As readers of this blog know, I love watching lawyers work. I remember telling David Coombs, one day at Fort Meade, that it was like watching a great painter as layers and layers gradually create a picture. This week, in federal court, I watched prosecutors paint  a black-and-white editorial cartoon, then saw that picture turned full color  by defense attorney Matthew Chester (of the powerhouse firm Baker Donelson.)

A local news report elegantly summarized Chester’s argument: “Winner’s lawyers say agents made her believe she was in custody by taking her cell phone, car keys, blocking her car, and following her around her property,” But ‘blocking her car’ doesn’t evoke the image, supported by defense photographs, of more than seven cars blocking her small driveway, or the 11 FBI agents streaming through her small Augusta home.

The effect of all of this on a 25-year-old young woman, not much taller than my own (shrimpy) height): she felt as though she had no choice but to do what they asked.  “This was a custodial interrogation,” Chester said. None of the agents ever told her she was free to go, though one made sure to say at intervals, “You’re here voluntarily.”

The National Law Reporter  did even better with this headline: “Reality Winner’s Lawyers Say FBI Interrogation Was Unconstitutional.” The reporter also got down Chester’s list of why:

• FBI agents informed Winner they had search warrants for her residence, her car and her person, suggesting she was not free to leave until she was frisked.
• Agents took Winner’s car keys and cellphone as she arrived home from the grocery store.
• Winner was never advised that she was not in custody. When she asked if she was going to be arrested, agents hedged, according to defense lawyers and a transcript of the conversation, telling her they did not know.
• Winner was not searched until after her arrest—another indication that she was not free to leave.
• Agents remained at Winner’s side as she put away groceries, including perishables that had been sitting in her car in the summer heat, when they began their inquiry.
• Agents also accompanied Winner as she leashed her dog and secured her cat.
• At one point, Winner also felt compelled to ask permission to go to the bathroom, asking agents, “How’s that going to work?” according to a transcript of her interview.
• After asking if there was a place they could speak privately, agents directed Winner to a small, unfurnished room she said she didn’t like.
• During the interview, two agents blocked the entrance and questioned her as Winner faced them with her back against the wall.
• At the end of the interrogation, she was arrested rather than released.
• Agents also made what the defense described as “accusatory statements … that the evidence against her was ‘very, very, very compelling’ and that she was ‘the most likely candidate by far and away.’” They also told her she was “the prime suspect” in the possible mishandling of classified information.

• FBI agents informed Winner they had search warrants for her residence, her car and her person, suggesting she was not free to leave until she was frisked.
• Agents took Winner’s car keys and cellphone as she arrived home from the grocery store.
• Winner was never advised that she was not in custody. When she asked if she was going to be arrested, agents hedged, according to defense lawyers and a transcript of the conversation, telling her they did not know.
• Winner was not searched until after her arrest—another indication that she was not free to leave.
• Agents remained at Winner’s side as she put away groceries, including perishables that had been sitting in her car in the summer heat, when they began their inquiry.
• Agents also accompanied Winner as she leashed her dog and secured her cat.
• At one point, Winner also felt compelled to ask permission to go to the bathroom, asking agents, “How’s that going to work?” according to a transcript of her interview.
• After asking if there was a place they could speak privately, agents directed Winner to a small, unfurnished room she said she didn’t like.
• During the interview, two agents blocked the entrance and questioned her as Winner faced them with her back against the wall.
• At the end of the interrogation, she was arrested rather than released.
• Agents also made what the defense described as “accusatory statements … that the evidence against her was ‘very, very, very compelling’ and that she was ‘the most likely candidate by far and away.’” They also told her she was “the prime suspect” in the possible mishandling of classified information.

Later, I told one of Winner’s lawyers that the day had felt a little like an episode of Law and Order. “Usually,” he said, “a day in court is much more boring.”

Attorneys on both sides have military/intel backgrounds; Winner’s senior counsel (not Chester) is former NSA, Tuesday’s main prosecutor a former JAG.  The latter, who told court personnel that she missed military life sometimes, said she found “insulting” that Chester had noted the sex of the 11 FBI agents. I later told Billie Winner that the prosecutor was  the whitest woman in the room, someone who’s never had a reason to fear the police.

 

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Tuesday night, at a gathering hosted by Reality’s mom and stepdad, I met the three-legged dog, Outlaw (above), that Reality has adopted as her mascot. I also saw the small room where Winner was interviewed. I can’t see how three people could stand comfortably in there, less have the casual conversation described in one agent’s testimony:, “It looked like 3 people talking in a Starbucks line.”

Another agent described Winner’s affect that day as “flat, unemotional.” Again, I refer you to my post on “the politics of grief.” Winner’s biological father had died about six months earlier, a trauma she was still processing.  When the FBI showed up, she turned on a cheery vibe , a cheery mix of competent professional and the good Texas girl her parents raised.  As a trained intel analyst, she knew she was in trouble.  In the courtroom, we all listened to bits of the audio of that day in June, and I could feel the tightness in her voice. She wasn’t about to show these strange men what she was thinking and feeling, really.

As the hearing ended, both sides promised to submit briefs using the classified evidence that can’t be discussed in court. My guess is that the prosecution will try to drag the issue out of Law and Order, more toward Homeland  or 24, reviving their image of this kid as some kind of terrorist mastermind.  She’d joked (in a text to her sister) that she might fail her background check! She had done Internet searches on “How to make friends with the Taliban!” Worst of all, she had money in the bank, all cited as reasons to deny her bail. The judge-magistrate, Brian Epps, was persuaded enough that Winner’s still in county jail.  Still, Epps was open to Winner’s constitutional claims, and said he’d welcome the additional briefs.

Whether or not Epps eventually agrees that Winner’s confession should be suppressed, her trial will take place before a different judge, likely  not till the fall. But I’ll write here when that decision is reached, with news from the court of public opinion.