This transcript was automatically generated and might contain errors.

[0:00] Dori Berinstein: Welcome to episode 5.

[0:02] Sally Horchow: The Government Always Wins.

[0:09] Dori Berinstein: I'm Dori Berinstein, and I'm Sally Horchow, and we are the producers of Is This a Room on Broadway.

[0:16] Dori Berinstein: On June 3, 2017, 11 FBI agents appeared at the home of Reality Winner, a 25-year-old Air Force linguist, to interrogate her about leaking a classified document proving Russian interference in the 2016 election.

[0:33] Dori Berinstein: Is This a Room?

[0:34] Dori Berinstein: The critically acclaimed Broadway play reenacts the verbatim transcript of that interrogation.

[0:40] Dori Berinstein: When we started the journey of bringing Is This a Room to Broadway, we knew there was so much the public didn't know about Reality's story.

[0:47] Dori Berinstein: So we created the podcast, This Is Reality, to provide a deeper look inside the very important and very timely story of Reality Winner.

[1:02] Dori Berinstein: In our last episode, we explored the harrowing journey of Reality's arrest and subsequent bond hearings.

[1:08] Dori Berinstein: In this episode, Reality's former defense attorney, Titus Nichols, details the legal challenges faced by Reality.

[1:16] Dori Berinstein: Titus Nichols was appointed by the court to represent Reality at her first bail hearing on Monday, June 5th, 2017.

[1:23] Dori Berinstein: He was assigned to Reality's case because he was one of a few lawyers near Augusta, Georgia, who had a security clearance due to his service in the military.

[1:31] Titus Nichols: I recall how the proceedings were unusual from the very beginning.

[1:35] Titus Nichols: So typically what happens is when you're first brought to court, you enter your plea of guilty, not guilty, and then you argue over bond with the judge.

[1:44] Titus Nichols: That's usually done within your first hearing.

[1:44] Titus Nichols: So I said to the judge, Your Honor, I've had a chance to talk to my client. We are ready to address bond.

[1:52] Titus Nichols: The prosecutor immediately stands up and says, Your Honor, we're not ready to go forward.

[1:57] Titus Nichols: Um, we asked for a continuance till Thursday.

[2:01] Titus Nichols: Again, that's kind of odd. Why do you need three days to prepare? Because all the government's gonna do is ask that she be denied bond?

[2:08] Titus Nichols: Again, still not understanding the full scope of it.

[2:11] Titus Nichols: It wasn't until the Department of Justice press release about Reality Winner that the full scope of Reality's case became clear.

[2:26] Titus Nichols: The DOJ only does that when they want to spike the football.

[2:29] Titus Nichols: People are prosecuted by the federal government every single day.

[2:33] Titus Nichols: They are prosecuted for the most ticky-tack offenses, and the DOJ does not put out a press release.

[2:39] Titus Nichols: They only put out a press release when they get the big fish.

[2:43] Titus Nichols: Usually the press release comes from the U.S. attorney for that district, and they're appointed by the president.

[2:49] Titus Nichols: So they have a political motivation to brag, but if they get some defense contractor, then they put out a big press release and they can brag to everyone about how tough they are on crime and all that type of stuff.

[3:01] Titus Nichols: So it's all politically motivated.

[3:02] Titus Nichols: The news coverage from that moment forward was relentless.

[3:06] Titus Nichols: The mystery is unraveling this morning about the young woman who took the bold step of sending a top-secret document to reporters to prove the Russians were hacking the American election.

[3:15] Titus Nichols: It's a clear violation of the law, if true, and her life will never be the same as the US government and the FBI prepared to make an example out of her for leaking.

[3:25] Titus Nichols: Despite all of the national news attention, the legal team was prepared to fight for bond for Reality.

[3:30] Titus Nichols: Although, as the days went on, it was looking like the cards were stacked against her.

[3:30] Titus Nichols: So we were prepared to argue for bond.

[3:36] Titus Nichols: Because when it comes to arguing bond, it's not a question of whether the person's guilty or innocent, it's a question of several factors the court has to look at to determine is this person likely to return to court to face trial?

[3:49] Titus Nichols: Are they a risk of fleeing?

[3:52] Titus Nichols: Um, what's the likelihood of being convicted?

[3:55] Titus Nichols: Um, is there a risk that they're gonna commit new felonies?

[4:00] Titus Nichols: Are they gonna intimidate witnesses?

[4:02] Titus Nichols: All those factors we addressed.

[4:04] Titus Nichols: No, there's no risk of her intimidating witnesses because there are no other witnesses.

[4:09] Titus Nichols: There's no risk of her committing a new offense because the offense is disclosing a top-secret document.

[4:15] Titus Nichols: She is barred from going onto the base; she no longer has access to any super-secret documents.

[4:21] Titus Nichols: So there's no way she can disclose anything else.

[4:24] Titus Nichols: Plus, they've already collected her cell phones and computers, so she can't go back onto any electronic device and disclose something else.

[4:32] Titus Nichols: So legally, there was no basis to deny bond.

[4:37] Titus Nichols: However, as we learn at every turn in Reality's case, the law doesn't really apply when you've been charged with a crime against the government.

[4:46] Titus Nichols: Politically, there was no way Reality was gonna get bonded.

[4:49] Titus Nichols: But we still fought hard anyways.

[4:51] Titus Nichols: However, due to the Espionage Act, the defense would hit a roadblock at every turn.

[4:55] Titus Nichols: Since the Obama administration, there have been many more prosecutions under the Espionage Act.

[5:02] Titus Nichols: Now you're seeing more prosecutions of so-called leakers who disclose information.

[5:07] Titus Nichols: And what ties all these different people together is that the information they disclose does not result in anybody being killed, does not result in anybody being injured, does not result in some type of military operation being compromised.

[5:24] Titus Nichols: It embarrasses the government.

[5:25] Titus Nichols: And so, in response to these documents being disclosed that embarrass the government, you see these federal prosecutions.

[5:33] Titus Nichols: What makes the Espionage Act so difficult to defend versus, say, shooting somebody is that the Espionage Act automatically has a 10-year sentence.

[5:43] Titus Nichols: If you are found guilty, you are given 120 months.

[5:46] Titus Nichols: It does not matter your lack of history.

[5:48] Titus Nichols: It does not matter mitigating issues.

[5:51] Titus Nichols: Given how difficult it is to build a defense under these circumstances, most people don't stand a chance when being prosecuted under the Espionage Act, especially if you're someone like Reality without significant financial backing, access to high-profile government support, or formidable connections of any kind.

[6:10] Titus Nichols: Most defendants don't have the resources to fight the Department of Justice.

[6:14] Titus Nichols: And the federal government knows that.

[6:16] Titus Nichols: I'm pretty sure we dealt with the U.S. Attorney's Office in the Southern District of Georgia, the main Department of Justice out of DC, the National Security Agency, although you would see them in the courtroom, but they would never say who they are, but we knew it was NSA.

[6:30] Titus Nichols: You're dealing with all these different agencies, all the different knowledge and experience they have.

[6:36] Titus Nichols: They have the ability to bring together a whole slew of lawyers to write whatever brief they need for their motion.

[6:42] Titus Nichols: Whereas we on the defense, we're only operating off of what information the government gives us.

[6:48] Titus Nichols: Another issue when defending someone who is charged with the Espionage Act is that everything has to go through security clearance.

[6:54] Titus Nichols: So even talking about the case with your team can be challenging.

[6:57] Titus Nichols: Everything is at the TSSCI level.

[7:01] Titus Nichols: So I had to have my security clearance upgraded.

[7:03] Titus Nichols: But the problem is when you have that security clearance, you literally cannot say certain words.

[7:09] Titus Nichols: Like if I'm on the phone talking to co-counsel, we can't say Operation Rubber Ducky because that is a violation of the security clearance.

[7:19] Titus Nichols: Even though we know what Operation Rubber Ducky is, we know what it's referring to.

[7:23] Titus Nichols: Everybody who's looked at the daily news knows what Operation Rubber Ducky is.

[7:27] Titus Nichols: We can't say that phrase.

[7:29] Titus Nichols: For us to even look at any documents related to the case, we had to go into the skiff.

[7:35] Titus Nichols: That's what it's called.

[7:36] Titus Nichols: It's SCIF, secret compartmentalized information facility or something like that.

[7:40] Titus Nichols: The skiff.

[7:41] Titus Nichols: We have to be inside of a skiff in order to talk about Operation Rubber Ducky.

[7:48] Titus Nichols: Well, the problem with that, Augusta did not have a skiff.

[7:52] Titus Nichols: Augusta had to convert a literal filing closet into a skiff.

[7:59] Titus Nichols: We had to go into the filing closet in Augusta courthouse.

[8:03] Titus Nichols: So number one, if we want to do anything related to our case, we gotta go to the courthouse.

[8:08] Titus Nichols: So that right there is an issue because I should be able to represent my client without having to go in front of the government.

[8:14] Titus Nichols: Then our client is an hour away in Lincoln, Georgia.

[8:18] Titus Nichols: So if we want to go speak with her, we have to schedule the court to have her transported all the way to Augusta, go into that small closet and talk about Operation Rubber Ducky.

[8:30] Titus Nichols: Whereas the government doesn't have that disadvantage; their emails are secure, their telephones are secure, and they have a secured facility within their office.

[8:39] Titus Nichols: And so it's just that inherent disadvantage you have from the very beginning that any person charged with this has.

[8:46] Titus Nichols: Further, under the Espionage Act, the government was able to deny the legal team access to evidence.

[8:53] Titus Nichols: As a result, the defense team tried to prove that Reality shared information that was already public knowledge and therefore not in violation of national security.

[9:04] Titus Nichols: We tried to argue that, look, the contents of this document were already in the public sphere.

[9:11] Titus Nichols: So nothing new was disclosed.

[9:14] Titus Nichols: Well, we can't get that because it's in the government's possession.

[9:17] Titus Nichols: So you're trying to prove an element in your defense, but the government won't give you the documents that you need to prove your defense.

[9:28] Titus Nichols: And what makes the statute so bad is because everything's national security, you have to get permission to even ask for certain things.

[9:35] Titus Nichols: And the government has the illegal authority to tell you no, I'm not giving you that document that you asked for because you haven't sufficiently explained why you need it.

[9:57] Titus Nichols: Because this was a political prosecution.

[9:57] Titus Nichols: Really, the biggest sin that Reality committed was she embarrassed the government.

[10:03] Titus Nichols: That's all fine when you're talking about terrorists or people who don't look like regular Americans.

[10:07] Titus Nichols: Oh, yeah, absolutely. Throw them under the bus.

[10:09] Titus Nichols: Point the finger, you know.

[10:11] Titus Nichols: But when it comes to the government, no, don't do that.

[10:13] Titus Nichols: Because then if you embarrass the government, they will come down hard on you.

[10:17] Titus Nichols: And they will do that to send a message to other people.

[10:21] Titus Nichols: Don't do anything that embarrasses the government.

[10:24] Titus Nichols: If you're the government, the only way you can demonize the people who do it is by claiming national security.

[10:32] Titus Nichols: Because then people get all patriotic or they think, oh man, nuclear secrets, national security, woo woo woo woo woo.

[10:38] Titus Nichols: But then when you get into the details, and if you talk to the average person, you're like, and you explain to them, hey, this is what Operation Rubber Ducky says.

[10:46] Titus Nichols: Do you really feel like this made us less safe?

[10:49] Titus Nichols: The average person is probably gonna say no.

[10:51] Titus Nichols: But when you put on the entire performance of the DOJ and paint the person out as being they hate America, they want to burn down the White House.

[10:59] Titus Nichols: Well, now it's easy, especially in the Southern District of Georgia, to paint this person as a lunatic who they're a threat to the country.

[11:07] Titus Nichols: The government claimed Reality was a terrorist.

[11:09] Titus Nichols: They used this false characterization as their basis to deny Reality bail.

[11:15] Titus Nichols: This is not how the Espionage Act was intended to be used, Titus explains. You are not to consider whether you think someone is or is not a danger. And I even argued, I told that a lot of people, she's a five foot six blonde white girl. Who is she a danger to? She's not about to do anything or join al Qaeda or anything. But the court put in its ruling that because it believed she was a danger to society, they were denying bond. Well, we appealed and we said the statute clearly says that's not a consideration. The district court even agreed and said, well, you're right, the statute doesn't say that, but we don't think that the rule lower court's ruling was an error, so we're gonna support the denial of bond.

And so this is the kind of systemic brick walls you keep running into, where even when you point out something is wrong, the court still says, meh, not that big of a deal. We've appealed all the way up to the 11th Circuit Court of Appeals, short of the U.S. Supreme Court. Nothing changed. Despite multiple appeals, there was nothing Reality's legal defense team could do to get Reality released on bail. But essentially, the court took the position that Reality was a risk of flight, that she was going to leave the country, that there was a risk that she was going to disclose more documents, and there was a risk that she was working with the Taliban or Al Qaeda because they found notebooks in her home that were in Pashtun and other languages.

That was her ex, that was her occupation in the military, that she was a translator. The fact that they find Middle Eastern writing, they assume she's working with the terrorists. But if it was Mandarin, they wouldn't think that she was working with the Chinese communist government or whatever. But again, it's the Southern District of Georgia, it is what it is. And so bond was denied, and so she was kept in confinement in Lincoln County, Georgia, which is a very small rural county that's about an hour outside of Augusta. So that's where she was confined, and they were not equipped for holding a federal inmate for a long time.

[13:52] Brittany Winner: There is no room for nuance when the government wants to come after you and characterize you in a way. They kept her in a rural county jail for over a year without bail. That served the prosecutor's purpose because it broke her spirit. There were times when Reality and the other inmates were out of toilet paper for days. They were out of the bare simple necessities, you know, the humanity of it. Reality would have to call my mom, who would have to call the warden of the jail there and ask for the simplest things. But they did that. The government kept her there to break her spirit so that she would plea, so that she would be silenced and locked away, and that she couldn't gain any perspective.

That Reality was willing to take basically any plea deal that they put on the table because she needed to end the hell that she was in. If Reality hadn't pled out, things would have dragged on. She would have been still kept in that rural county jail as the trial proceeded, which would have taken a long time to even get to that point. And she knew that she needed to move on with her life. So transferring to federal prison at Carswell in Dallas Fort Worth would actually allow her to live somewhat of a normal life. They have programs there, she could do course spawn at college. This was all pre-COVID, obviously, but she just needed to get through this. And she knew that at that point she had kind of a learned helplessness in that the truth wasn't gonna come out about the fact that she is an American patriot and not a traitor. She had kind of given up as far as the government being honest about the portrayal of her.

[15:37] Titus Nichols: After being held in that county jail without bond for over a year, Reality and her legal team finally decided it would be better to accept a plea deal than to go to trial.

[15:48] Titus Nichols: Bobby Christine, U.S. attorney for the Southern District of Georgia, comments on the day Reality pleaded guilty.

[15:56] Bobby Christine: The sentence rendered today is the longest received by a defendant for an unauthorized disclosure of national defense information to the media. It appropriately satisfies the need for both punishment and deterrence in light of the nature and seriousness of the offense. She claimed to hate America. When asked, you don't really hate America, right? She responded, I mean, yeah, I do. It's literally the worst thing to happen on the planet. She was the quintessential example of an insider threat.

[16:37] Titus Nichols: Going to trial on this would have been different because the way the trial was going to be conducted is totally different than any other trial. What happens is that you still can't say Operation Rubber Ducky publicly. What happens is you give the jury a binder that has Operation Rubber Ducky documents in the binder, but you can't publicly talk about these documents. And so you're saying, you're not this time, I'm tendering to the jury. What's defense exhibit five? And the jury has to open up their binder to exhibit five. And I'm not allowed to publicly say, hey, exhibit five is such and such from Admiral So-and-So. So it really would have been this highly redacted public trial that just would have been very difficult and time consuming.

So in order to save time and so the prosecution can say, hey, look, we got our victory, they offered us 60 months. We had tried to get the government to go down to 48, 42, but the government even told us that the reason why they're offering 60 was because of the jurisdiction they're in. They felt very confident that if they went to trial in the Southern District of Georgia, they'd get a guilty verdict. So there was no need for them to hedge their bets.

[17:50] Titus Nichols: I can't really say that it changed my worldview. Even though I am a lawyer, I still am a black man in America. So I'm always very just very critical of the criminal justice system and how the court system works. So I'm always walking in with the cynical view of, oh, defendant's gonna get screwed over some way or fashion. It's just can I stop it or can I slow it down in some form or fashion? Here, it just blew my mind just how the government will use all of its inherent and systematic advantages against somebody without any regard for due process. Due process really just didn't exist because essentially here she was denied bond twice. You can go to any courthouse in this country, in whatever city, and you'll see people who are charged with violent crimes who are given a bond.

They might not be able to afford to pay it, but they're still given a bond. It's just the extent that the government went to paint her out as some type of fringed lunatic terrorist. You would think it would be you would think it was an SNL skit. And you're sitting there thinking, no, there's no way the court's gonna believe this. You have no evidence to back that up. You are literally going off of writings in her notebook that you haven't even translated yet. And that's what made it even more frustrating. So it's just to the extent that the government relied on such flimsy evidence to justify denying this girl bond. And as we've seen from January 6th, you see what fringe lunatics do when they get together in large groups. But they get misdemeanors while Reality gets five years in federal prison.

[19:33] Titus Nichols: I think she would have gotten 60 months. I mean, because even under the Obama administration, they still prosecuted people who disclosed information. So she still would have been prosecuted. But I don't think she would have gotten 60 months. And I honestly think that if she was prosecuted in the Northern District of Georgia, she at least would have gotten a bond. It might have been a high bond, but I think she would have at least gotten a bond. Despite all the roadblocks they hit along the way, I'm still glad that I had the opportunity to represent Reality. I enjoy being a lawyer. I'd enjoy fighting for people who can't fight for themselves. In this situation, she's not a terrorist. Like, we got terrorists, and we saw thousands of them on January 6th.

Those are terrorists. Reality ain't no terrorist. So I enjoyed representing her. I enjoy talking with her. I enjoy getting to know her. So it's unfortunate that I had to meet her in these circumstances, but I don't regret representing her for one minute.

[20:29] Dori Berinstein: In our next episode, we explore Reality's experience in prison, where she battled COVID, was sexually assaulted, and continued to be treated as America's number one terrorist. You can support Reality by signing her petition for clemency at standwithreality.org. Please join us for the next episode of This Is Reality. And for more information and tickets to all productions of Is This a Room, visit BPN.fm/ThisIsReality and make sure to check out all the podcasts on the Broadway Podcast Network.

[21:12] Dori Berinstein: We'd like to thank our very special guests, Titus Nichols, and Brittany Winner. This podcast is created, written, and produced by Dori Berinstein, Sally Horchow, Rebecca Aparicio, and the Broadway Podcast Network. Sound engineers are Alan Seales and Kimberly Garris. Podcast editor is Alan Seales. Executive producer is Liz Armstrong. Please join us for our next episode of This Is Reality by following and finding out more information on BPN.fm/ThisIsReality. And finally, special thanks to Bea Westby, Katie Rosen, Ayana Prescott, and the rest of the team at the Broadway Podcast Network.