Update, Dec. 21 — Not Guilty

All six defendants in the first round of #J20 trials were found not guilty this afternoon in Washington, D.C. After two and a half days of deliberations, jurors in the D.C. Superior courtroom refused to convict on all 42 counts federal prosecutors brought against the defendants, including conspiracy to riot.

The charges stemmed from Inauguration Day protests in January when a minority of demonstrators broke windows and burned a limousine near the National Mall. Over 200 people were swept up in mass arrests. Of those apprehended, 194 opted to stand trial rather than accept a plea deal, risking decades in prison.

The government does not possess evidence the protest attendees whom they have charged were involved in the destruction. Rather, lawyers with the U.S. Attorney’s Office (USAO) in Washington, D.C., led by Assistant U.S. Attorney Jennifer Kerkhoff, claimed the dark clothing defendants wore on Inauguration Day while in the vicinity of the violence was proof enough of a wider conspiracy to incite a riot.

“I’d have to believe that in some part of [Kerkhoff’s] soul she had to know we would be acquitted,” said Oliver Harris, one of the six defendants who walked out of D.C. Superior Court free on Thursday.

A statement the local USAO issued this afternoon indicates no such soul-searching is underway. Apparently undeterred by today’s verdict, it plans to proceed with prosecutions for the remaining 188 defendants.

The U.S. Attorney’s Office for the District of Columbia believes that the evidence shows that a riot occurred on January 20, 2017, during which numerous public and private properties were damaged or destroyed. This destruction impacted many who live and work in the District of Columbia and created a danger for all who were nearby. The criminal justice process ensures that every defendant is judged based on his or her personal conduct and intent. We appreciate the jury’s close examination of the individual conduct and intent of each defendant during this trial and respect its verdict. In the remaining pending cases, we look forward to the same rigorous review for each defendant.

We will continue to provide further information as we receive it. (Last updated, 8:08 p.m.)

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Opening Arguments

When the prosecution presented their first piece of evidence on Monday, Nov. 20, Assistant U.S. Attorney Jennifer Kerkhoff was confronted with the name Logan Circle upside down. The prosecution had attempted to convert a map of the route protesters, journalists and riot police took from the square to the northwest corner of 12th and L Streets on Inauguration Day into three-dimensional animated video. As it played, Kerkhoff stood before the jurors and the crowd assembled elbow-to-elbow in the gallery — including her boss in the front row, chief of the Felony Major Crimes section for the U.S. Attorney’s office in Washington, D.C. John Gidez — and did what any good performer does in a tough spot: persisted.

The snafu was one of multiple brief moments of levity in the day, throughout which opposing attorneys attempted to lighten the mood and endear themselves to jurors. Part of the prosecution’s argument is that the dark clothing attendees wore at the #DisruptJ20 protest ties them to a conspiracy to riot. Kerkhoff joked that “black can be a wonderful color, quite slimming in fact.” Defense attorney Carrie Weletz, representing Jennifer Armento, one of 6 defendants on trial, told the court that in the past she had felt like smashing a parking meter with a brick.

In her opening arguments, Kerkhoff began with the story of the owner of the Atrium Café, describing the broken window her business suffered when a minority of Inauguration Day protesters took their rage out on the sandwich shop. “She bore the stress of that, she had to pay for it,” Kerkhoff said of the café owner. She then turned to the story of Villa Royale, whose burning limousine became a symbol of the chaos that engulfed Washington, D.C. on Inauguration Day and described the fear a Downtown Starbucks employee felt when the coffee shop’s “two story tall wall of glass” came down. But the scope of victimhood is much wider than these individuals, Kerkhoff argued. It includes “all people who went to work, who work here in the District [of Columbia] and all people who were impacted by the riot.”

Her attempts to pull at jurors’ heart strings often fell flat, however, as if a nagging doubt lingered in Kerkhoff’s mind that the charges, which could result in decades behind bars for the 6 defendants, don’t match the severity of the crime, let alone the time and resources her office has devoted to the case. Nearly all federal prosecutions result in plea deals and perhaps Kerkhoff expected the 230 people arrested at the protest to do the same. Instead, 194 defendants have opted to stand trial, forcing a series of prosecutions expected to last at least another year.

Kerkhoff, careful to avoid the term protesters, said the defendants, “made a choice to participate in a riot. Each of them made that choice and each of them played a role.”  Employing the phrase “black bloc” she said the defendants were part of a “massive group,” a destructive “sea of black masks.”

Having attempted to pique the jury’s emotions, Kerkoff’s efforts to showcase her professionalism and the strength of her case led to confusion. As she described the path the protesters took, her 3D animated video kept displaying the names of streets and other locations upside down.

When her narrative arrived at the limousine, she played video of a single protester tossing a flare into the vehicle’s smashed out windows. “Then it exploded,” she said as the footage quickly shifted to video of the Starbucks and a Bank of America branch being attacked.

“As the nation’s capital we know protest,” Kerkhoff concluded. “We know dissent. [It] can be powerful.  [It] can be beautiful. [It] can affect change. This wasn’t a protest. This is about the choice to commit violence and destruction.” The DisruptJ20 demonstrators moved as a group and the defendants chose to “move with it,” Kerkoff said, characterizing video produced by livestreamers in attendance as “PR for the riot.”

It was 11:55 A.M. by the time Kerkhoff concluded her hour-long remarks and the jurors were obviously restless, but rather than adjourning for lunch and allowing the jury to regain its focus, Judge Lynn Leibovitz decided to proceed.

Unlike Kerkhoff’s opening, the defenses’ remarks were quick, concise and to the point.

“This case is about our freedom to associate with one another,” said defense attorney Steven McCool, appearing on behalf of Oliver Harris. The Metropolitan Police Department intentionally violated its standard operating procedure in order to regain control of the crowd. “He wasn’t told to disperse,” McCool said pointing to his client. “And just as you can’t condemn an entire police department because of the behavior of a few, you can’t condemn an entire protest because of the actions of a few.”

Later in the day, defense attorney Tammy Jacques, appearing for Christina Simmons emphasized that “Not one video will be shown that will show Ms. Simmons engaging in violence.”

Brett Cohen, representing freelance photographer Alexei Wood, whose livestream video of the demonstration was admitted as evidence earlier in the day despite attempts to block it  by defense attorneys who questioned its relevance, said his client’s case “involves the right to a free press.” Comments made by Wood’s via livestream that the jury is expected to hear may be disagreeable but are not illegal, he said.

Defense attorney Sarah Kropf, representing Britt Lawson, told her to stand up, saying she is “proud” of her client, who attended the protest as volunteer medic and works as a nurse back in Pittsburgh.

Testimony

The first witness for the prosecution was Andrew Lapp, a 47-year-old general manager at an Au Bon Pain in Washington’s Capitol district. Traveling on his way to work through Logan Circle on Inauguration Day, he said he saw a “big crowd of people in the circle” whom he described as having an “outlaw” appearance. He shot video of the crowd through the driver’s side window of his car as it moved through the roundabout. Later, while at work, he “heard a really loud bang” at about 9:15 A.M, “a rock bouncing off” one of the bakery’s windows.  Stepping outside into the crowd, he said he observed Alexi Wood filming a protester smashing a parking meter.

The prosecution’s second witness and the last of the day was Officer Ashley Anderson of Metropolitan Police Department.  Officer Anderson, on temporary assignment with the department’s Civil Disturbance Unit was traversing Downtown in a group of eight officers, each riding a mountain bike, when they were commanded to travel to I Street where she said she noticed “a big group of individuals all dressed the same… throwing things.” There were “so little of us” and “we did not feel prepared for the situation,” she said, recounting how a brick bounced off her bicycle.

Shortly after Officer Anderson finished describing the incident, Judge Leibovitz halted proceedings for the day at 4:35 P.M.

Additional Notes on Week 1: 

Supporters of DisruptJ20 defendants outline the stakes in the case

“Today is going to be a really big test as to whether or not the D.C. Superior Court is going to allow the prosecution to try and railroad protesters on some pretty outrageous legal theories,” said Sam Menefee-Libey, a member of D.C. Legal Posse, an activist group providing courtroom support to defendants in the DisruptJ20 trials, speaking at a press conference on Weds, Nov. 15. A number of the defendants in the first round of prosecutions, their supporters and journalists shivered against the wind in front of the court building. Members of the Metropolitan Police Department kept watch over the situation from several squad cars and motorcycles parked in the sun across the street.

“It’s going to be a big test for our movements,” Menefee-Libey continued, “as far as whether or not we can show up for folks when they are facing the strongest sort of state repression.”

Matthew Mihalich, chairman of the National Lawyers Guild’s (NLG’s) Washington chapter, said the prosecution’s theory, devised by federal attorney Jennifer Kerkhoff, is like Bigfoot faking the moon landing: Her conspiracy theory is that your public political speech at a rally or something like that or on Facebook … is something that can be used to [prove] the fact that you wanted to break a window somewhere along with 199 people you may not have even known,” Mihalich said. “The fact that you didn’t go home and cancel the march when a trash can fell over is also evidence of your part in this vast left-wing conspiracy to tip the trash can over. If you have the experience and wherewithal to arrange for jail support — something we here at the NLG do all the time — that’s supposed to be part of the conspiracy too. Now you’re aiding and abetting.”

Mihalich concluded: “We know that it was an indiscriminate mass arrest because they have already admitted it. They arrested journalists. They have arrested others for whom they have dismissed charges. They were simply arresting people there, not arresting people on the basis of individualized probable cause.”

Elizabeth Lagesse, set to stand trial in July of 2017 in connection with DisruptJ20 said that whether or not the prosecution’s case against her and the other 193 defendants holds up in court, “punishment has already been delivered.” “It’s the stress,” she said, referring to the six journalists and activists whose trial has just begun, “the disruption in their lives for being part of this process. And that is doing a lot of the job of suppressing speech, of suppressing dissent, of contaminating these people.”

Ex parte

When proceedings began on Nov. 15, the prosecution’s Jennifer Kerkhoff and her trial aide were joined by Assistant U.S. Attorney John Gidez, Chief of Felony Major Crimes for the U.S. Attorney’s Washington office, who sought to address the court in private. Citing a “recent incident,” and raising concerns jurors and witnesses will be intimidated, Gidez stated he would like to file a motion ex parte with Judge Lynn Leibovitz, meaning that the defendants would not hear what he was arguing to the court. Judge Leibovitz refused, stating that if Gidez has evidence a crime has been committed he should file charges before bringing it to the attention of her court.

Jury selection

From security guards and hourly workers to White House employees and an attorney for the FBI; the jury pool at the D.C. Superior Courthouse is unique in terms of its diversity of socioeconomic status.  

Judge Lynn Leibovitz presented the pool of potential jurors with a questionnaire last week consisting of questions that could disclose potential conflicts and disqualify them. One of the first questions asked what sort of media reports regarding the trial the would-be jurors had seen. More than a third of the potential jurists reported that they saw video from inauguration day of a limousine engulfed in flames. Several times potential jurors who appeared to be sympathetic to the defendants disqualified themselves by expressing their beliefs about the actions of the police.

One potential juror characterized the protests as a riot. The defense objected but Judge Leibovitz overruled and qualified the juror, after she stated she could proceed without bias and will only consider evidence presented during the trial. Later, another prospective juror admitted she thinks the mass arrests were unconstitutional. When questioned further, the prospective juror stated that she can set aside this bias and only consider the evidence presented during trial. Judge Leibovitz struck the prospective juror with cause.

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Jury selection concluded this week in the trial of six people facing decades behind bars in connection with Inauguration Day protests in Washington, D.C. earlier this year. More than 200 people were initially swept up in mass arrests during the Jan. 20 demonstrations and 194 defendants remain, charged with inciting a riot, rioting, property destruction and conspiracy to riot. The government is trying the defendants in groups of eight or less, with the majority of the trials not scheduled to begin until next year.

Among those set to stand before a jury in this initial round of prosecutions are Miel Macchio and Britt Lawson, both of whom volunteered as medics at the protest. The defendants also include Oliver Harris, Christina Simmons, Jennifer Armento and photojournalist Alexei Wood. Another defendant, Jayram Toraty, was granted a continuance until September 2018, after the government introduced over 900 police videos from Inauguration Day into evidence at the start of the week, which could impact his defense. The government claims the videos were mislabeled and thus not previously provided to the defense.

The six remaining defendants are facing six felony charges and two misdemeanors, including five counts of felony property destruction, one felony count of inciting a riot, a misdemeanor charge of rioting and a misdemeanor charge of conspiracy.

The prosecution, led by Jennifer Kerkhoff, Deputy Chief of Felony Major Crimes for the U.S. Attorney’s Office in Washington, has justified the severe charges by arguing in court filings that when protest organizers created a website for the Inauguration Day demonstration, disruptj20.org, they initiated a conspiracy. This conspiracy, according to the prosecution, expanded to violence when a minority of protesters, dressed in black and chanting anti-capitalist slogans, smashed up a limousine and the windows of a bank building. Prosecutors assert that anyone who wore black to the demonstration, marched with the crowd or took part in chants engaged in the conspiracy.

Prosecutors assert that anyone who wore black to the demonstration, marched with the crowd or took part in chants engaged in a conspiracy to riot.

The majority of DisruptJ20 participants were nonviolent and the prosecution does not allege that any of the protesters in this first trial block committed violent acts. Likewise, D.C.’s Metropolitan Police Department has acknowledged that most of the violent actors escaped their apprehension.  

Activists and civil rights advocates have raised concerns that if the defendants are convicted of conspiracy it will set a precedent that will be used to systematically dismantle peaceful social justice movements. After public outcry earlier this year, the Justice Department dropped an attempt to subpoena the records of people who visited the DisruptJ20 site and obtain the I.P. addresses of potentially millions of internet users.

Additionally, critics warn the prosecution of Alexei Wood and another journalist whose trial is set to begin, Aaron Cantu, represent the further undermining of the role of journalism as a watchdog against government overreach. President Trump, the target of the DisruptJ20 demonstrations, has repeatedly sought to undermine the credibility of the unsympathetic press.

Judge Lynn Leibovitz, whom NBC 4 Washington has called, “D.C.’s Toughest Judge,” is presiding over the trial. Each of the defendants has retained their own attorney, with several having multiple attorneys. The prosecution has signaled it intends to call around 40 witnesses and to screen around 30 videos as evidence. Prospective jurors were informed their services will be required for at least four weeks.

Opening arguments will likely occur on Monday and Tuesday of next week. Check back here for regular updates in the coming days and weeks.

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Photo: Protesters on Inauguration Day. Credit: Reana Kovalcik.