#DropJ20 Podcast Update #5: The Path Ahead in 2018

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After 6 weeks of sitting in court, side by side with our comrades, the jury finally reached a verdict in the first case of J20 protesters: a full acquittal on all 42 counts! Words cannot express the sheer elation that reverberated around the courthouse and around the world, as anyone paying close attention to this case had held their breath during the 4-day jury deliberation; but we’ll borrow some from now-acquitted defendant Alexei Wood: we’re utterly stoked!

After months of legal preparations, anxious nights, hearings, and a ludicrously long trial, we sat and we waited. Days that were once occupied with note taking and planning then shifted to days of waiting around, or occasionally attending hearings for others arrested in DC, like the 8 DREAMers who were recently detained and risked their own deportation to demand a clean DREAM act. We waited with our comrades who are risking so many years of their lives to fight repression and stand in solidarity with all the other defendants in this case. Before we take you on the grand tour of closing arguments we’ll give you an update on the next trial block.

The second trial was originally scheduled for December 11th, but as the first dragged on much longer than expected, the second was pushed back bit by bit and is now simply scheduled for a status hearing on January 19th, 2018, with a new trial date yet to be set.

Unlike their 182 remaining codefendants, the seven defendants of the second trial face three misdemeanors each: conspiracy to riot, engaging in a riot, and one count of minor property damage.

In November, and with no explanation, Assistant US Attorney Jennifer Kerkhoff reduced the charges against only these defendants from six felonies and two misdemeanors to these three misdemeanors. Now that they only face misdemeanors, they won’t be allowed a jury and the judge will decide this case on their own. It’s important to remember the basic framework of the prosecution is the same as the felony trial: prosecuting a protest as conspiracy as a direct act of state repression. Stay tuned for future updates for this second trial block!

Before we move into the full reportback on closing arguments from the first trial, we want to bring things back to what’s really going on in the J20 conspiracy cases. Everything that has happened between the inauguration and today is a punishment in and of itself: from the brutality inflicted during the march and the kettle, to the arrest processing, to the long and drawn-out court proceedings and enormous travel expenses, to the six-week trial, and, now, to the stress and anxiety that comes with waiting around for decisions from a jury comprised of people who likely have little knowledge of social movements, people who are instructed by a court system that clearly favors the prosecution.

Nevermind the fact that this entire carceral system exists purely to punish and control populations and those who would seek to resist. One frightening aspect of this situation is knowing that this case is really just a fraction of the violence that the State inflicts on marginalized communities every single day. The court and prison system exist primarily uphold capitalism and white supremacy.

In the face of a power structure that holds a monopoly on violence, we know that our only real weapons are our solidarity, our love for ourselves and each other, and our commitment to living a life that sees a horizon beyond this world of domination. To that end, we hold our friends close as they face the seemingly unending resources and power of the US attorney’s office and DC federal court system. Although these agents of the state may seem all-powerful, we know there are cracks and holes in their power. We see those cracks and push through them like water, hoping to create enough pressure to burst them wide open. As a defendant wrote in an anonymous zine documenting their experience upon release from jail the following day:

“Outside the courthouse awaited something beautiful. an orchestra of activists embraced us, food not bombs fed us, we were comforted by legal and medical volunteers” 

And they continue:

“Through benefit shows, late night venting, words of encouragement, and songs of change, we’re looking forward with the knowledge and confidence that we are not alone in this struggle”

To summarize the last days of trial, closing arguments from the prosecution and all the defense attorneys concluded on Friday, December 15th. Assistant US Attorney Rizwan Quershi began the closing arguments on behalf of the government by reiterating the prosecution’s assertion that while none of the current defendants on trial committed any individual criminal act, their presence at the march amounted to “aiding and abetting” an alleged riot, or as he calls it, the ominous “sea of black”.

While this is concerning in and of itself, the government doubled down on it’s criminalization of normal protest behavior at several points. One main argument put forth by the government is that defendants should have immediately left the march when it became evident that property damage occured, despite there being no law to support this assertion.

According to the prosecutors, the only thing anyone could have done in the less-than-30 minutes between the first broken window and the kettle t o prevent themselves from being guilty of being willfully engaged in the alleged riot would have been to leave, immediately. In this way the government makes the dangerous claim that proximity to a crime is enough to be considered guilt by association, and once defendants became aware of destruction they should have distanced themselves from the situation, although it’s unclear if or when defendants were aware of property damage occurring. Ranck, the plainclothes cop that was embedded in the march testified that often times he was not able to see property damage occurring, despite actively looking for it, yet somehow defendants, many of whom are on the shorter side, were expected to be completely aware of the the entire march. Qureshi summed this up in a disgustingly ableist conclusion, pausing before saying, “Not to be crass, but none of the defendants are blind or deaf.” We could go on for hours about all the ways in which that statement is disturbing, but we assume that you get it.

The government also attempted to argue that this march, where people are chanting political statements and carrying banners and signs, is not a march but a riot. In order to prove this point, the government showed footage of a different march that occurred that day which they deemed acceptable. Similarly they compared the march to other marches that happened during the same time frame but did not result in a mass arrest, as if the polices’ targeting of political groups and their almost immediately expressed desire to stop this march did not play into the actions the police took that day.

Beyond these concerning attempts to define what may be considered a protest, in their closing statement the prosecution took the opportunity to repeatedly paint everyday protest activites as suspicious, criminal acts in furtherance of the conspiracy. It became evident that advertising and attending a public march constitutes a conspiracy if you’re of a political pursuasion they don’t like. For all the times the government said this case isn’t about clothes they certainly seemed fixated on them. Repeatedly referring to the march as a “sea of black” the prosecution claimed that wearing black was being in “uniform” as if the protesters were some highly trained paramilitary group. If you coordinate to any extent your clothing, or just happen to wear the similar things, the government considered that “getting the memo,” knowing the “plan” and “following instructions.”

Funny how this argument isn’t used against active alt-right paramilitary groups or white supremacist groups. Everyone of the neo-Nazi that marched in Charlottesville looked like they went on a group shopping trip to GAP, but their message of hate serves to uphold the foundation of the power structure in the United States. Wonder when we’ll see the arrest of the black clad, often masked, uniformed cops who claimed they were ‘just following orders’ as they viciously brutalized people that day. It was clear, however, from before the march left Logan Circle, that this was the targeting of this march was intentional.

The government’s persistent preoccupation with our fashion choices doesn’t stop there; apparently incapable of understanding how winter works, assistant US attourneyQureshi claimed that carrying extra layers or taking layers of clothing on or off is indicative of guilt. Ignoring the influence of the frigid winter weather and rain that protesters were forced to stand in for hours upon hours, Qureshi pushed the idea that changing clothing is criminal. “Why did they change clothes?” he asked, “I thought they were here for a protest.”He then continued: “I don’t know if you all have ever been to a protest, but you try and carry as little as possible.” While it’s doubtful that Qureshi has ever engaged in social struggle – except perhaps struggling to make awkward jokes in the court room – it’s still remarkable that someone in his position doesn’t understand that after being brutally assaulted and denied medical attention, some people may want to change clothes to stop exposing themselves and others to pepperspray, which sticks to clothing.

Beyond their obsession with defining what is proper protest wear, the prosecution desperately attempted to paint this protest as something more insidious, vilifying every aspect of typical protest behavior, including common protective measures used by protesters. This culminated in Qureshi posing a series of questions that all but confirmed that he has literally never been to a protest:

• “If this is first amendment activity, why are you running?”
• “Why are you going to a protest and receiving jail support forms?”
• “If this was a protest, why did you bring bandanas soaked in vinegar?”

Ironically, all of these questions were answered repeatedly by the footage shown in trial of the violent, aggressive, and inexcusable police behavior. Perhaps these things – running, jail support forms, and protective gear – wouldn’t be necessary if the police were able to approach protests with any degree of moderation of force or controlled behavior, but there’s clearly no incentive to do so when aggressive and bigoted behavior is encouraged in the police departments (see Peter Newsham and Commander Deville’s statements for more details). After protestors were attacked by police, video shows people in the march screaming things like “Go! Go! Go!”, “Stay together!”, and “Keep tight!”, communicating in an attempt to protect each other from police violence. Yet, trying to give some credit to their conspiracy charge, these reactions were treated by the government as some criminal act, claiming that these are directives that showed there was coordination within the march. “If this was a protest,” Qureshi asked, “why are you following commands?”

Qureshi then proceeded to apply the government’s conspiracy theory to each defendant in the case, making a snide comment about how, since Detective Pemberton was not allowed to identify people in the video as the trial defendants, Qureshi would do it for him. He was almost immediately reprimanded by the judge. “Sir,” the judge said, “are you actually commenting to the jury on what I’ve ruled the detective couldn’t say?”

After a serious scolding, he continued to attack each defendant, repeatedly referring to them as violent outside agitators that had no place protesting in the nation’s capital. Qureshi stated that defendant Alexei Wood, a livestream journalist, wasn’t actually there as a journalist because he knew certain protest terms like “kettle” and “black bloc,” effectively making a basic knowledge of protest language suspect of incitement and conspiracy.

As a side note, we would like to issue a warning to all journalists: Don’t cover anything you actually might have a basic understanding of, as you might be charged with conspiracy. Given all the footage of police brutality recorded that day, it almost seems as if the government wants to scare off those who might capture their misdeeds on camera, so they can act with full impunity.

The prosecution’s villification of street medics is an especially poignant example of the way the government is using this case to criminalize dissent, as well as our ability to care for and protect each other. Despite the violence leftist communities have faced this year in places like Seattle, Chicago, and Charlottesville – and the fact that street medics were critical first responders in all those places – carrying basic first aid is somehow not considered reasonable protest equipment. Qureshi claimed that medics were “prepared for war,” that the role of medics in this march was solely to provide aid to people and stitch up whoever was injured so that they could continue to destroy precious property, “provoke the police,” and engage in more criminal activity. These claims erase how critical street medics have been in social movements of all sorts, ignore the many dangers faced by protesters, and push the idea that people who engage in direct action are undeserving of medical care.”What do you need a medic with gauze for?” Qureshi asked obtusely “I thought this was a protest.” As a side note, the Red Cross recommends that any standard, basic first-aid kit carries gauze.

While the absurdity of these charges is almost laughable, they hide a serious threat to the ability of our communities to protect themselves and each other. Given the increasing violence against protesters and leftist in particular, what does it mean for us when it is considered criminal to care for people who are hurting or in need of medical attention simply because those people were participating in a political demonstration? Of all the dangerous arguments raised by the prosecution, this one is a direct attack on the worth of our lives and our ability to survive.

Throughout Qureshi’s closing argument, he tried to garner sympathy by talking about how helpless and unprepared the police were, even though there were 100 riot police at Logan Circle when the march left and even though it was a giant National Security Special Event for the inauguration of the most controversial president in recent memory. Somehow, we’re expected to believe that the police were caught off guard, even though their own operating procedures contain plentiful and highly specific protocols for how to deal with all kinds of protests. The police commander who helped write those protocols was on the scene before the march even started, and claimed to have prior knowledge that this group would engage in property destruction, but chalked that up to the political leanings of the group.

Thankfully, Qureshi eventually ran out of absurd points and the defense got a turn to defend themselves. Unsuprisingly the lawyers, who are acting in the best interest of their individual clients and have little experience with political cases, leaned heavily upon the lack of physical evidence to indicate that their clients engaged in any property damage. But beyond this less than desireable argument, several much better points were made by lawyers.

Each lawyer took time to remind the jurors that they had to find each client guilty beyond a reasonable doubt in order to convict and that the burder of proof is upon the government not the defense. Many of them also spoke on the first amendment and how political speech and actions are supposed to be protected more so than general public activity, making the governments burden of proof even larger. The lawyers directly called the government out for prosecuting these cases to protect their own skin and justify their actions that day. One lawyer went so far as to say the government “edited out the first amendment” in a coniving attempt to misrepresent the majority of the march. They also refutted the governments attempts to define what protest is acceptable and what isn’t; one lawyer simply stated that “not every protest will look how the Department of Justice wants it to look like.”

The defense also focused heavily upon the police misconduct that day. The defense claimed that by violating their own policies and instead encircling and indiscriminately pepper spraying and hitting protesters, the cops failed to do the job they claimed they were there to do, which was facilitate the march, and instead themselves created the chaos that day. The government also seemed to expect the impossible from marchers; telling them that they must obey the police orders to move as the cops herded the march into the kettle with batons, pepper spray, and stinger grenades, in order to leave the march. Even the plainclothes cop in the march, who attempted to leave because he was scared of the police violence, was almost shoved back into the march by riot cops until he identified himself as MPD.

The defense largely focused on Deville since he was effectually the one in charge that day. Reminding the jury of how Deville considered enormous restraint to mean that “they [protesters] weren’t bludgeoned,” by cops and his general lack of concern with the protesters safety, defense attorneys claimed that Deville would “say anything to fit the government’s narrative,” in a desperate attempt to protect themselves from future lawsuits. They also noted how quickly Deville had moved to crush the march, with the defense claiming that “rather than follow these simple rules, Deville had the mindset to trap and arrest everyone he could.”

The defense described the case as overtly political and repeatedly claimed that Deville was “bent on arresting anarchist, people who believe differently than he does.” In order to further support this claim they discussed Edelmeyer’s contract which directed him to infiltrate and report back on the “anti-establishment community” as well as Pemberton’s disgusting attacks on the very real concerns held by Black Lives Matter and how he protected the Project Veritas infiltrator’s identity, while ignoring their well know reputation for editing footage to discredit leftist groups. As a final point in this line of argumentation, one defense attorney pointed out that the people prosecuting this case answer to Trump and therefore have an incentive to silence those who dissent against him.

The veracity and relevance of the governments evidence was also called into question. The biased sources of evidence and unconvincing identification of defendants in government exhibits was repeated often throughout closing. Additionally, the government was accused of selectively editing and playing footage from that day in order to intentionally mischaracterize the march, a theme that was argued repeatedly by defense attorneys. One even went so far as to say that “commander deville will say anything in the government’s interest even if the truth is staring him right in the face.” Much of the evidence the government used was from high vantage points or aerial survelliance, which are viewpoints physically impossibile for protesters on the ground to hold–yet this footage was used to claim that protesters shoulnd have know about the property destruction and leave. The defense also gestured to the general lack of evidence the government has in the entire case, despite an intensive investigation by the government that utilized online research, social media monitoring, infiltrating planning meetings, and multiple plainclothes cops embedded in the march.

Beyond highlighting the gross police misconduct that occured, the defense also took time to defend their clients and, in some cases, their individual roles in the march. Defense attorneys were quick to point out that no laws in DC say that people have to leave a march or space when they witness a crime being committed. They also claimed it was hypocritical for the government to edit footage to protect identities of cops and Alt-Right informants, yet criminalize the rights of protesters to protect their anonymity in order to avoid undue surveillance and targeting by both the police and the Alt-Right.

In defense of journalist Alexei Wood, the defense asked what it meant for protest and freedom of information if newsworthy events can’t be covered by journalists for fear of prosecution. He also noted that Alexei’s press pass with a fake name may have just been an attempt to protect his identity and that press passes are not what make a journalist a journalist since the introduction of technology has radically changed the world of journalism, and regardless, MPD doesn’t issue press passes. The government also showed what they considered a ‘good live stream’ in which the filmer provides no commmentary on the events at all, which Alexei’s lawyer claimed was a violation of the first amendment. The government also tried to claim that Alexei was violent and malicious towards others, depite his own live stream showing him yelling at a man who appears to push a protester and telling him to stop hurting people and leave the area.

Britt Lawson’s lawyer also defended their clients role in the march as a street medic as something that is both a normal and necessary aspect of protest, and that theyhave been ever since the Civil Rights Movement. In the first aid kit, there were sugar tablets for diabetics, tampons, bandaids, cough drops, and granola bars; none of these things are indicative of a preparedness for war or an intent to aid and abeitt others as the prosecution claimed. She also highlighted how medics were able to get someone who was having an asthma attack out of the kettle after the police intially refused them help.

The defense wrapped up by discussing how convictions in this case would hamper our ability to effect meaningful change. After acknowledging to the jury that it may have been hard for DC residents to hear about the property destruction that day, the defense attorney said, “What would be hardest for us to hear would be silence, because if these folks are found guilty, we may not hear protests anymore. We may not hear dissent when it’s more important than anything,” before ironically being silenced by a sustained objection by Kerkhoff. After which she continued “silence is dangerous,” before again getting shut down by the judge who, after a bench conference, reminded the jury that their decision-making on the verdicts should not be guided by an intention to send a message to the community or anyone else, but only by the law as instructed by the judge.

After the defense finished Kerkhoff had one last chance to make their case to the jurors, and knowing the defense wouldn’t have an opportunity to retort, she decided to throw out every lie she thought might stick in a last ditch effort to turn this trial around. She began with an audio clip that was esentially just the noise of glass breaking over and over again, yet it was unclear where this audio was taken from or whether or not it was a single audio file or mulitple audio files overlaid upon each other. Taking every opportunity to say the word “destruction” and “riot” Kerkhoff claimed that the defendants looked happy and excitied as they saw the property destruction and that “their enthusiasm was designed to help.”

She claimed that all defendants were with the march for its entirety, despite that never being proven in court, and emphasized their choice to stay in the march. She claimed that even if the jurors gave the defendants the “benefit of the doubt” that they didn’t know about the property destruction initially, by the time the group got to Franklin square, a seemingly arbitrary point to choose, that they had to know about the destruction at that point and should have immediately left. The only takeaway from that, seems to be that Kerkhoff admits there is doubt in this case.

Kerkhoff made more dubious claims that belied the governments assault on resistance, such that it’s a “privilege and entitlement” to expect the police to follow their own rules, in this case to give a dispersal warning to protesters before arresting them. She even went so far as to suggest that protesters studied the Standard Operation Procedures to see what they could get away with when protesting. Well if that’s true, the protesters were probably the only ones in DC who read them because MPD surely doesn’t know their own rules.

The government revealed its utter desperation during the closing arguments. Kerkhoff used the word “riot” 27 times in a twenty-minute long rebuttal. She made every single pro-cop appeal, asking if the officers who testified were bullies, in the same breath as nonchalantly explaining the use of military grade weapons like stingballs and OC pepper spray. Then, she literally asked jurors to shut off their brains when making their decision. “The Judge is going to instruct you on ‘beyond a reasonable doubt’” she said, “And you can tell that it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot.” And in one small sentence obliterated the entire purpose of the jury system – like ya, we already know it’s a joke. After that, the judge tried to save her ass by claiming “surely she didn’t mean that,” because reasonable doubt is the entire point of having a jury witness a trial. It appears that the government’s case is so flimsily built out of solely political bias, that they can’t even play by their own rules, which are structured to favor them.

For now we celebrate, this was a powerful blow to Kerkhoff’s outrageous conspiracy theory. We celebrate for the love of the first 6 comrades to be free from this case of absurd state repression. But the battle isn’t over as 188 defendants remain. The Office of the United States Attorney has already issued a statement saying they “look forward to the same rigorous review for each defendant.” While we don’t know what the US Attorney’s Office plans to do next, now is the time to put enormous public pressure on them to drop the charges for all remaining defendants.

So, dear listener, we have a list of suggestions: drop hella banners! Hold rallies and demonstrations! Get more folks talking about this case! Bombard Kerkhoff’s office with phone calls to drop the charges! Let this victory fuel our love and rage, because we can only win through solidarity.