Bill Shipley, the lawyer representing Jan. 6 defendant Jacob Chansley, started the process of requesting the court to vacate Chansley’s 41-month sentence next week, Shipley confirmed in an exclusive interview with The Epoch Times on Friday.
Shipley said he intends to file a vacate-conviction motion pursuant to 28 U.S. Code § 2255 (remedies on motion attacking sentence) next week, pending government response to a letter he sent to the DOJ on Friday requesting information about Chansley’s case. That provision in the law states that a “prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States.”
On Friday, Shipley sent a letter to Assistant U.S. Attorney Kimberly Paschall to ask about the factual basis of the government’s representation of Chansley’s case in a separate lawsuit. He said he’s “prepping the battlefield” for a prospective filing to request the court to vacate Chansley’s conviction.
Surveillance Footage Release
Shipley’s move came as part of the ripple effect from newly surfaced surveillance footage of the Jan. 6, 2021, Capitol breach aired by Fox News’s “Tucker Carlson Tonight” on March 6.
Among the footage was a clip showing Chansley, unarmed, walking along with several Capitol Police officers who didn’t attempt to remove him from the Capitol building, which Carlson said shows that Chansley was not violent on Jan. 6, 2021.
“The newly aired CCTV videos appear to be materially exculpatory to Mr. Chansley on the question of guilt, as well as with respect to potential mitigation of sentencing. As such, the [Government] was obligated to produce them to the defense pursuant to the Due Process clause of the Fifth Amendment as interpreted by the Supreme Court in Brady v. Maryland,” Shipley’s letter reads. He cited Brady v. Maryland, a 1963 case in which the Supreme Court held that prosecutors must make available to the defense counsel exculpatory evidence.
“Production is also mandated by Justice Manual Section 9-5.001 and DC R.C.P. 3.8,” he noted, citing legal guidance for prosecutors on issues related to discovery.
In the letter, Shipley noted that Chansley and his former attorney, Albert Watkins, both did not see the tapes aired on Fox featuring Chansley prior to their broadcast on Fox.
“Had the videos been properly disclosed as required by law they would certainly have been used as a counterpoint to the one-sided and factually inaccurate portrait of Mr. Chansley painted by the Government in its Sentencing Statement and arguments at the sentencing hearing,” the letter continues.
Pezzola Case
Shipley based his Friday inquiry on a March 12 filing that the DOJ submitted in a separate case, namely, the prosecution of Jan. 6 defendant Dominic Pezzola. In that case, the government confronted, for the first time in court, the newly surfaced surveillance footage.
“The CCTV footage is core evidence in nearly every January 6 case, and it was produced en masse, labeled by camera number and by time, to all defense counsel in all cases,” the DOJ wrote in its filing.
“Pezzola’s Brady claim therefore fails at the threshold, because nothing has been suppressed,” the DOJ wrote, basing it on the claim that it had provided Watkins with the “necessary tools” to identify relevant CCTV evidence notwithstanding the voluminous discovery.
According to Shipley, however, the legal bar for establishing suppression of evidence is much lower.
“Suppression … is not the nefarious burying of evidence,” Shipley said in a separate interview with The Epoch Times on March 13. “It just means it wasn’t brought to light by the government. The government knew what was there and did not illuminate the fact that it was there.”
He said that the DOJ may have violated Brady in prosecuting Chansley because they didn’t identify the footage and its nature as potentially exculpatory evidence during Chansley’s trial.
“Suppression simply means it went undiscovered by the defendant beyond a point at which it could be made use of,” said Shipley, who was a federal prosecutor for 21 years. “If the government produced thousands of hours of video and said, ‘There’s a minute of evidence that’s favorable to Jacob Chansley—good luck,’ that production is not an effective Brady disclosure.”
The DOJ declined to comment.
Due Process
The video footage is relevant for reasons beyond its probative value to Chansley’s innocence or guilt, Shipley said, emphasizing that it’s important to answer the question of whether Chansley’s sentence was determined following fair due process.
“The question is: Were Jacob Chansley’s rights to due process and effective assistance of counsel violated? Were the procedural requirements complied with such that the process and outcome of his case was a fair proceeding?” Shipley asked.
“They’re clearly the kinds of videos that, had Judge [Royce Lamberth] seen them at sentencing, he might have concluded that Mr. Chansey is not the personification of evil in the way the government has made him out to be.”
Lamberth presided over Chansley’s trial and sentencing.
“That might have caused Judge Lamberth to think that maybe 41 months was too much time to give him, taking into consideration all of his conduct, as opposed to just the precise conduct the government gave,” Shipley said.
In Shipley’s letter, he asked the DOJ to answer the following questions, including:
- Were the recently aired exculpatory CCTV videos produced to Mr. Chansley’s then attorney Albert Watkins?
- If so, please identify the date and provide contemporaneous documentation of that disclosure.
- If the exculpatory videos were disclosed to Mr. Watkins “en masse” with a large amount of other CCTV video, what effort was made – if any – to alert the defense to the recently aired exculpatory video(s) prior to the change of plea or sentencing hearing?
- What is the identifying number of each CCTV camera that captured the video played in the national media beginning on March 6, 2023, with its broadcast by Fox News?
- In what manner was the identification of each involved CCTV camera communicated to Mr. Watkins prior to the sentencing hearing on November 17, 2021?
- The identities of all USCP Officers who are captured in any of the CCTV videos showing Mr. Chansley in the interior of the Capitol.
- Memoranda, transcripts, or other records of interviews, affidavits, or testimony under oath – including before a grand jury – of any Officer identified in No. 6 above, as each are potential witnesses with information favorable to Mr. Chansley.
Shipley asked the government to respond by Monday.