As a coronavirus outbreak at Federal Medical Center Carswell spreads, the United States government maintains National Security Agency whistleblower Reality Winner did not show her confinement placed her “at a risk substantial to justify early release.”

Prosecutors additionally insist Winner confused a request for a reduction in her prison sentence with a request for home confinement and never started the “administrative procedure” that must be completed before going to a district court for relief.

But Winner’s attorney Joe Whitley calls this a “nonsensical theory” that her “request was not a request under the compassionate release statute.” The district court did not “embrace” this position, although it denied her appeal.

“The entire colloquy is emblematic of the government position regarding Reality’s compassionate release request and its scattershot approach to the COVID-19 pandemic at large,” Whitley declares. “In short, because [the Bureau of Prisons] was not prepared for this type of pandemic, a prisoner’s last and only resort is the district court.”

Billie Winner-Davis, her mother, told Shadowproof that her daughter feels she is “suffering through this hell in a black hole where nobody seems to know or care what’s happening to them.”

She believes denying her release was wrong and “could have saved her” from the suffering she currently must endure.

Winner pled guilty in 2018 to one count of violating the Espionage Act when she disclosed an NSA report to The Intercept. She believed the report contained evidence that Russian hackers targeted United States voter registration systems during the 2016 election.

She has served more than half of her 63-month sentence, and her attorneys urged a federal court to release her to home confinement to serve the remainder of her sentence.

But Judge Randal Hall sided with the Justice Department on April 24 and contended the “medical prison,” where Winner is incarcerated, is “presumably better equipped than most to deal with any onset of COVID-19 in its inmates.”

Hall refused to grant Winner a hearing to present specific evidence on the risks posed to her health by the pandemic.

According to Tarrant County Public Health Director Vinny Taneja, Carswell is currently the site of a facility outbreak. “Last week 51 inmates and two staff members tested positive.”

“In the last few days the BOP has released new information confirming increases in active, positive COVID-19 cases at FMC Carswell, first from zero to 28 cases, and then from 28 to 45, literally overnight,” Whitley notes in a response to the government that was filed on July 6 [PDF].

Whitley adds, “The information just released confirms the exigent circumstances Reality faces at FMC Carswell right now and why this court should swiftly grant her relief.”

The government, led by U.S. Attorney Bobby Christine, argues [PDF] the medical records that Winner provided to the district court did not contain information that “detailed how COVID-19 would impact these conditions or how those conditions placed Winner at greater risk or COVID-19. And none were particularly recent, having been prepared before her original sentencing.”

Winner shared a psychological evaluation from July 1, 2018, and therapy session records from between March 5, 2014, and January 12, 2015.

Prosecutors note the psychological evaluation “reflected diagnostic impressions of ‘bulimia nervosa,’ ‘obsessive compulsive personality disorder,’ and ‘dysthymic disorder.'” Her therapy session records related to Winner’s bulimia.

Yet, in a previous submission to the appeals court, Winner’s legal team suggested they could not introduce more recent medical records because they were in the “possession, custody, and control of the government.”

If the district court had agreed to hold an evidentiary hearing, the court “could have heard from stakeholders at BOP and FMC Carswell about the BOP response generally and specifically at FMC Carswell.” The court also would have been able to review “critical evidence” related to Winner’s present medical condition. 

As Winner’s defense recalls, the government initially claimed that neither the BOP nor Warden Michael Carr received her request for compassionate release (something Winner predicted).

“In reply in the district court, Reality included a declaration under penalty of perjury from her Texas-based counsel, confirming the substance and form of the request and all relevant details,” Whitley outlines.

“Later, only after this appeal was filed, the government amended its position to state that her request was received but the government chose to treat it under a different statute, despite the fact that Reality cited the specific compassionate release statute in both requests she submitted and in every filing submitted to the district court.” 

The government played this game even as representatives were in discussions with the warden and BOP officials, as her motion proceeded in court.

That leads Winner’s legal team to believe the “government’s absurd position” bolsters her arguments made to the district court.

Prosecutors are upset that Winner supposedly circumvented an administrative procedure during a pandemic in order to expedite her request for release. Their conduct proves “exhaustion is futile.”

“The administrative process was incapable of granting adequate relief and agency review would subject Reality to undue prejudice and harm in the midst of a global pandemic,” Winner’s legal team concluded.

“What people need to understand is even if she is saved from the virus, she is still being tortured in this double lockdown situation that they have them in,” Winner-Davis stated.

“They have been deprived of all programs—recreation, fresh air and sunlight, and nutritional food. How long can the government keep them in this environment and under these situations and call it protecting them?”

With the outbreak, we now know “they were unable to protect them,” she added.

“In April,” according to the Fort Worth Star-Telegram, “Carswell inmates talked to the Star-Telegram about their fears of the virus spreading in the prison.” (Winner’s mother Billie Winner-Davis spoke with the newspaper.)

Several inmates requested in a letter to Carr that all elderly and sick nonviolent offenders be released to home confinement. They said a “single coronavirus could have the effect of lighting a match on a book of matches.”

Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."