Rolling the tapes in court

CNN’s work to view video used in court began in March. Two months after the insurrection, federal defendants were appearing in court each day by the dozen. As defendants came through DC District Court following their arrests in their home states, judges held waves of hearings about whether to detain each of them. At those hearings, prosecutors needed to prove the alleged dangerousness of each defendant, showing how violent some were on January 6, especially toward police. The best way to do it, in many cases: Roll the January 6 tapes.

The tapes showed from police officers’ perspectives and unflinching surveillance cameras the violence of the pro-Trump crowd — law enforcement colleagues beaten and dragged and crushed in doorframes; police lines collapsing, completely overwhelmed.

Typically the court press corps sits in the courthouse to watch hearings where these moments are laid out in excruciating detail. But because of coronavirus restrictions, we could only listen to DC federal court proceedings over the phone. The judges, lawyers and defendants, however, recreated their courtrooms over Zoom videoconferences.

Another technological hitch kept these videos out of sight: While most evidence used in early federal criminal proceedings gets posted on an online public docket, called Pacer, that system can’t house videos.

As these limitations became more apparent every day, CNN and other news outlets started pushing for access. Thousands of hours of video became core to the Justice Department’s prosecution of the siege — an overwhelming trove of evidence that would be rolled out gradually to prove scene by scene the behavior of hundreds of rioters.

The West Virginia court where one defendant, George Tanios, first appeared allowed reporters to view his detention hearing as a livestream video. Prosecutors played videos of the Sicknick attack one after another, showing how each officer physically reacted to the assault. The judge in West Virginia, Michael Aloi, called the video of Sicknick “surreal” and noted how he was impacted by the severity of the chemical spray hitting the officers’ faces.

“It’s hard for me not to look at this as anything other than an assault on our nation’s home, and everything that is important to us as a people,” Aloi said at the hearing.

Of the three defendants who had video from their court cases released several weeks ago, Tanios and Chansley are fighting their charges, while Jackson was just recently charged formally and is set to be arraigned in July.

Power of video

By March, I was cataloguing in a spreadsheet every time I or other CNN reporters and producers heard video played in DC District Court hearings.

As a TV network, video is crucial to our storytelling. Crime and justice — even court itself — comes to life when video is added to our reporting toolbox. For every legal brief, judge’s opinion or hearing we write about or discuss on air, seeing an assault or a victim’s reaction replayed puts into focus the stories of these cases.

By this spring, shaky livestreamed social media video and network TV wide shots of the Capitol set the scene, and Democrats at then-President Donald Trump’s impeachment trial used it to show the impact he had on his followers. But in covering the judicial response to the attack, we were still struggling to recreate the moments that the Justice Department has since found to be most the egregious, and to revisit them critically as rioters face charges.

“Every time I look at these videos, it just chokes me up,” Judge Emmet Sullivan said during a hearing in the case, commenting on video the public and press corps has not seen. “Let me stop for one second. It’s shocking what these videos depict. It’s shocking. That this is a battle scene at the United States Capitol, the heart of democracy in Washington, DC. I had to look at these a couple of times before it really sunk in what I was watching and it’s hard to describe. It’s hard to believe.”

Without being able to see the tapes, our reporting team cross-referenced dozens of pages of court records to understand the assault blow-by-blow, as judges and attorneys wrote to describe them, noting each defendant and officers’ movements.

At the same time, as we struggled to parse specifics of the most horrific assault cases from January 6, the nation was moved by an unrelated court proceeding that, ironically, rested upon the power of video: The death of George Floyd.

The resonance of the video that bystander Darnella Frazier shot on her cell phone of Floyd’s murder in Minneapolis last year, and the live footage from the trial of former Officer Derek Chauvin for Floyd’s death, had sparked a national reckoning and amplified calls for an overhaul of policing in this country.

“Video helps the American people trust that justice is being done,” Gabe Roth, executive director of the court transparency advocacy group Fix the Court, told me recently. “If you see something, you’re more likely to internalize it, more likely to understand it.”

“This is a major moment in American history that needs to be digested and seen and understood,” he added, about January 6. “If you’re piecing together the story of the day, you want to be able to have every angle.”

Impediments to access

I repeatedly inquired with the court and the Justice Department about the Sicknick assault tapes and other videos shown in Capitol rioter hearings, and received assurances that the public evidence soon would become available — once a technological solution was found that could allow its distribution.

A video portal never came.

Instead, a debate over video in the Capitol riot cases emerged in court as cases progressed, with prosecutors first needing to share the evidence with rioters’ defense teams. The Justice Department shared the view of the Capitol Police, whose top lawyer wrote in court early this spring that the public release of closed-circuit video around the Capitol could create a security risk. Neither seemed interested in a solution that could make video accessible to the public on the day it was newsworthy.

The Justice Department, now led by former appellate Judge Merrick Garland, argued it believed video from early hearings, if distributed widely, could unfairly hurt Capitol riot defendants’ access to fair trials — even if that video was used in open court and not protected by a judge’s order to keep it under seal, meaning only accessible by the parties. Still, judges were deciding to release or detain defendants, often noting the horrifying violence toward police the video showed. Few still could see what they saw.

Judge Paul Friedman pointed out the paradox at a hearing in late April. “One thing I will say about the videos is I wish that every member of Congress would be required to view them, because they’re chilling,” Friedman said.

“They’re really upsetting. And those who have views about what happened or didn’t happen without hearing or seeing it with their own eyes it’s — of course a lot of people who have views on what happened who were actually there. But each person, each senator and each congressperson saw it, the events of the day from a different perspective and were not everywhere at every given moment, and they saw snapshots.”

Newsrooms banding together

Our efforts to see the video from court inched forward, and I worked with the DC District Court to be able to sit in on a few Capitol riot hearings — becoming the sole outside spectator witnessing those hearings in person in April.

Drew Shenkman, a CNN lawyer who works on First Amendment projects especially out of Washington, realized our effort needed the help of courtroom lawyers from the firm Ballard Spahr, which often sues on behalf of media organizations seeking transparency and access.

That was just one case, among hundreds in the Capitol riot investigation.

The news outlets that have banded together are: CNN, ABC News, NBC News, CBS News, NPR, the Associated Press, Buzzfeed News, Dow Jones and its newspaper the Wall Street Journal, Gannett, E.W. Scripps, the New York Times, Pro Publica, the Los Angeles Times, the Washington Post and the broadcasters Gray Media Group and Tegna.

“In the face of growing denialism about January 6,” Shenkman said this weekend, “video is the undeniable record. The officer-worn body cameras are especially important. The assaults on officers that day were real and the videos, while tough to watch, show that the attacks were incredibly violent.”

Three releases last week

In just a few days, the release of the footage has renewed the conversation around the violence of Trump supporters toward police, who were attempting to keep order in the crowd and protect the Capitol.

More than a dozen of the media coalition’s video access requests still aren’t decided, and the Justice Department in some has asked to block rebroadcasting of video, if it’s released.

The Justice Department continues to arrest new defendants. And the media’s push for access is far from over.

Investigators still seek to identify more than 250 people they believe were violent or assaulted police on January 6, according to the DOJ about two weeks ago.

None of the defendants have gone to trial yet. The trials will likely bring another set of courthouse moments where video becomes crucial to understanding the ferocity of the uprising.