Far From Over: An Open Letter to Former J20 Defendants

“From the beginning, we were targeted not because of what we did or didn’t do on J20 – ideas of guilt or innocence are for our enemies, after all. We were targeted for being willing to stand up defiantly to the Trump regime, resurgent fascism, and the whole of capitalism.”

On January 18th, the Assistant United States Attorney Jennifer Kerkhoff filed a motion to dismiss the charges against 129 J20 defendants. This is a big development, but this case is far from over.  While this can be seen as a victory in many ways, it is also an opportunity for the State to double down and intensify their attacks on 59 of our J20 comrades. If you just had your charges dismissed, there are a few important things you should know, but don’t let them stop you from resisting and being in solidarity with the remaining J20 defendants.

You may be wondering why your charges are being dismissed now, after the prosecution spent a year aggressively trying to prosecute you. The narrative the State is trying to put forward, in the courts and the media, is that the remaining 59 (or at least some of them) are the “real criminals.” This is bullshit – don’t buy it! The reason our charges have been dropped is because Kerkhoff wants to ensure she wins at all our expenses – which means sending 59 of us to prison…if she can. But the State’s losses (i.e., acquittals) in the first trial has made them worry about their prospects of success (i.e., convictions, and thus prison time) in future trials. So as the criminal legal system is designed to do, Kerkhoff has taken a strategic move to divide our ranks and attempt to force more plea agreements, set herself up for greater success in future trial blocks, or just ratchet up the pressure on the remaining defendants.

Yet the extensive solidarity organizing, media work, and fundraising that supporters around the country and around the world pulled together for the first trial group, and indeed for all the defendants, demonstrated its power to defeat the State and its ploys. We defeated the prosecutor’s first attempt to make presence at a disruptive demonstration a criminal conspiracy or aiding or abetting so-called crimes, both in court and in the press. The US attorney’s office admitted this much in the motion to drop our charges; however, they are still pursuing the exact same conspiracy allegations against the remaining 59.

It’s important to remember that it may never be clear why 59 people still have charges – it may be that the government feels they have a better ability to prosecute them, or it may be retribution for speaking in the media, political organizing, past criminal history or literally anything.  But what should always be clear is that every decision the prosecution makes is intended to help them win, and thus we should be prepared to fight and resist at every turn, at every new development in our case.  We have started to build momentum to win this case, and can’t stop now. Let’s not forget – SOLIDARITY GETS THE GOODS!

From the beginning, we were targeted not because of what we did or didn’t do on J20 – ideas of guilt or innocence are for our enemies, after all. We were targeted for being willing to stand up defiantly to the Trump regime, resurgent fascism, and the whole of capitalism. Almost a year ago, the majority of us agreed to points of unity for approaching our defenses.  Those continue to stand.  Now it is especially critical that we reject the State’s idea of separating 59 of us from those who they’ve recently decided are less prosecutable. The basics of the case have not changed. These remaining 59 defendants are being targeted and it is still about setting a precedent to squash dissent. If the State can get away with repressing these 59 comrades, we can be sure they’ll be coming for the rest of us next time.

But here’s the good news: sticking together, refusing pleas, fighting back in the courts, the media, and the streets, WORKS! Now we have the opportunity to continue to hold strong and support our friends. By doing so, we’re not only helping to protect our more vulnerable comrades, we’re making it harder for the State to get away with repression like this in the future.

Dismissed without Prejudice:  Everything is Complicated and Nothing is Ever Perfect 

In each of Kerkhoff’s individually filed motions to dismiss the charges against 129 defendants, Chief Judge Robert Morin ordered the “case dismissed without prejudice.”

Simply put, “dismissal without prejudice” means that the government reserves the right to refile the same charges at a later time. Essentially, the prosecutor is just using its discretion to dismiss the charges, and that discretion can change at their whim.

The other type of dismissal is “with prejudice,” in which case the prosecutor cannot charge you again for the same crimes. This might happen in a situation where the judge dismisses the case for some reason, the prosecutor does not meet the requirements of speedy trial, or the court or the prosecutor believe you were wrongly charged. You can imagine that last one doesn’t happen often.

In general, it is very rare for cases that are dismissed without prejudice to be refiled, but it does happen sometimes. Common scenarios that might motivate a prosecutor to refile previously dismissed charges include the discovery of new evidence which the prosecutor believes makes their case stronger, or a former defendant picking up a new charge in the same jurisdiction which draws the prosecutor’s ire.

This situation fortunately doesn’t last forever; the prosecutor is still bound by the statute of limitations! But unfortunately, in D.C., that’s generally 6 years for most felonies, and 3 years for other offenses. See D.C. Code § 23-113. It can sometimes get pretty complicated as to when that time period starts running or what situations might suspend that time period, so talk to your lawyer if you have questions or concerns.

The J20 case is obviously ongoing, and that includes the investigation of it. The lead detective was in the courthouse for the entire first trial, listening and watching people on breaks, collecting evidence to use later on. We should also assume that they are continuing to monitor social media accounts.

Anything you say that sounds even a little incriminating – especially if said publicly or online – will be used against the remaining defendants, or land you or another right back in court where you were. The conspiracy charge allows the prosecution to introduce any statements of alleged “co-conspirators” at trial, even if they are unindicted “co-conspirators.” Remember that when what you said as joke is read in a court transcript, it sounds a lot less funny and lot more sketchy. We like to remember the wise words of Eric McDavid’s lawyer from a few years back, “Imagine what you say as a ticker tape coming right out of your mouth and onto a court transcript.” Speak like that is the case.

With these considerations in mind, we offer the following thoughts.

DON’T:

• Talk about anyone’s intent, activities, planning, anything that could be used as evidence.
• Say things like, “I can’t believe my/their charges got dropped considering…”
• Talk about what happened on J20 before the handcuffs were on, so to speak.
• Assume that the people who still have charges have particular evidence of the alleged crimes levied against them – or that this evidence is irrefutable.
• Speculate as to why people still have charges.
• Allow the possibility of charges being re-filed to give the government the power to continue to repress social movements and bolster a culture of paranoia.

DO:

• Talk about being a defendant and the experience of being prosecuted if you want to. This is when you can and should talk about everything that happened once the handcuffs were on! Sharing your story is a powerful tool in building support for your remaining codees (i.e., codefendants)!
• Stay careful and stay vigilant!
• Remember what brought you to the streets on J20 and keep organizing for liberation in your communities!
• Support your former codefendants! Stay engaged! Help us fight back!

Back in the Game: Some Ideas of How to Get Involved

Now that your charges are dropped, you have an opportunity to reciprocate the incredible solidarity work that helped get your charges dropped by taking a stand for your former codefendants (if you haven’t already!). They need you more than ever, and you are well positioned to fight for them until they too are free. The list is endless, but here are a few things to get you started:

• Join or form a local support crew. You know what it’s like to face these charges, and you know what kind of support is needed. You can start small by tabling at events and distributing literature. Write postcards and letters of support to your co-defendants still facing trial.