is going to anger many of your constituents. And I understand that taking the time to do this right might possibly even lead to charges of racism,” he said.
                        “But we have to do this right. And doing it right takes time.”
                        Legalization advocates have long touted the righting of past criminal justice wrongs, eliminating illegal market activity and generating additional tax revenue when they’ve pushed for overhauling state cannabis laws.
                        “At the end of the day, economics talk and jobs talk,” Jessica Billingsley, chief executive officer of Akerna, which makes regulatory compliance software that helps states track cannabis sales from seed to sale, previously told CNN.
                          “I truly believe we’re going to see some very meaningful and important movement coming out of this as states and governors look for a way to bolster their economy.”
                          Cannabis sales in states that have legalized the plant for medical and recreational purposes totaled about $15 billion in 2019, and are expected to top $30 billion by 2024, according to data from BDS Analytics, which tracks dispensary sales.

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                          Biden’s planned pick for ATF director a fierce advocate for gun control

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                          By Paul LeBlanc, CNN
                          Updated 9:30 PM ET, Wed April 7, 2021

                          Washington (CNN) — David Chipman, President Joe Biden’s planned nominee for director of the Bureau of Alcohol, Tobacco, Firearms and Explosives, has a long history at the agency and sports credentials in gun control advocacy sure to excite firearm safety groups.

                          If confirmed, Chipman will lead the agency that enforces gun laws at a critical point in Biden’s early tenure, as the President looks to take fresh action on the issue in the wake of two deadly shootings last month.
                          “I don’t need to wait another minute, let alone an hour, to take common-sense steps that will save lives in the future,” Biden said last month. The President plans to announce new executive actions on guns Thursday, a person familiar with the plans said.

                            Longtime ATF special agent

                              Chipman, if confirmed, would return to the agency where he worked for 25 years as a special agent.
                                He lists “Violent Crime Reduction Strategist,” “Certified Explosives Specialist” and “Interagency Liason Specialist” among his specialties on his Linkedin profile, and Giffords notes his expertise includes ghost guns, the gun industry, law enforcement and assault weapons.
                                In the President’s first, limited actions on gun control Thursday, Biden will direct his administration to tighten restrictions on so-called ghost guns and pistol stabilizing braces that allow the weapons to be used more accurately, according to a senior administration official. Ghost guns are handmade or self-assembled firearms that don’t have serial numbers, and some can be fabricated in as little as 30 minutes using kits and parts purchased online.
                                The ATF has been without a permanent director since 2015.
                                In recent years, the bureau has become most visible in the aftermath of mass shootings around the US and at other crimes involving firearms. But the agency has a broader scope than just guns.
                                According to its website, ATF “protects our communities from violent criminals, criminal organizations, the illegal use and trafficking of firearms, the illegal use and storage of explosives, acts of arson and bombings, acts of terrorism, and the illegal diversion of alcohol and tobacco products.”
                                “We partner with communities, industries, law enforcement, and public safety agencies to safeguard the public we serve through information sharing, training, research, and use of technology,” the bureau’s website states.

                                Gun control advocacy

                                After leaving the ATF in 2012, Chipman became a senior adviser at Everytown for Gun Safety, where he was “consulted frequently” by lawmakers considering gun control legislation, according to his Linkedin.
                                Chipman then served as senior vice president of Public Safety Solutions for almost three years before arriving at Giffords as a senior policy adviser in 2016.
                                It’s in these roles that Chipman’s voice as a fierce advocate for gun control was elevated, as he frequently wrote op-eds and made media appearances to advance the cause.
                                “As a former ATF special agent with more than 24 years of experience at the bureau, I know all too well how serious our gun violence problem is and how desperately the agency lacks for the law enforcement tools that are necessary to help curb this national epidemic,” Chipman wrote in a 2013 Politico op-ed.
                                The country’s gun safety laws, he wrote at the time, “make it all too easy for guns to fall into the wrong hands — and since Congress has failed to address these gaps legislatively, ATF must chart a new course to combat the scourge of gun violence. This requires strong leadership.”
                                More recently, Chipman voiced support for limiting high-capacity magazines in a 2019 interview with PBS NewsHour.
                                “Talking to any gun owner, a 100-round magazine is just not traditional. It’s not normal. And I can’t think of a purpose, beyond killing a lot of people, for having it,” he said. “So if the debate is, should it be 10 or what have you, it can’t be 100. And so I think there’s room where we can have progress, although we will not have perfection.”
                                  And in light of FBI records last summer showing US firearm background checks having skyrocketed during the Covid-19 pandemic, Chipman told CNN at the time: “My biggest concern involves the potential number of first time gun buyers who, before March, did not think they needed a gun.”
                                  This story has been updated with additional details Wednesday.

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                                  Politics

                                  Andrew Giuliani, former Trump aide and son of Rudy Giuliani, says he plans for to run for governor of New York

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                                  By Devan Cole, CNN
                                  Updated 12:16 PM ET, Wed April 7, 2021

                                  Washington (CNN) — Andrew Giuliani, the son of former New York Mayor Rudy Giuliani, says he’s planning to run for governor of the heavily Democratic state next year.

                                  “I plan to run,” Andrew Giuliani, who served as an aide to former President Donald Trump, told the Washington Examiner in an interview published Wednesday.
                                  Giuliani’s gubernatorial bid could set up a high stakes, headline-grabbing showdown with Andrew Cuomo, should the embattled incumbent Democratic governor decide to seek a fourth term. But Giuliani would face a steep uphill battle in the heavily Democratic state, and his candidacy could help hand another win to the party as his proximity to Trump would likely be seen as a liability in a state where the former President is widely unpopular.
                                    “I believe I can win the race,” Giuliani told the Examiner. “I think I’m the right candidate, and this is the right time to help change New York State, and we’ve got a playbook that works.”
                                      “Outside of anybody named Trump, I think I have the best chance to win and take the state back, and I think there’s an opportunity in 2022 with a wounded Democratic candidate, whether it’s going to be Gov. (Andrew) Cuomo, whether it’s going to be a radical (attorney general), Letitia James, whether it’s going to be a no-name lieutenant governor, I think there’s a very, very real chance to win,” he said, according to the magazine.
                                            Asked if he expected Cuomo to seek reelection to a fourth term next year, Jay Jacobs, the state party chair and a close ally of the governor, demurred.
                                            “I honestly don’t know the answer to that question. I think that he’s more focused on getting through his current troubles, then seeing where he’s going to go,” he said. “These investigations are going to be critical in all of that. It’s hard to tell. I’m sure that, given his druthers, he’d like to run for reelection.”

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                                            Politics

                                            Stephen Breyer worries about Supreme Court’s public standing in current political era

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                                            By Joan Biskupic, CNN legal analyst & Supreme Court biographer
                                            Updated 9:07 PM ET, Tue April 6, 2021

                                            (CNN) — Justice Stephen Breyer, who may be nearing the end of his Supreme Court tenure, expressed concern on Tuesday about the standing of the high court and the possible erosion of public confidence in its decisions.

                                            In an expansive, two-hour lecture at Harvard Law School, Breyer bemoaned the common practice — by journalists, senators and others — of referring to justices by the presidents who appointed them and of describing the nine by their conservative or liberal approach to the law.
                                            “These are more than straws in the wind,” the 82-year-old Breyer said. “They reinforce the thought, likely already present in the reader’s mind, that Supreme Court justices are primarily political officials or ‘junior league’ politicians themselves rather than jurists. The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences. That is not what the public thinks.”
                                              Breyer also warned against proposals to expand the size of the Supreme Court from its current nine members. Public trust was “gradually built” over the centuries, he said, and any discussion of change should take account of today’s public acceptance of the court’s rulings, even those as controversial as the 2000 Bush v. Gore case that settled a presidential election.
                                                “The public now expects presidents to accept decisions of the court, including those that are politically controversial,” he said. “The court has become able to impose a significant check — a legal check — upon the Executive’s actions in cases where the Executive strongly believes it is right.”
                                                  Some of Breyer’s most compelling opinions, it should be noted, have been written in dissent. In 2007, for example, he objected to an opinion by Chief Justice John Roberts rejecting school integration plans in Seattle and Louisville. Roberts said districts could not consider a student’s race when making school assignments to reduce racial isolation throughout the school district.
                                                  “This is a decision that the Court and the Nation will come to regret,” wrote Breyer, whose father, Irving Breyer, was a long-serving school board member in San Francisco. Breyer still wears the wristwatch his father received upon his retirement from the district. Breyer said the Roberts opinion threatened “the promise of” the 1954 Brown v. Board of Education decision.
                                                  Breyer said Tuesday that differences with his colleagues were based on their distinct views of the structure of the Constitution or how they interpreted statutes. He did not refer to instances in which his colleagues themselves have publicly questioned each other’s motives.
                                                    Breyer did allow that sometimes justices weigh public opinion or the future ramifications of a decision. And he acknowledged that the nine are products of their individual backgrounds and experiences.
                                                    Still, he said, “judicial philosophy is not a code word for ‘politics.'”

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