How Judge Came To Aid Of Prosecutors When A Billboard For NSA Whistleblower Reality Winner Went Up

17 Jul 2018 Kevin Gosztola

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Reality Winner billboard in Augusta, Georgia. (Credit: Whistleblower Support Network)

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When a loosely knit group, the Whistleblower Support Network, put up a billboard in Augusta, Georgia, for NSA whistleblower Reality Winner, it did not take long for a federal judge hearing the case to scold defense attorneys.

However, Winner’s defense had absolutely nothing to do with the billboard, which went up on June 6, before Winner accepted a plea agreement from the United States government. It was put up by activists, who did not coordinate at all with her attorneys.

Chief Judge James Randal Hall’s reaction was another example of how the court has often been against Winner’s defense, including multiple decisions against bail. It also may have confirmed that the plea agreement was the least worst outcome for Winner when considering the risks of going to trial.

Winner pled guilty to one count of violating the Espionage Act when she disclosed an NSA report that claimed Russian hackers targeted United States voter registration systems in the 2016 election. She will likely be sentenced to 63 months in federal prison in August or September.

Naomi Pitcairn (@naomipitcairn), an activist and artist with the Whistleblower Support Network, told Shadowproof, “Since the judge was ruling against every motion that the defense team put forth, we figured it can’t hurt to push him because he’s already as bad as he could be. So we decided we’d like a billboard somewhere he’d have to see it when he drove to work.” (Note: Two different judges, Hall and Brian Epps, have issued decisions related to the case.)

The billboard was installed on Washington Avenue, a main thoroughfare that goes into downtown.

A day after the billboard went up, Hall issued a stern order [PDF] and threatened “contempt proceedings or other measures” against Winner’s defense attorneys.

Hall invoked a local criminal rule in Georgia that is supposed to ensure publicity does not inappropriately influence potential jurors.

In an interview recorded on June 26, Billie Winner-Davis, the mother of Reality Winner, recalled how she sent pictures to Titus Nichols, one of Winner’s attorneys, when she first saw the billboard.

“The very next day I received a text from Titus and he said, well, it took less than 24 hours for the judge to yell at them about the billboard,” Winner-Davis said.

This reaction spurred media coverage of Winner’s case. As Winner-Davis said, “It was not only do we have this humongous larger-than-life billboard of Reality Winner with her picture and this important message and this really serious question that was asked on the billboard, but you have a judge issuing what some people have seen as a gag order reminding them that [they] are not allowed to go out and publicly talk about [their] case.”

She also heard from her daughter that Nichols and attorney John Bell were in another Georgia courtroom. The judge asked if there was going to be a billboard for the case he was hearing. It was a whole different case, but the judge wanted to be certain they weren’t going to make a habit of using billboards to win their cases—even though there was no evidence of involvement at all.

The billboard, which will be up until August 11, says, “Veteran, Reality Winner, jailed one year, no bail, no trial, for exposing threats to the U.S. elections?” Below is the hashtag, “#Justice4Reality” and the website, StandWithReality.org, that actually had nothing to do with the decision to put up the billboard.

Original Reality Winner billboard, rejected for the words “indefinitely detained.” (Credit: Whistleblower Support Network).

Initially, the Whistleblower Support Network wanted the billboard to read, “Veteran, Reality Winner indefinitely detained in a Georgia jail…” and “Truth On Trial.” But although the company that put up the billboard, Lamar Advertising, was fairly easy to work with, they would not permit the activists to use the words “indefinitely detained.”

Lisa Ling (@aretvet), a former U.S. drone technician and whistleblower, is a prominent advocate for Winner. She was part of the effort to install a billboard and believes it was unreasonable for the judge to chastise the defense.

As Ling recalled, the prosecution put out a “press release that conveyed their narrative” immediately after her arrest in June of last year. Winner’s defense was “not allowed to speak” to Ling about critical aspects of the case, even though she was involved in groups building support for her among the public. They could not go to the press to counter attacks when prosecutors labeled her a “terrorist sympathizer” in court.

The issue came up during Winner’s arraignment and detention hearing on June 8, 2017. Prosecutor Jennifer Solari urged Judge Epps to “reinforce” the rule on publicity because Nichols had appeared in the news media and granted interviews to multiple newspapers. He commented on “evidence in the case, the defendant’s guilt or innocence,” and the “credibility of the actions, the evidence, or the witnesses of the government.”

Solari claimed this was all a part of ensuring the government has a “fair opportunity to present its case,” however, Nichols contended the government’s press release was far worse than anything he said in the media.

The government’s press release stated, “Once investigative efforts identified Winner as a suspect, the FBI obtained and executed a search warrant at her residence. According to the complaint, Winner agreed to talk with agents during the execution of the warrant.”

“During that conversation, Winner admitted intentionally identifying and printing the classified intelligence reporting at issue despite not having a ‘need to know,’ and with knowledge that the intelligence reporting was classified. Winner further admitted removing the classified intelligence reporting from her office space, retaining it, and mailing it from Augusta, Georgia, to the news outlet, which she knew was not authorized to receive or possess the documents,” the release added.

It did not mention that FBI agents did not read Winner her Miranda rights. Prosecutors publicized a confession that was obtained through coercive tactics and later challenged by defense attorneys in court.

Nichols suggested someone possibly connected to the prosecution had raised alarms about cell phones and computers Winner had in her possession to imply a “cyber warfare” operation was ongoing at her house on Battle Row. He described this as an “abuse of the press.”

“If the prosecution [was] allowed to put out a press release the public can see, what is the difference between that which has many more words and is much more weighted toward the fact that she’s guilty—what is the difference between that and a billboard? They’re both available to the public,” Ling argued.

Possibly, the government was concerned that potential jurors would be open to arguments that Winner did not deserve punishment for disclosing the NSA report on election hacking.

Ling described walking around talking to people in Augusta. When they learned about Winner’s case, they could not believe the case was unfolding in Georgia. She had at least 25 conversations and in most of them the people she spoke to were persuaded that this was not merely a black-and-white case of criminal misconduct.

While there will be no trial, Winner-Davis greatly appreciated the Whistleblower Support Network for putting up the billboard.

“I can’t thank them enough,” Winner-Davis said. “It was kind of a wake up. Wake up, Georgia. Wake up, Augusta. This is happening, and then to get that kind of response out of the court, number one, is kind of scary, to get that response from a judge. But then again it’s also telling. It’s very telling to me that he didn’t want that.”

It demonstrates how far the U.S. government will go to ensure whistleblowers are convicted and put behind bars. Despite the tradition of freedom of speech and freedom of the press under the First Amendment, the government will twist any rules governing publicity to make it next to impossible for a whistleblower to convince the public what they did was in the public interest.