US Attorney Brings Unprecedented Mass Felony Charges

Dozens of the over two hundred people arrested protesting President Trump’s inauguration on January 20 (‘J20’) have appeared in court over the last two weeks.

(Content Advisory: Sexual Assault)

The arrests took place on the morning of January 20 during an ‘anti-capitalist/anti-fascist’ march, which traveled approximately sixteen blocks, during which police attacked protesters, medics, journalists, and bystanders with chemical weapons, batons, and concussion/flashbang grenades. Several corporate store windows were broken, and there was a melee as part of the crowd was able to charge through police lines to escape the mass arrest as officers began to move into a ‘kettle’ formation, eventually arresting every person in the vicinity.

The American Civil Liberties Union recently filed a lawsuit against DC police over constitutional, civil, and human rights violations carried out by local and federal authorities during the mass arrest. Everyone in the mass arrest was detained outdoors for six hours without access to food, water, or restrooms; one arrestee described the experience as “like being in a cattle car.” The lawsuit states that ‘One of the MPD officers, Defendant Officer John Doe 96, made clear to the detainees that no toilets would be made available by stating in response to one detainee’s request that she should “shit [her] pants” to prove she needed a toilet.’

One of the journalists arrested, Shay Horse, told Democracy Now! “I felt like they were using molestation and rape as punishment. They used those tactics to inflict pain and misery on people who are supposed to be innocent until proven guilty.” The lawsuit describes, among other physical and sexual abuse, that officers laughed while rectal searches were being performed, fondled arrestees’ testicles, did not change gloves while moving from one individual to the next performing anal searches, and “manual rectal searches were performed in the presence of several other detainees and approximately five to ten other MPD officers, including at least one or two female officers.”

Observers from the Washington, DC Office of Police Complaints (OPC) who were present on January 20 say that the police attacked protesters and bystanders violently and without warning. The OPC released a damning report which details how DC Metro Police (MPD) violated their own policies that day:

“When MPD corralled people, at 12th and L Streets, [the protesters] were not allowed to leave. In addition, there is no indication in witness reports, nor any observations by OPC monitors, that any warnings were given either before or after the police line cordoned off those who were later arrested… [pepper] spray was deployed to move the crowd, without warnings, and in many instances it was used on people who were simply standing in the wrong place…a verbal command to step back should have preceded the use of the weapon, and that would have been sufficient to move the crowd.” – DC Office of Police Complaints

Washington DC’s city council has already allocated $150,000 for an official investigation into police misconduct on inauguration day.

In February a federal grand jury returned a felony riot indictment on everyone who was mass arrested after DC police surrounded and ‘kettled’ the anti-capitalist/anti-fascist march along with everyone else in the vicinity. The first indictment threatened sentences of up to ten years for 214 individuals swept up in the kettle, with charges against some reporters and legal observers later dropped (some reporters still face charges.)

On April 27, a new superseding indictment was issued, adding several more felony charges to all defendants, who now face potential sentences of up to 80 years. All defendants, including the majority of whom who have had little to no evidence presented against them, face felony counts of Inciting or Urging to Riot, Rioting, Conspiracy to Riot, and five counts of Destruction of Property. While the indictment mentions a few individuals specifically accused of breaking windows and throwing objects at officers, it mostly invokes the collective guilt of the entire crowd based only on their presence at an anarchist protest, at times citing protest chants or black clothing as evidence of ‘conspiracy.’ The various counts of property damage brought against everyone in the indictment include a limousine destroyed hours after the mass arrest was already underway.

The unprecedented mass felony case against inauguration day protesters is being brought by the US Attorney’s Office (USAO), which answers to Attorney General Jeff Sessions. Civil liberties advocates have objected to USAO prosecuting the case against anti-Trump protests on behalf on the Trump administration, as opposed to leaving the case to local D.C. prosecutors. The prosecution is being overseen by Assistant US Attorney Jennifer Kerkhoff, a former corporate lawyer who once donated to the Bush-Cheney campaign, and Assistant US Attorney John Borcher. Kerkhoff and Borcher work under Channing Phillips, the US Attorney for the District of Columbia.

DC Metro Police Chief Peter Newsham, who oversaw the January 20 mass arrest and recently settled a lawsuit for a similar 2002 protest mass arrest, is still involved in the case, according to a recent Department of Justice press release. Also involved is DC police Detective Greggory Pemberton, the lead detective on the raid of the home of a protest organizer named in the superseding indictment. Pemberton serves as local treasurer for the Fraternal Order of Police, a right-wing police union which endorsed Donald Trump for president.

The most recent hearings were primarily concerned with scheduling trials, as well as status hearings and motions hearings taking place before trials. Defense attorneys had filed motions to dismiss the superseding indictment, as well as to disclose instructions given to the grand jury which returned the superseding indictment; these motions will be discussed at hearings in July.

Status hearings regarding the use of data from protester’s phones taken by police were set for October 6, October 13, and October 27 of this year. The government agreed to comply with Judge Lynn Leibovitz’s request to release all cell phone data to defendants by July 5. Comments made at hearings indicate police and prosecutors may have been assisted by the Israeli firm Cellebrite to hack into protester’s phones. The defense also made a motion to instruct the government to not destroy any evidence in the case; this motion was granted.

Also discussed in the hearings were difficulties with the court’s e-filing system.  Defense attorneys were told they had to send any motions to each other individual defense attorney, which some pointed out was no easy task as the format of the government’s case forces each of the over two hundred defendants to have their own counsel. One defense lawyer requested that the court provide a written record of Judge Leibovitz’s oral instructions, as they were unable to attend in person each of the many hearings potentially relevant to their client’s defense. Judge Leibovitz explicitly refused, saying, “That’s not happening. I’m not doing that.”

Counsel for Alexei Wood, who livestreamed the entire march leading up to the mass arrest, brought up first amendment issues in his client’s case. He indicated that he may seek to separate Wood’s case from the other defendants, since the nature of Wood being arrested while livestreaming means that clear video evidence exists as to what he was doing the entire time. (Independent journalist Aaron Cantu also still faces felony charges under the superseding indictment.)

Wood, along with other defendants who insist on exercising their right to a speedy trial, now has a scheduled trial date of November 20, the first trial of inauguration day protesters set to take place. Other defendants have trial dates in December and scattered throughout 2018.

The government’s case so far appeared to hinge on separating defendants into four different groups with different trial scheduling, which would allow the US Attorney’s Office to bring defendants with more evidence against them to trial first as they attempt to build the other cases for later trials. This strategy appears to have partially failed as those in Group 4, whose guilt the government asserts based only on their presence at the protest, are now among those first to go to trial.

Some evidence, including police body camera footage, has already been given to some defense counsel by the government through discovery. Assistant US Attorney Jennifer Kerkhoff expressed anger at in court after body camera footage showing police attacking demonstrators appeared in an article by the The Indypendent.

Kerkoff introduced a motion to forbid defendants from sharing any discovery video under threat of being held in contempt of court, a measure which could prevent evidence from being gathered for future civil suits. The motion was not ruled on but is expected to be granted or denied by Judge Leibovitz at a hearing next month.

The piling on of additional felony charges to all defendants appears to be an attempt to coerce those arrested into signing plea deals instead of going to trial.  Several defendants have signed non-cooperating plea deals for misdemeanor riot charges in exchange for a suspended sentence, probation, and community service.  Over half of those named in the indictment have signed a statement of unity pledging to not cooperate with prosecutors against their co-defendants. Dane Powell, who plead guilty to felony rioting and felony assault on a police officer, has a sentencing hearing on July 7. He faces a statutory maximum of 10 years in prison and a $25,000 fine, or both.

On Sunday, June 25, a coalition of local groups, including DC Legal Posse (who helps coordinate support for J20 arrestees) held a ‘speakout against fascism and state repression’ outside DC Metro Police headquarters.

With a legal battle expected to last over another year, both the prosecuting attorneys, defense lawyers and supporters of those arrested are strategizing for the many months ahead.

Defendants and supporters are standing strong in the face of this outrageous and continued repression.  We will keep fighting until everyone is free.   –  Sam Menefee-Libey, DC Legal Posse

When asked for comment, William Miller of the US Attorneys’ Office for DC said he could not remark on an ongoing case.

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