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Last week, @SlowBoy posted about Ray Epps being sentenced to probation and asserted this was a "uniquely generous outcome" for Epps. I was puzzled by this assertion and so I asked some clarifying questions and most of my responses were heavily downvoted. As a barometer of community sentiment, I tried to understand why my questions would be met so negatively and so this post is my attempt to formulate some theories. I am open to feedback on how I can post better!
Theory 1: I focused on the wrong parameters for evaluating Ray Epps' situation
I would like to think I have some practical experience in evaluating whether a given defendant is treated with unusual leniency/harshness. I once had a client who was arrested along one other guy at the same place, both for illegally possessing a firearm. Both were felons with comparable criminal history but in addition to a gun, the other guy also was caught with what the cops referred to as a "pharmacy" of drugs in his backpack (very likely worth at least $20k on the street) and also very openly admitted to police that the gun was his. So it was really weird that my guy got charged with a gun felony while the street pharmacist was charged with only a gun misdemeanor and offered a diversion program on top of that (charges get dismissed if he stays out of trouble). I investigated more of the pharmacist's background and found out he's been arrested at least three times within the last year for exactly the same conduct (gun + drug backpack) and each time no charges were filed. I had no way of proving this conclusively but the only explanation that made sense is that he was an informant of some kind. Letting the prosecutors know I was aware of pharmacist's disparate treatment was likely instrumental in getting my guy a misdemeanor plea offer.
Obviously that was a serendipitous comparison scenario, but when I was presented with Ray Epp's situation the reasonable starting point was to examine the severity of charges and sentences that other J6 defendants received. The DOJ and other sources make this information very easy to find. At least from a bird's eye view, nothing about Ray Epps pleading guilty to misdemeanors (505 out of all 1,265 J6 defendants also did), avoiding jail time (282 out of 749 convicted J6 defendants also did), or avoiding pretrial detention (70% of J6 defendants also did) seemed unusual.
If there are factors besides the severity of the charges, sentencing, or pretrial detention that I should have evaluated instead, I would love to know about them. Maybe I can even use this information at my real job.
Theory #2: I posted false or misleading information
Maybe I focused on the correct parameters, but DOJ information is either false or misleading? That's certainly a possibility, and it wouldn't be the first time a government agency made shit up. But if so, either some evidence of this duplicity or some alternative source should be offered and I'm aware of neither.
Theory #3: I posted truthful information that people thought was false or misleading
This is an online forum and we often shoot from the hip when posting. Sometimes mistakes happen. @HlynkaCG for example responded to my questions by offering two points of comparison as a contrast to how Ray Epps was treated: "we had so-cal soccer-moms and that guy who took a selfie sitting at Nancy Pelosi's spend over a year in prison only to be released after pleading to misdemeanors." I don't know who the soccer-moms are but the Nancy Pelosi reference is presumably referring to Richard Barnett who was convicted of 4 felonies and sentenced to 54 months in prison, definitely not "released after pleading to misdemeanors". As I showcased more than a year ago, this wouldn't be the first time someone here makes a confident assertion on the topic of J6 or on related election fraud theories that are not necessarily reflected in reality.
Speaking personally, I would react with genuine gratitude if anyone pointed out I had made a false or misleading assertion, because it's not something I ever wish to repeat intentionally. Part of that effort requires introspection to investigate what went wrong in the process. I again maintain there is absolutely nothing shameful about making mistakes, and part of what I value about this community is how much we celebrate remedial acknowledgement and introspection for faulty thinking and I hope HlynkaCG can shed light on the matter.
Theory #4: I posted truthful information that could lead to false or misleading implications
This reaction is commonly encountered, and likely stems from a poor decoupling ability. For example, it's likely true that Africans had a higher life expectancy enslaved in the US than they did free in Africa at the time of the slave trade. Whether or not this is true is purely a factual determination, but many people can't help it and get ahead of themselves to pre-emptively address what they believe are necessary implications of this fact. The only way that the "slavery can raise life expectancy for the enslaved" fact could in any way threaten the position of "slavery is bad" is if the former is a significant pillar of the latter, or if someone had succumbed to 'arguments as soldiers' mentality. The classic example of this scenario is AOC's famously-lampooned "Factually inaccurate but morally right".
And so I've often wondered if this is driving part of the negative reaction to fact-checking J6-related claims. Maybe challenging one specific premise (Ray Epps was treated with unusual leniency) necessarily challenges an overall conclusion (J6 defendants are treated unfairly) because someone assumes the two are coupled at the hips together:
I don't know what the solution is to this lack of decoupling. It's really hard to teach nuance.
Theory #6: I'm ruining the fun
People have deeply cherished beliefs they want to hold on to, and challenging those beliefs ruins the prospect of a good time. This is the least charitable theory obviously. The operating principle of the Motte is to be "a place for people who want to move past shady thinking and test their ideas" but unfortunately this has and will forever risk being prescriptive more than descriptive. Cognitive dissonance and confirmation bias clearly exist but it stretches my empathy to its limits for me to try and understand what could motivate someone to sacrifice truth-seeking in order to pursue belief affirmation points. I don't understand it and, given the nature of its manifestation, I don't anticipate a transparent confession. I offered a template of what an introspective admission could potentially look like when I admitted to having previously believed in abolishing police/prisons despite my awareness that I lacked the ability to defend those beliefs, but maybe that confession was only possible because enough time had passed to give me distance from the sting.
True to the spirit of this post, I'm open to being proven wrong.
I didn't reply to you at the time because I thought the conversation up to before you posted had covered everything important. I didn't downvote you.
I think you posted true-but-misleading information. Sure, Ray Epps was not the only J6 protester to only receive probation. In that respect, his situation is not unique. However consider the other elements that make his case totally unique:
He is on video having encouraged protesters to go into the Capitol Building, and on record before J6 wanting to invade the Capitol. He did not go into the building even as he encouraged others to do so.
He was on the FBI's most-wanted J6 protesters list up until the moment news organizations (Revolver News) started covering him. He was only charged after Merrick Garland was asked about him in a hearing. (I do not have the video in front of me, as I recall it Garland was asked about Eps not by name but in terms that could not have referred to anybody else.)
Eps was undercharged relative to other manor J6 figures, especially in the context of other figures being overcharged. (What's the "baseline charge" protesters deserve? That's a subjective unanswerable question. However I think it's hard to contest that the whole J6 prosecution is unprecedented in American history, and even if you think DOJ is justified, it's hard to argue why Eps wasn't charged more seriously.)
Leftwing news outlets and even the judge at trial all bewailed how poor Eps was made to suffer as the victim of conspiracy theories. This is uniquely generous! Maybe there are some other outliers (I know there's some grandma who went viral by apologizing for her participation and calling MAGA a cult). But, by and large, the same people calling J6 an attack on democracy are saying Ray Eps is a victim. Why? -- he wanted to attack democracy! I am not aware of the judges treating anyone else so leniently.
Epps' suit against Fox News will be allowed to continue, suggesting the possibility that he could win millions of dollars. It's shameless. I don't suppose some secret tribunal met and decided that Ray Epps gets his payout. But nobody in DOJ is working to stop him from making millions. If the DOJ didn't like this, they could try to find something else to charge him with. (Double Jeopardy is no guarantee -- the DOJ made big headlines about potentially investigating Darren Wilson over shooting Mike Brown. If Merrick Garland wanted to, he would get on TV and say Epps deserves to be looked at again.)
Conclusion: Ray Epps was handled uniquely leniently, in a way most people would understand those terms. Epps' treatment only looks normal within the context of an excel sheet of convictions, which doesn't tell nearly the full story.
Two things can be true here. (1) that Eps committed crimes on J6 for which he deserves to be convicted and (2) he is unfairly the target of right wing conspiracy theories of being a federal agent. Eps can be a bad person in one sense and a victim in another. There is no contradiction here. In terms of how judges have treated other defendants, what other defendants have been the target of conspiracy theories like Eps?
Maybe I am the one who is confused but I'm pretty confident the DoJ does not have a mechanism to force someone to drop a civil suit. If Fox News did defame Eps by calling him a federal agent when he wasn't, why should the DoJ step in (to whatever extent it can) to stop him? Maybe Eps' actions are shameless if you assume he is a federal agent but from another angle he's another entity (like Dominion) defamed by Fox News and trying to protect his reputation.
Is there any legal basis for this at all? Would I be able to escape a criminal conviction by having a bunch of people on twitter talk about how I was a federal agent? If this is actually a criteria that's being used to adjust sentencing and shift legal outcomes, I've just come up with an incredibly profitable new business idea that will help get people out of sticky prosecutions even when there's direct video evidence of them committing the crime! Of course I don't actually believe that's the case - he's not being let off due to an actual legal principle. There are hundreds of conspiracy theories circulating about Donald Trump, and I highly doubt that he's going to be able to dodge the charges by using a similar precedent.
But Eps didn't escape a federal criminal conviction. He pleaded guilty to federal charges. My understanding is judges have a pretty wide latitude to consider a defendant's circumstances at sentencing, so nothing explicitly prevents a judge considering these factors.
My apologies for being unclear - please replace "criminal conviction" with "prison sentence".
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