16: Drama club comes to court

Sentenced from the swamp

My sentencing was mid-November. Matthew Graves was appointed to his post atop the Department of Justice DC office just one week prior to my sentencing. The feeling among judges was that the prosecutors were not providing plea deals with significant prison sentences. The DOJ had decided to streamline the prosecutions and sentencing recommendations.

I arrived in DC the evening before my sentencing. I was due before the DC Court in early afternoon, under Judge Carl Nichols.

Judge Nichols had been on the DC District court since 2019, when he was nominated by President Trump. Prior to that, he held posts in the Department of Justice, including Deputy Associate Attorney General. So, he has a good understanding and appreciation for the prosecutors, given that he was among them for years. According to his biography on justice.gov, "Judge Nichols was a partner at Wilmer Cutler Pickering Hale & Dorr LLP from 2010 until his appointment to the bench in 2019." Do you know who else worked there? Well, according to Business Insider (I know, but it's just a bio), Matthew Graves worked at Wilmer Cutler Pickering Hale & Dorr LLP prior to Nichols. Graves also clerked for Richard W. Roberts, the DC District judge whom Nichols replaced after Roberts resigned due to a sex abuse lawsuit being filed against him.

As George Carlin said, "It's one big club, and you ain't in it."

My pre-sentencing report recommended probation, based on my background and the plea deal I had signed. The prosecutors wanted 45 days behind bars. I had letters from my immediate family members as well as from professional and personal friends. The judge had the opportunity to review them along with the pre-sentencing report and the prosecutor's recommendations. My attorneys stated that many recent pleas such as mine were sentenced with probation, so they were optimistic. If this was like the most recent situations, it would take 30-45 minutes. Since the plea itself and statement of fact were not in dispute, it was really up to the judge to evaluate the prior sentences and address what standards to use in my case.

I (fortunately) had never been to a federal courtroom. I had no idea what the experience would be like. Because of Covid19, the courthouse was mostly empty except for required attorneys and staff. We waited in the hallway until it was time to go in.

Those of you who may be part of that world, you may not think much of it. For me, the entire setup is meant to be intimidating. The defendants, attorneys, prosecutors, and viewers are all on the main floor of the room. As I faced front, there was another level up where staff, court recorders, bailiffs, and whomever else was, with wood-paneled areas and, given Covid19, plexiglass. Up from there, I might have seen another level. But way up high is the judge. I felt like a five year old in a principal's office. Of course, Judge Nichols wasn't in his chair when everything started. We spent a few moments getting some of my family members connected on the phone line.

The surroundings are one thing. The pomp is another. "All rise", that sort of stuff. All meant to put a defendant "in his place". At least they don't wear colonial wigs. So, after we had all arisen and the initial figurative anointing of the proceedings were completed, the prosecutor would state the People's case against me.

I mentioned my attorney's assessment this this would be a relatively short affair. Well, I don't know if it was all Matthew Grave's influence, but the prosecutor had spent considerable time (and theatrical training?) in preparation. He was very proud of his PowerPoint presentation. He spent a bit of time on the overall "context" of Jan 6, including many things that had nothing to do with me.

The prosecutor then began to discuss, in insane detail, the very little he knew of what happened that day with me. Every frame of video was shown, to expose any little change in facial features or body language. The impression he was trying to make was that I was some terrible monster that must be dealt with firmly. He mentioned that I looked as though I was trying to intimidate officers (none of whom I saw). He measured seconds, inches, feet. I had mentioned in a prior post about what happened that day. In a moment of poor judgement, I took an already-damaged chair that was in the middle of the stairs and threw it to the side of a hallway, then stood and collected myself. This was like a 1/2 hour of the prosecutor's presentation, where he ended stating I had a "menacing glare".

He didn't show me calmly walking forward with my phone, recording some protestors talking to officers. He didn't show me moving to the other side of the hallway to hear more conversations. There is no mention of the agitator who sprayed the officers, resulting in them attacking protesters. No significant discussion of me being pushed by an officer as I turned to leave. All that is left out. Nope. What was not left out was my reflexive reaction of reaching out to stabilize myself and grab whomever had pushed me. The glorious PowerPoint had an overblown screenshot that is pretty unviewable, but the "context" of course was that I had somehow assaulted an officer. This was the insinuation.

And finally, after I was tackled to the ground, the prosecutor decided that I was resisting arrest. I was being told to stay down by one officer, could not hear the other officer (a hearing aid had fallen out of my ear), so I thought it was safest to stay put. I had never been tackled by an officer or engaged with police in my life. I had already been shaken by seeing the agitator spray the police, and the resulting melee. But, well, I guess everything would be my fault.

In addition to a fine use of fonts, colors, and media, the prosecutor had a staged delivery, like Orson Welles producing War of the Worlds.

This presentation took close to an hour, before my attorneys could respond. They did present a case based on other sentences that had been handed down. They defended the reality that I did not see any officers when I came down the stairs and did not have malicious intent. They presented that I was trying to stay safe by not getting up. I will say, though, that I think they were blindsided by the depth of the presentation by the prosecution. There were no counter-videos of other actions. There was no PowerPoint.

I then was given the chance to speak. I lumbered myself up to the microphone, neck crooked back so I could look up at the judge. I expressed my remorse at all that happened that day. I was emphatic that I would not do anything to an officer as far as intimidation or not following instructions. Heck, I'd lived 52 years as a respectful law-abiding citizen. I certainly was not attacking or resisting officers as presented by the prosecution drama society.

We all had to pomp out of our seats so the judge could return to his quarters to consider all the evidence. After about 15 minutes, he returned. I had no idea what to expect. Usually I have a sense. I'm typically in environments I understand, like reading body language at a business meeting, or running a church voter's meeting. My wife was a few rows back in the almost completely empty gallery area. We looked at each other as we rose for Judge Nichols' return. We had been in the courtroom close to 2 hours.

The judged weighed the evidence - my background, the sincerity of my remorse, the presentencing report, and the discussion at the hearing. He said that he didn't think I was doing anything to resist arrest, given that I had never been in that situation before, and that I was truly unsure of what to do. He seemed to give some credence that I had a menacing glare at one point.

Here's the kicker. He said that, in weighing sentences for me, one key factor was that I was an executive with the means to absorb a fine. He didn't think that was punishment enough. Nor was my losing my multi-million dollar business. He left the impression that if I would have made less money, I would have gotten probation.

He then sentenced me to 30 days in a Federal Prison.

I was speechless. I don't know what happened next. It was a blur. My attorneys I'm sure said some things to me. I looked straight ahead at a paneled wall. Some official young woman walked up to me and read a document that I needed to say I understood. I didn't really hear a word she said. With all I had been through, the prayers for mental strength to rebuild my life, the blow after blow from the media, the personal condemnation from family and friends, and the judge thought I needed more deterrence.

I think it was ABC News that was outside the courthouse. My wife and I decided to exit a different way, and my attorney spoke to the news. I don't know what he said, and to this day I have not heard the clip from the national TV reporting that evening. I cannot dignify what has happened by giving them any of my attention.

In moments like this, where one is faced with a reality that one has never comprehended, there are no words or emotions. Here I was, a Friday night in DC. Was I all over the news? Would people recognize me? Would I be sitting somewhere and see my face all over CNN? I didn't know. We went back to our hotel. We sat in the lounge and ordered food we barely ate.

We had planned to go to our vacation spot on Captiva Island because we thought we were putting everything behind us. We cancelled. We still took a trip to avoid any local press at our house (our daughter had also left to visit some relatives in a different state).

How does one prepare for 30 days at a federal facility? What would it be like? How would I ever be the same? I had no idea.