A federal appeals court decision Wednesday could make it more difficult for some of the more than 535 suspects charged in the Capitol Riot to win release from custody while they await trial.
The U.S. Court of Appeals for the D.C. Circuit ruled that even defendants not accused of violence against others or destruction of property could be kept behind bars pending trial because of other indications that they pose a danger to the community.
The appeals court’s decision upheld the detention of Timothy Hale-Cusanelli, an Army reservist from New Jersey arrested about a week and a half after the storming of the Capitol on Jan. 6.
Prosecutors have said Hale-Cusanelli espoused white supremacist views to colleagues and boasted of his role in taking over the Capitol during the planned tabulation of electoral votes. He faces felony charges of obstruction of an official proceeding and interfering with police during civil disorder, as well as misdemeanor charges for entering the Capitol without permission and protesting there.
D.C. Circuit Judge Robert Wilkins said there was no clear error by the trial court judge who concluded that Hale-Cusanelli’s past history, his expressed bias against African Americans and Jews, and his use of violent rhetoric in connection with the Jan. 6 events made him unsuitable for release.
“It is not obviously wrong to conclude that these statements, taken as a whole, demonstrate a potential danger to the community,” Wilkins wrote in an opinion joined by Judges David Tatel and Neomi Rao. “This is particularly so when viewed with other statements [Hale-Cusanelli] made just prior to January 6, such as proclaiming a ‘final countdown’ and an intention to leave his employment in a ‘blaze of glory.’”
The 13-page opinion issued Wednesday may be viewed as a refinement of another ruling Wilkins authored in March that has become the working framework for decisions on pretrial detention for Capitol riot defendants. That decision said a mother and son who entered the Capitol during the fracas but did not engage in violence, Lisa Eisenhart and Eric Munchel, could not be detained pending trial based largely on the risk they might try to repeat their Jan. 6 activities. The pair were later released after prosecutors gave up their effort to hold them.
Some lower-court judges have complained that aspects of the earlier decision were difficult to parse.
In the new decision, Wilkins stressed that the earlier ruling was intended as a call for an individualized assessment of dangerousness.
“The point of Munchel was that everyone who entered the Capitol on January 6 did not necessarily pose the same risk of danger and the preventive detention statute should apply to the January 6 defendants the same as it applies to everyone else, not that the January 6 defendants should get the special treatment of an automatic exemption from detention if they did not commit violence on that particular day,” wrote Wilkins, an appointee of former President Barack Obama.
It is unclear how many Capitol riot defendants could be affected by the appeals court’s decision. In the wake of the Munchel ruling, prosecutors seem to have become more discerning when recommending that defendants be detained pending trial. In a few cases, the government has even agreed to the release of individuals accused of clashing with police officers.
The vast majority of the more than 535 people arrested have been released to await trial at home. Only a few dozen suspects are being kept in custody. The FBI has indicated it could make hundreds more arrests as tips continue to roll in about individuals depicted in photos and videos taken that day.
Former President Donald Trump and some Republican lawmakers have complained that the Capitol riot suspects are being treated too harshly, particularly when compared with participants in riots elsewhere in the country last year during the civil unrest that followed the murder of George Floyd in the custody of Minneapolis police.
View original post