I am thankful that American court cases, however otherwise messed up and biased our system of justice is, are still decided based on the available evidence, facts proved in court, beyond a reasonable doubt. The ideologues on the Supreme Court can sometimes employ narrow legal theories to overturn a trial judge’s findings, invalidate or uphold a law, but judges in our trial courts are generally constrained by the facts in evidence in the case before them.
Some of our judges are heroic in this perilous moment when a Big Lie is better than the truth to millions of our countrymen. I think of federal judges like J. Nicholas Ranjan, appointed by Trump, who nonetheless took days to write a 140 page appeal-proof ruling dismissing Trump’s evidence-free voter fraud case as the seamless tissue of bullshit it was.
Another judicial hero is Judge Amy Berman Jackson, a trial court judge on the DC federal court. The trial judge’s first job is fact-finder, the court establishes the facts of the case before applying the law to the facts in evidence. Appeals courts review only alleged errors of law by the trial court. It is extremely rare for an appeals court to disturb the findings of fact by the trial judge.
Judge Berman Jackson’s fact finding sets out a great deal of detail in her rulings, she illustrates her decisions with vivid facts from the record. She recently denied the motion for pre-trail release filed for enthusiastic Trump rioter, Karl Dresch, after weighing the facts before her.
Here are few of the colorful facts she provided to support her findings, excerpted from many letters in support of Dresch’s motion for pre-trial release, from a long footnote of examples:
T.L. (pastor of a local church): “[Defendant and his wife] are not yet members of the church.” “We have shared a few meals together, and [defendant] has done some work for the church. . . . That is the extent of our relationship.” “[As] a fairly quick judge of character . . . I do not believe that [defendant] is any real danger to our community or government. I ‘think’ that [defendant] got wrapped up in a movement and made some very foolish decisions.”
A.P. (defendant’s longtime family friend): “While [defendant] may have been in the wrong place at the wrong time and got swept up in the unfortunate events of the day, I cannot imagine that he had any intent to inflict injury to persons or property.”
P.L. (defendant’s longtime friend and local attorney): “[Defendant] has very strong political views concerning government, in particular the legislative and executive branches, and law enforcement.” “[T]o be candid, [defendant] has occasionally exercised rather poor judgement.” “I have never known [defendant] to be violent in any way nor do I believe him to be flight risk nor a person who would obstruct justice.”
S.F. (casual acquaintance of defendant for past two years): “I can vouch for [defendant’s] sincere friendly character, morals and integrity over the time I have known him.”source
In laying out the facts that support her decision to detain Dresch as a flight risk, and a danger to society, she includes a few pages of his social media posts, here’s one, from January 7:
On January 7, 2021, defendant commented on an unidentified post that “Mike Pence gave our country to the communist hordes, traitor scum like the rest of them, we have your back give the word and we will be back even stronger.”
Bro you shoulda been there . . . . the news is all fake . . . and just to correct shit . . we wasn’t violent but we took the capitol . . . . antifa didn’t do it they may have had some idiots undercover in the crowd but it was us that got in . . . and we didn’t fuck shit up . . . I seen a broken window . . . we picked up water bottles and shit cleaned up . . it was grand . . . best day ever . . . I think it was a good show of force . . . look what we can do peacefully, wait til we decide to get pissed.
Of course, there is also a detail like this. In his home in Calumet, Michigan:
Among other items, agents located several hundred rounds of rifle (7.62) ammunition, a Russian rifle, shotgun shells, a shotgun, and an Atlanta Braves backpack. The ammunition was located in multiple places throughout the house, including the dining room, the master bedroom, an upstairs hall room, and inside the backpack. Specifically, the backpack contained a Pilot gas station receipt from Hagerstown, Maryland dated January 5, 2021, a Metro SmartTrip card, and 8 boxes of 7.62 ammunition, containing a total of 160 rounds. The boxes matched the boxes of ammunition found in the house. The firearms were identified in the Michigan State Police Report as a Mossberg 12-gauge shotgun and a Russian-made SKS 7.62 mm x 39 caliber rifle.
The Judge then turns to Dresch’s motion to set him free until the trial and analyzes the applicable law, in light of the facts.
Defendant argues that that government lacked sufficient grounds to move for his detention under the Bail Reform Act. Section 3142(f)(2) states that the judicial officer shall hold a hearing upon motion of the government or its own motion in a case that involves “(A) a serious risk that such person will flee; or (B) a serious risk that such person will obstruct or attempt to obstruct justice, or threaten, injure, or intimidate, or attempt to threaten, injure, or intimidate, a prospective witness or juror.”
Then she sets to work ruling that the section 3142(g) factors support detention on the grounds of dangerousness by clear and convincing evidence (and here, due to formatting limitations, I will not indent, but the following is all from the May 28 decision)
A. The nature and circumstances of the offense charged
The United States Capitol was not open to the public on January 6, 2021.
There was important business going on, though, because on that day, in accordance with Article II, Section 1 of the Constitution, a joint session of Congress was convened to certify the vote of the Electoral College in the 2020 Presidential Election.
This was after every single one of the fifty states, including those under Republican control or with Republican election officials, had certified its own count, and after court challenges to those counts or certifications had been rejected by more than sixty courts across the country – by state judges, and also by federal judges appointed by Presidents of both parties, including former President Trump. Vice President Mike Pence, also a Republican, was present and presiding, as the Constitution required. See U.S. Const. art. II, § 1.
The United States Capitol Police, federal law enforcement officers surrounding the building, and the members of the District of Columbia Metropolitan Police Department who were summoned to assist, were overcome.
Defendant was one of many individuals who made their way through the barricades and past the officers who were attempting to keep the crowd away from the building. He was one of the individuals who entered the closed building. And that day, the certification process prescribed by the Constitution was interrupted as members of Congress of both parties and the Vice President had to be spirited to safety or were forced to barricade the doors or hide.
(back to me) These facts are not in dispute. The “normal tourists” who forced GOP elected officials to flee for their lives and barricade themselves in safe rooms while these normal tourist crowds, after smashing their way into the tourist attraction, roamed the halls chanting “hang Mike Pence” and calling for “Nancy” to come out and face the music, had been whipped up by Trump and the most extreme members of his remaining extremist support group. Like this guy:
The judge quotes defendant again:
Ok all you conspiracy theorists . . . don’t worry I loves you all just setting the record straight. antifa did not take the capitol. that was Patriots . . . don’t give them the thunder, we the people took back our house, the news is all bullshit. and now those traitors Know who’s really in charge.
As to Dresch’s likely future actions, the judge cites the incendiary power of Trump’s ongoing lie:
Defendant’s promise to take action in the future cannot be dismissed as an unlikely occurrence given that his singular source of information, (“Trump’s the only big shot I trust right now”), continues to propagate the lie that inspired the attack on a near daily basis. See generally From the Desk of Donald J. Trump, https://www.donaldjtrump.com/desk (last visited May 27, 2021). And the anger surrounding the false accusation continues to be stoked by multiple media outlets as well as the state and federal party leaders who are intent on censuring those who dare to challenge the former President’s version of events.
She sums up, a few pages later, after reciting defendant’s criminal history, including a drunk driving high speed chase (he did an impressive 145 miles an hour crossing from Michigan to Wisconsin to evade police) that landed him in jail, he served prison time in both states:
Given defendant’s offer to return to Washington to engage in a similar effort to disrupt democratic processes again, his warning that authorities here cannot reach him at home, the utter contempt he showed for law enforcement and the safety of the community during the high speed chase, the threatening remarks directed at an individual who was reporting participants in the attack to the FBI, defendant’s other convictions for obstructive conduct, and his knowing possession of multiple weapons and a considerable supply of ammunition after two felony convictions, the Court has clear and convincing reasons to believe that defendant poses a danger to the community that cannot be alleviated by the imposition of any conditions.
The court of public opinion may contain tens of millions who sincerely believe that Tom Hanks traffics and rapes children, then kills them and drinks their blood, and that because of heinous freaks like the falsely smiling Hanks, our country is in mortal danger and only Donald Trump can save us.
The American court of law, so far, has been fairly consistent in requiring proof, beyond the sincerely, even passionately, held opinions of those who honestly believe that their violence is necessary to save us all from Satanist, pedophile, cannibal, socialist, fascist, antifa, BLM culture warriors, dangerous monsters like blood-drinkers Tom Hanks, Ilhan Omar, Rashida Talib, George Soros and company.