Twenty Years a Marine

Jason Dolan, on September 15, accepted a plea deal. A Veteran. A Marine. A man who honorably served this county for twenty years. A husband of 19 years. A father for 18 to a daughter who, along with his wife, signed as personal sureties to a $100,000 bond posted to secure his pre-trial release.

Dolan originally pled not guilty, following his arrest on May 28, 2021, and fought through a hearing and subsequent DOJ motions to win pre-trial release on June 11, 2021.

Notification of the plea deal hit my in-box yesterday morning, somewhere south of 10 am. By 4 pm, Dolan had plead guilty to two federal felonies. Judge Mehta, presiding, seemed to be as surprised as me to have Dolan in his courtroom. But, given that Dolan has been on pre-trial home confinement in southern Florida, the personal appearance would have required advance coordination. That, and likely, a plane trip.

From my first Facebook post on point at 11:05 a.m., I hadn’t been able to locate either a “Plea Agreement” or a “Statement of Facts” for Dolan. Not on the DOJ page. Not through PACER. And with the late afternoon exception of one reporter also looking for the documents, even multiple Google searches revealed no one else had it either.

I dialed in to the appearance with dread. Within a few minutes, I typed a single line Facebook post, “My heart is breaking.”

What caused my heart to break was hearing Judge Mehta say “13-page Plea Agreement.” Thirteen pages. The same number of pages as the “Plea Agreement” for 19-year-old Caleb Berry. The 13-page versus the 9-page “Plea Agreement” of Mark Grods and Graydon Young. Those “Plea Agreements” were different by four additional pages, including “Paragraph 9,” which includes the will ” [participate] in covert law enforcement activities,” with no expiration date.

The dial-ins are audio only. What I heard in Dolan’s voice was twenty years a Marine. His voice was clear and level each time he said, “Yes, Your Honor.” I don’t believe he once missed the “Your Honor” after the “Yes.” His voice allowed me to imagine him standing, in good posture, ready for whatever heat he imagined might befall him in that setting.

Dolan pled guilty to the conspiracy charge (18 USC §371) and the “obstruction” charge (18 USC §1512(c)(2)). Both of these charges are currently pending a decision from Judge Mehta on requests for dismissal by multiple of the defendants, including Dolan. Judge Mehta asked Dolan several times and in several different ways did he understand that he was, in accepting the plea, waiving his right to a ruling on those requests to dismiss those charges and that, even if the Court rules to dismiss those charges for other of the defendants, such a ruling would not be a basis for a request to withdraw the plea?

“Yes, Your Honor.”

Even I, as an experienced litigation attorney, found Judge Mehta’s pace for the plea hearing to be relentless. It wasn’t “perfunctory.” Judge Mehta covered all the required aspects, but he couldn’t be called “disaffected.” Judge Mehta’s pace and tone stayed within a very limited dynamic. Dolan’s “Yes, Your Honor” beat a different, though steady drum.

And then came the ticking off of the waiver, one-by-one, of Dolan’s constitutional rights. As listed by Judge Mehta:

• right to go to trial

• presumption of innocence

• burden of proof upon the government

• a jury of twelve peers

• counsel at a trial

• cross-examination of witnesses

• examination of evidence

• present during the trial

• presentation of evidence on own behalf

• no requirement to testify because presumed innocent

• call witnesses

• help attorney to convince the jury not guilty

• can testify at trial, but not required to do so, and no presumption against you if you remain silence

• right to an appeal

• DC Circuit Court would review the entire proceedings

• if there was found to be a mistake, the possibility of a new trial

• counsel assigned for the appeal

• the appeal of statutes as unconstitutional

• arguments that conduct does not fall within the scope of the statute

• an appeal following sentencing

• a collaterol attack of the sentence

• the loss of the right to vote

• the loss of the right to serve on a jury

• exclusion from certain jobs

• the right to possess a firearm

I typed it all out yesterday as Judge Mehta read it off, and I retype it all today. I don’t copy and paste. I write it out again, as if I am magically able to ask Dolan, myself, if he truly wishes to waive these lengthy and substantial rights.

In the room with me, in spirt, the 18-year-old version of Dolan, attending high school in Lawrence, New Jersey, proudly showing a pocket knife to a shop instructor, only to be arrested for bringing the knife to school. (Charges were dismissed, and Judge Matthewson declined to consider this during the original pre-trial hearing.) Then, the Marine-proud Dolan, who, according to the undisputed presentation of his attorney, rose to the rank of Staff Sergeant with security clearance that would have allowed Dolan to “guard the President with a gun.” (The record does not detail whether he served such an assignment; simply that he was qualified and cleared to do so.)

I also can’t help but feel the spirit of Justice Thurgood Marshall, one of my icons of inspiration, looking, silently at me, the question passing between us: “Is Justice served here, today?”

In the case of Jason Dolan, we’re never going to know the answer to the question of whether we, as Americans, would find him guilty of the charges. These twenty defendants I am following, four now settled. I am not impervious to the incredible stress it causes a non-attorney to be caught up in the judicial system, not the least of which factors is financial. In Dolan’s case, he was represented by attorneys in private practice. It appears from the record that he may have qualified for assigned counsel, as Judge Matthewson found “Defendant lacks the financial resources to flee” and he “generally break[s] even monthly.” Dolan was unemployed for the prior 18-months, having undergone a hip replacement surgery and now needing the other replaced. Each vehicle has a loan against it, and he rents, not owns. Whether that would have made a difference, that we won’t know either.

What sticks out to me about Dolan is this. It was undisputed his contact, allegedly, with the Oath Keepers began January 3, 2021. He was inside the Capitol less than ten minutes, after he climbed the steps and stood on the landing to sing the “National Anthem.” He did not assault anyone. He did not damage property.

Previously, at the second day of the bail hearing, on June 3, 2021, Dolan’s attorney recounted a telephone call with the DOJ. Dolan’s attorney quoted the DOJ attorney as having said, “You know, Mike, if the guy pleads guilty, we will agree to let him out on house arrest.” (Judge Matthewson overruled the objection of the DOJ and allowed Dolan’s attorney to complete his remarks. The Court then emphasized to the DOJ that it was the Court and the Court only that made determinations on who would and would not be incarcerated.)

Well, the DOJ didn’t offer Dolan no jail time in this deal. Through the plea, the DOJ seeks incarceration for 63 months to 78 months, plus a fine of $25,000 - $250,000, plus associated additional details. And the terms of the 13-page plea for future testimony, interviews, waiver of counsel, service as a covert agent, and more, has no expiration date. It is not limited to only the events of January 6. Sentencing is scheduled for December 12.

Later today, I will join Bill Frady of “Lock and Load Radio” to discuss “access to justice.” Please tune in. There is so much to discuss.