Joshua James (pt. 2)

It has reached a point, more than seven months into this, that it is difficult to research the defendants as people.  There is such an outbreak of dung beetles on “the Oath Keeper defendants” that Google can run hundreds of entries deep of nothing more than cut-and-paste off a single US DOJ press release.  Any Internet entries about these twenty individuals are now submerged into an undersea chasm.  Because these were normal people, living ordinary, if American, lives before January 6, there is too little electronics left of their lives to offer any definition of “who” they were.

I don’t know how a non-attorney can switch – as I now have – to PACER to read first hand what’s going on in the prosecutions and in their lives.  That for Donovan Crowl, there were back-to-back entries just yesterday: one, a request to modify the conditions of his pre-trial release to make a hospital visit; the immediate next, logged into the system at the same time, to attend the funeral of his mother.

I don’t know how a non-attorney could wade through the ever-growing docket entries, upwards of 25-pages per case for twenty cases.  Select the legally important, out of the ministerial or routine.  Pay for the stacks of papers, even at 10-cents/page when single motions can be 100+ pages.  Read selected legal submissions.  Cull the DOJ hyperbole, surplusage, and increasing desperation to isolate the possibly-credible allegations in accordance with standards of pleadings, admissibility, and weight of evidence.

Even for me, a litigation attorney with more than 25-years of courtroom experience, it feels like I am carrying a caseload when, technically, I have no responsibility to any of the January 6 defendants.

Except that I do.  I have adopted a responsibility to you for precisely these reasons.  And, because “The Press” isn’t doing their job of looking, at least, into these public records, instead of regurgitating DOJ serials, I find myself on this assignment for the time-being.

Unless one plows through the morass of useless words about January 6, you will miss salient facts like Joshua James being the recipient of a Purple Heart.  It is a fact that matters because it is probative of the character of the man.

It may also be what tips the balance of Justice in his favor, about those seven minutes he spent inside the Capitol.

By the time Joshua James arrived at the U.S. Capitol, the melee was underway over two hours.  In his testimony to Congress, then US Capitol Police Chief Steven Sund described the situation as “rapidly deteriorating” just before 1:00 pm. 

Mr. James was then still at the Ellipse.  Already after 2:30 p.m., James became a passenger in a golf cart driven by Roberto Minuta, to which Mr. Minuta was handed the keys the day prior.  At a point, Mr. Minuta heard there was something going on at the Capitol and wanted to go there.  Mr. James had to Google for directions.  Literally.  And off they went, driving part of the distance, and then leaving the golf cart and completing the journey on foot.

Mr. James is alleged to have entered the doors at the east end of the building at 3:15 p.m. and to have exited at 3:22 p.m.

By the testimony of FBI Agent Paul Jones:

Q. You have no information that Mr. James assaulted anyone; is that correct?

A. That’s correct.  I do not have any information to indicate that Mr. James assaulted anyone.

and

Q. So “storming” is an aggressive movement, correct?

A. Yes, sir.  I agree with that.

Q.  And so is there a photograph that depicts Mr. James storming anywhere?

A. Not that I have seen, sir.

By a subsequent depiction of a US DOJ attorney, “The defendant yells, “You want out!?” and “…he pulls the officer out of formation toward the exit.”

In a small footnote, buried in several hundred pages of motions concerning Mr. James’ pre-trial release status,

“The fact that this confrontation stemmed from Mr. James’ initial attempt to assist an officer is consistent with portions of the Signal chats that occurred the next day wherein a member discussed the fact that members of Mr. James’s security detail assisted in escorting police officers who wanted out.”

A combat Veteran with a tour of duty in Iraq for the United States Army.  With a focus on January 6 of providing personal security detail against rioters.  Mr. James walks, voluntarily, into the chaos of the building: the noise, the smells of sprays, the fatigued law enforcement officers awaiting a National Guard not yet deployed.

Then, Mr. James voluntarily leaves that chaos.  Mr. James exists the building, rubs his face, potentially from spray aimed at him (as per the DOJ allegations).  He walks out of a situation in progress too confusing for officers to be able to recognize assistance in the form of Mr. James.  Confusion by officers as to what citizens were attempting to do.  Confusion by citizens on why officers were resisting their entrance.

In the DOJ paper submission, the attorneys take one still frame out of a video.  A frame of Mr. James’ mouth wide open, submitted as proof of his violent intention to overthrow the government in a multi-month plot orchestrated by “the Oath Keepers.”

If that was the “mission” for Mr. James that day, why arrive so late and leave so soon?  Why wouldn’t a Purple Heart, doing duty at a location 40 minutes on foot from the eventual location, stay and fight once there, in the thick of an undeniable battle?

I’m not used to this – this business of being on the outside of a litigant.  I’m used to drilling my clients.  For hours.  To contacting witnesses and interviewing them.  To subpoena documents.  To arguing and getting in the face of opposing counsel.

But, then, I’m used to civil litigation where both sides argue their versions of events, tête-à-tête.

Joshua James cannot use his voice to answer our questions.  He has a right to remain silent that cannot be used to construe guilt in a court of law before a judge or jury.

Because of that constitutional right, Mr. James and his co-defendants are losing – badly – the PR battle being waged by the DOJ and The Press, even as dozens of attorneys in private and public practice representing these men and women regularly say, “no comment.” Which is also their choice in the representation of their clients.

In criminal cases, the government has the burden of proof beyond a reasonable doubt.  We would do well as Americans to remember that.

And, in the case of Joshua James, we would do well to let the Purple Heart speak on his behalf before we jump to conclusions about those seven minutes.