The act also ignores the rights of a prisoner. Why should a prisoner be taken from her cell to perform a massage? The removal could be viewed as cruel and unusual punishment as stated in the 8th Amendment. The motion does not even address the rights and wishes of the prisoner. Did she protest? Were any promises made to her? Was she threatened? What conversation transpired between DOC officials and the prisoner? An evidentiary hearing is needed to determine these facts.
Upon information and belief there is no evidence that any conversations concerning the criminal charges pending against Defendant Cheng were had by the Governor, Mrs. Fitial (the Governor's wife was present during the massage), and any of the others present, or any other persons. Nor is there any evidence of any other type of action(s) which could conceivably have "prejudice(d)" the Federal Government's case against Defendant Cheng.
It is entirely a federal matter and even if Defendant Cheng had been promised the moon by any persons or persons involved in this incident, it would have been an illusionary promise and incapable of causing "prejudice" to the case against Defendant Cheng.
It appears apparent that the Government is investigating this incident, not necessarily as a housekeeping measure over the care and feeding of federal detainees, but also with an eye toward criminal prosecution, that raises the question of the propriety of involving the court in an criminal investigation.The motion also states:
The secrecy also is an important protection for those under investigation by the grand jury. It prevents persons under investigation from being the objects of public derision and being pilloried in the media, as is currently being done to Governor Fitial in this case. (See Exhibit 1, Newspaper articles. Sadly, it is hard to imagine how anyone connected to the incident could avoid derision and stigma of the public after this media assault.