UPDATED: Feds Fight Efforts to Release Reality Winner From Prison With Reported COVID-19 Outbreak

Federal prosecutors are fighting efforts to release Reality Winner, a former National Security Agency contractor, from a prison where inmates have contracted COVID-19. 

Bobby Christine, U.S. attorney for the Southern District of Georgia, argued against commuting the remaining 19 months of the sentence for Winner, who was convicted for tipping media about Russian efforts to hack the 2016 election.

Christine argued that District Chief Judge Randal Hall has no jurisdiction to consider the motion, because Winner has not yet exhausted administrative remedies with the U.S. Bureau of Prisons.

Prosecutors also argued that 30 days have not elapsed since Winner first requested release to home confinement, after two fellow inmates at Federal Medical Center-Carswell, in Forth Worth, Texas, contracted the virus.

Winner filed her request April 8, according to her lawyer. But prosecutors insisted the prison social worker responsible for reviewing compassionate release requests has not yet received it.

“Because Winner has not demonstrated how COVID-19 specifically affects her, apart from pure speculation, nor shown that [Bureau of Prisons’] plan is inadequate, nor established that Carswell FMC is unable to adequately treat her, her request for compassionate release based on COVID-19 fails,” Christine argued in a brief signed by Assistant U.S. Attorneys Jennifer Solari and Justin Davids.

“BOP has also informed the government that the two individuals at Carswell FMC that tested positive had been purposely transferred to the facility, and immediately quarantined,” prosecutors contended. “They were never in the general population at Carswell FMC.”

Texas news media accounts paint a different picture.

On April 3, the NBC television affiliate in Dallas reported that a pregnant Carswell inmate rushed to a Fort Worth hospital to deliver a premature baby was critically ill with a suspected case of COVID-19 and was placed on a ventilator. According to the report, the prison was locked down, and 31 inmates were quarantined.

Days later, on April 8, the television station reported that six Carswell prison guards also were showing symptoms of the virus and were awaiting test results at home.

KERA, NPR’s Dallas affiliate, also broadcast an interview with an inmate, who said the prison has run out of soap, toilet paper and sanitary pads, and that inmates sleep four to a cell, less than three feet apart.  

And then on Wednesday, the U.S. Justice Department announced the  COVID-19 death of a 61-year-old male inmate at nearby FMC Fort Worth. 

Citing COVID-19 diagnoses at Carswell, Winner counsel Joe Whitley, a former U.S. attorney for Georgia’s Northern and Middle Districts, on April 10 petitioned for an immediate hearing to commute the remaining 19 months of Winner’s 63-month sentence to home confinement. 

Whitley also cited Winner’s history of respiratory illness and an immune system compromised by bulimia that he said makes her particularly vulnerable to the ravages of the virus. 

In a new brief filed late Wednesday, Whitley branded as “insensitive” and “disingenuous” prosecutors’ arguments that Winner “should have known what she was signing up for” when she entered her plea.  

“One thing Reality did not sign up for is a possible death sentence, or a punitive penalty that may leave her grievously ill,” he wrote.

Winner pleaded guilty in August 2018 to one count of espionage for giving online magazine The Intercept a classified document detailing Russian military intelligence efforts to gain access to state election systems in the run-up to the 2016 election.  Winner became the first person prosecuted by the Trump administration for leaking to the media.

Hall denied Whitley’s request for an expedited hearing, citing administrative difficulties associated with the pandemic that have led courts across the state to drastically curtail court operations and limit access to federal and state courthouses. 

Prosecutors claimed the government is “sensitive to the issues presented by the COVID-19 pandemic,” “is monitoring the situation constantly,” and “does not minimize the concern or the risk.”

But they insisted the Bureau of Prisons “has taken aggressive action to mitigate the danger and is taking careful steps to protect inmates’ and COP staff members’ health.”

But U.S. Attorney General William Barr on April 3 issued a  finding that “emergency conditions are materially affecting the function of the Bureau of Prisons.” The attorney general then directed the COP to immediately review all at-risk inmates for potential release to home confinement, not only those who were eligible for transfer under pre-COVID guidelines. 

In his brief, Whitley labeled as “demonstrably inaccurate” prosecutors’ claims that federal prisons have comprehensive precautionary measures in place to prevent the spread of COVID-19. 

On Tuesday, the Bureau of Prisons reported that 540 inmates and 323 staff members in the nation’s federal prisons have tested positive for COVID-19. Nearly two dozen inmates have died, according to The Leadership Conference on Civil & Human Rights, a coalition of more than 200 national organizations.

Of those cases, Whitley cited 257  new inmate infections, 15 deaths, and 109 staff infections that have been reported since he first petitioned for Winner’s release two weeks ago. 

The ACLU has filed class action suits against the Bureau of Prisons over rampant COVID-19 infections in federal prisons in Louisiana, Connecticut, Ohio, and Connecticut. But  a national coronavirus map posted on the Bureau of Prisons website only shows where 50 of those inmates are housed.

Whitley said that Winner has seen people taken out of the prison on stretchers, “indicating that the COP’s reported number of cases are understated.”

And he once again urged Hall to expedite a ruling on commuting Winner’s sentence, “especially in light of the government’s ‘there’s nothing to see here’ position and in view of the well-documented … inaction by the BOP.”