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'Resolving the crime of the century with misdemeanors' | Judge skewers DOJ at January 6 sentencing

D.C. District Chief Judge Beryl A. Howell told the Justice Department it was tying judges' hands by charging Capitol riot defendants with petty misdemeanors.

WASHINGTON — The chief judge of the federal court overseeing January 6 cases raked prosecutors over the coals on Thursday, criticizing their “muddled” approach to sentencing recommendations and saying their decision to charge defendants with low-level parading charges had tied judges’ hands.

D.C. District Court Chief Judge Beryl A. Howell told assistant U.S. attorneys their sentencing memo for Jack Griffith – a Tennessee man who pleaded guilty to one misdemeanor count in July – started out by calling the Capitol riot an “unparalleled” assault on democracy, and then ended by describing “trespassing that got out of hand.”

“No wonder parts of the public are confused about whether what happened on January 6 was just trespassing with some disorderliness or shocking criminal conduct,” Howell said. “No wonder.”

Justice Department attorneys were before Howell on Thursday to recommend three months of incarceration for Griffith – the mid-point of the recommended sentencing guideline for the Class “B” charge of parading, demonstrating or picketing in a Capitol building to which he’d pleaded guilty. His attorney, Heather Shaner, argued he should receive a sentence of probation only.

Howell said she was troubled by social media posts Griffith had made before and after the riot, including one in which he’d written, “All going to D.C. THE CALVARY IS COMING,” and another in which he said he’d helped “storm the Capitol.” The Justice Department also highlighted TikTok videos Griffith had made using the riot to promote his video game in which players take the role of former President Donald Trump and hunt Satanists and “left-wingers.”

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Howell also said it wasn’t clear to her Griffith had fully taken responsibility for his role in the riot.

“You tried to blame other people, the media, for your actions on January 6,” she said. “You’re not a lemming, Mr. Griffith. You have to take accountability for your own actions.”

But Howell spent most of her time on Thursday addressing the government over it’s “schizophrenic” briefs in January 6 cases, its estimate of $1.5 million in damage to the Capitol – as she pointed out, Congress allocated more than $500 million to the Architect of the Capitol alone after January 6 in an emergency security supplemental – and its choice of the low-level parading charge usually reserved for protestors who briefly disrupt congressional hearings.

“The government is resolving the crime of the century with Class ‘B’ misdemeanors,” Howell said.

Howell, who was appointed to the United States Sentencing Commission in 2004 by President George W. Bush and then to the D.C. District Court in 2010 by President Barack Obama, also said she had never in her career seen prosecutors ask for restitution without probation as well.

“I have to tell you, every single criminal case I have where there’s restitution or a fine, the government asks for probation,” she said. “And they ask for a length of time sufficient for it to be repaid.”

Nevertheless, Howell said, the DOJ had done so, and so she was obligated to avoid sentencing disparities with other Capitol riot defendants who’d also pleaded guilty to the same parading charge. Those defendants include Anna Morgan-Lloyd, an Indiana grandmother sentenced to three years of probation. Morgan-Lloyd was also represented by Heather Shaner.

Howell said she believed jail time was warranted for Griffith, but ultimately sentenced him to 36 months of probation and $500 in restitution. Howell made it clear upon sentencing that she felt the government’s charging decision had restricted her ability to impose a proper deterrent in the case.

“Members of a mob who breach barriers and push back officers to disrupt the joint session of Congress are not trespassers, they are criminals,” Howell said.

More than 100 Capitol riot defendants have now pleaded guilty in the case. Of those, at least 96 have pleaded guilty to misdemeanors – the vast majority to the parading charge. Less than two dozen of those defendants have been sentenced so far, with sentences ranging from 2 months of probation and a $3,000 fine to 6 months in jail for two defendants who were detained pending trial. Last week, another federal judge sentenced husband-and-wife Thomas and Lori Ann Vinson, of Kentucky, to 5 years of probation and a $5,000 fine – explaining he wanted others who might consider attacking the Capitol to know their punishment would “hurt.”

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