Antifa Goes to SCOTUS – emptywheel

Kyle Wagner, the performatively Antifa guy charged in Michigan on a ridiculous stalking charge and in Minnesota as the narrative hook for the MN-15 conspiracy prosecution, filed for cert at SCOTUS yesterday. He is appealing a decision in the Sixth Circuit to override the decision by Michigan Judge Denise Page Hood to release Wagner from pretrial detention.

Days earlier, he successfully asked for a detention hearing in Minnesota.

The SCOTUS appeal aims to address a circuit split in the way the Bail Reform Act applies around the country.

The Bail Reform Act of 1984 authorizes the detention of a person charged with a criminal offense pending trial if a “judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person” for trial “and the safety of any other person and the community.” 18 U.S.C. § 3142(e)(1), (f).

If the detainee or the government disagrees with the district court’s judgment on that issue, they may “appeal from a release or detention order,” and ask the court of appeals to review that decision. Id. § 3145(c). But “[t]he circuits have long been split on just how searching that review is.” United States v. Wilks, 15 F.4th 842, 847 (7th Cir. 2021). “Some courts” apply de novo review, others apply “the clearly erroneous or other highly deferential standard,” and still others occupy a middle ground, conducting “independent review” tempered by “deference” to the district court. United States v. O’Brien, 895 F.2d 810, 812-814 (1st Cir. 1990).

The question presented is:

Whether an appellate court should review a district court’s order granting or denying pretrial release de novo—as the Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits have held—or whether the appellate court owes some deference to the district court’s determination, as the First, Second, Third, Fourth, Fifth, Seventh and D.C. Circuits have held?

Both the Sixth (where Michigan is) and the Eighth (where Minnesota is) Circuits, along with three other circuits, review detention appeals without given much consideration to the District Court Judge who reviewed the evidence closely said. When Sixth Circuit Trump appointee Whitney Hermandorfer overturned Judge Page Hood’s decision in August, Biden appointee Rachel Bloomekatz wrote at length about this circuit split when addressing the standard of review, which Wagner’s attorneys raise in the cert petition.

As Judge Bloomekatz explained in dissent, the majority’s approach placed the Sixth Circuit on the wrong side of the widely-acknowledged circuit split. App. 39a-43a (Bloomekatz, J., dissenting). In seven other circuits, the district court’s release determination would have been afforded some degree of deference. And the “outcome” of the appeal “depend[ed] upon” the standard of review, Dickinson v. Zurko, 527 U.S. 150, 162 (1999). As the dissent observed, under a deferential standard there was no “convincing reason to overturn the district court’s conclusion that the stringent conditions of Wagner’s release * * * are sufficient to protect the public and assure his appearance.” App. 28a-29a (Bloomekatz, J., dissenting).

The Sixth Circuit’s de novo weighing of the evidence is irreconcilable with this Court’s precedents, which hold that appellate courts must defer to trial courts when reviewing fact-bound and case-specific questions, as well as those the district court is better positioned to resolve. A district court conducting a detention hearing meets the defendant, hears from witnesses, and draws on its day-to-day experience with pretrial supervision in the district where the defendant will be released. The panel of judges on the court of appeals, by contrast, reviews a cold record and may sit hundreds of miles from the community whose safety is at issue.

How courts evaluate whether a defendant awaiting trial will be detained or released should not turn on the happenstance of geography. To ensure that this rare opportunity to resolve the split is not lost, the Court should expedite review and grant this petition.

Wagner’s cert petition also notes that the unique characteristics of the case means SCOTUS has a chance to weigh in on it before it is mooted by trial.

This case presents an ideal—and rare—vehicle to resolve the long-standing split and bring national uniformity to an important phase of pretrial criminal procedure. The issue has consistently evaded this Court’s review because of the temporary nature of pretrial detention orders. Those orders naturally expire when trial ends, so the matter of pretrial detention typically becomes moot before this Court can act. However, this petition comes to this Court on an expedited basis. There are currently at least seven weeks before the trial in this case is set to begin.

The reason why there’s time to appeal this is because, first, of delays partly of DOJ’s making (and what appears to be an attempt to coerce a plea deal by incarcerating Wagner), along with their willingness to delay for this appeal; Wagner’s trial is currently scheduled for November 3.

But the wacky posture of the case, with the bullshit case in MI and the more serious case in MN, also gives Wagner no reason to rush his bullshit MI case.

And that’s where things may get more interesting. As noted, last week Wagner’s attorney in MN, Lisa Lopez, asked for a detention hearing in that case, noting — in part — that he has already been detained on the bullshit MI charge as long as he might be sentenced if convicted.

Lastly, Mr. Wagner is not yet at, but will soon be approaching a fully served sentence. Since the Initial Appearance, the timeline in which this case will proceed to trial has drastically changed. For instance, in the interim, this case has been designated complex. Discovery issues have been raised that require a Court’s ruling and potentially significant, additional disclosures. The change in the timeline in which Mr. Wagner will be brought to trial could not have been known at the time of the Initial Appearance. The amount of time spent in custody (where it approaches a fully served sentence) certainly bears on whether there are conditions that will reasonably assure Mr. Wagner’s reappearance at future court dates.

She also noted that he has cause to ask for pretrial release in the MN case to avoid his detention mooting SCOTUS review. She described that with discovery and other delays in the MN case, he’s got additional bases on which to ask for release.

It goes without saying that discovery had not yet been provided to Mr. Wagner at the time of the Initial Appearance. Discovery is necessary to give an accurate presentation of the evidence to the Court. Without it, Mr. Wagner could not refute claims (however minimal) made by the government about the purported seriousness of the offense, Mr. Wagner’s role, and the need for detention. Discovery has since been provided to Mr. Wagner. Because seriousness of the offense and the weight of the evidence are factors to be considered at a detention hearing, information to refute those claims is material. The ability of the parties to present accurate evidence to the Court bears on whether the Court will find that there are appropriate conditions of release that can be fashioned.

Judge David Schultz, the Magistrate Judge in the MN case, scheduled that hearing for October 2.

I hope to nudge smart lawyers to look closely at this case, so will let them explain this circuit split and the way it deprives people of their presumptive freedom. I trust the Public Defenders and counsel at Hogan Lovells who have joined the case for this appeal expect this appeal, with this SCOTUS, might have a favorable result.

But I’m interested in the cultural clash that would come if SCOTUS does accept Wagner’s appeal. To be clear, it’s unlikely SCOTUS will, and if Schultz rules for Wagner’s detention in MN, it would seem that would moot it, for now, at least.

If it does get to SCOTUS, though, it would be the personification of the boogeyman Trump is trying to turn into a terrorist threat before Sammy Alito and his gang. It would bring that bullshit before SCOTUS years earlier than it’ll otherwise get there via appeals of the other prosecutions targeting Antifa.

And that could create an interesting discussion.