Content warning: Graphic language of a sexual nature.
Well, before jurors enter today we are hitting the ground running with Judge Kelly’s position on inquiries at trial about confidential human sources (CHS).
Judgee Kelly: I'm going to continue to require counsel to proffer to me and the government any CHS-related lines of inquiry they want to explore on a given cross-examination. In an earlier motion, the government called it a "preclearance procedure" and the defense objected.
Kelly said he's not asking the government to preview every single part of their examinations, but he is treating this as he's treated other contentious issues: tee up the issue to the judge beforehand, parties can prepare responses and then consider responses and not waste time when jury is here.
“I want to make as clear as I can the lines drawn for cross-examination. As a general matter, defendants have arguments about why the FBI or that FBI had CHS informants within Proud Boys may be relevant or even certain individual statuses may be relevant but where I agree to relevance as a whole is not the issue at the moment. For cross on any CHS subject or witness, the subject of inquiry must be relevant to that witness's direct testimony. It must be relevant and within scope and witnesses must have personal knowledge,” Kelly said.
Judge Kelly said none of this is a novel concept; with respect to FBI Agent Peter Dubrowski, Kelly already ruled that Norm Pattis for Joseph Biggs could inquire about CHS in Telegram chats because Agent Dubrowski is the Telegram witness. The mere fact that there were CHS in those chats is relevant to the argument Pattis made on Tuesday.
“It strikes me that this is relevant but I did preclude Pattis and other counsel from inquiring about the status of particular individuals because I fail to see how any individual CHS status was relevant to how the jury may understand Telegram chats,” Kelly said. “No other counsel made an argument to me about the identity of other CHS in the chat and one is not apparent to me now in any event.”
In the end, Kelly said if counsel wants to get CHS-related questions in, they should raise it him outside the presence of the jury and they can discuss the relevance.
Conor Mulroe, the prosecutor, said it was relevant for the jury to understand that members of the Proud Boys, in their various chats, had “great hostility for informants” and discouraged members from engaging with law enforcement.
While Kelly didn’t think it was a “mystery” that people might dislike the use of confidential human sources, he struggled to see why he should include it. Mulroe said there was an idea raised on Tuesday during cross by Sabino Jauregui, the defense attorney for Henry Tarrio, that Tarrio was cooperating.
“I don't think it's a vacuum of information where the jury would assume people are ill-disposed against confidential human sources. Ethan Nordean was one of Tarrio’s top three-ranking men and displayed a hatred toward the federal government. That goes toward the probative element,” Mulroe said.
Mulroe also raised an issue about objections to offensive language in exhibits. While prosecutors have argued that the jury is entitled to see the way the defendants speak to each other and draw inferences, and the judge has largely already agreed in this case historically, he struggled to find the probative value in a text where Nordean says he would rather watch someone “suck giant cocks” instead of cooperate with the federal government.
Nordean’s attorney, Nick Smith, said the language was highly prejudicial and may, in light of a recent line of questioning from defense attorney Norm Pattis, prejudice the jury. On Monday, Pattis was conducting cross of FBI Special Agent Peter Dubrowski and as he asked him biographical questions, he elicited testimony from Dubrowski that indicated to jurors that he was gay. Smith seemed concerned that between that bit of questioning and the language in the evidence, the jury would be “highly prejudiced.”
Judge Kelly said the phrase was “crude” but he wouldn’t exclude it. It showed the antipathy that Nordean had toward someone who had a working relationship with law enforcement and further, he said it rebuts the inference that was created during cross when defense attorneys suggested the government had been ignorant about the spread of confidential human sources.