Criminalizing Dissent: J20 Trial Drags On As Jury Deliberations Delayed

Washington, DC – A month after trial first began on November 20, the jury is still out in the case of the first six defendants among those mass arrested by DC Metro Police (MPD) at the anti-capitalist anti-fascist march during Donald Trump’s presidential inauguration on January 20, 2017 (J20).

Update: Thursday Dec. 21, 12:15PM: The jury acquitted all six defendants on trial; they’ve been found innocent of all 42 charges they faced. Check Unicorn Riot on Twitter for more breaking updates.


The highly contested case brought by the US Attorney’s Office in DC Superior Court has largely been allowed to proceed by Judge Lynn Leibovitz. Last week Leibovitz acquitted all defendants of the felony charge of inciting a riot, but gave a green light for the rest of the charges to be considered by the jury. All six individuals currently on trial face five felony counts of property destruction as well as two misdemeanors (engaging in a riot and conspiracy to riot).

Closing arguments ended last Friday, December 15, after they began on Thursday. Assistant US Attorney Rizwan Qureshi made the government’s initial closing argument, and along with it included several brazen assertions seeking to dismiss the First Amendment and concerns about press freedoms raised by the defense.

Qureshi directly disparaged photojournalist Alexei Wood, who was arrested while livestreaming the protest. He seemed to claim that Wood’s use of protest-related terms somehow disqualified Wood from being considered a member of the press.

“How is he an up-and-coming journalist and he’s talking about, quote, black bloc? How is he an up-and-coming journalist and he’s talking about a kettle? I didn’t know what a kettle was before this case. Did you?” -Assistant US Attorney Rizwan Qureshi, in J20 trial closing arguments, attempting to discredit Alexei Wood

Qureshi also tried to assert that street medics being present with first aid supplies was evidence of guilt.

“What do you need a medic with gauze for? […] I thought this was a protest! […] She was aware that there was a riot going on, based on her conduct and, yet, she continued with the group. Why? Because she was going to be there to help members who are in black, who get pepper-sprayed, who get hurt because they’re provoking the police, to mend them and then get them up on their way so they can continue their destruction.

She was aiding and abetting this riot. That was her role. And the evidence supports that [….] As a provider of medical services, she was a co-conspirator. She aided and abetted this group. She wasn’t prepared for a march or a protest. She was prepared for war.”              -Assistant US Attorney Rizwan Qureshi

One of the medic defendants is a registered nurse, which means she is bound by the Hippocratic Oath to render medical assistance to anyone injured regardless of their affiliation.

Assistant US Attorney Qureshi continued to assert the guilt of all defendants based on their presence at the protest, which he characterized as organized crime, that did not fall under the First Amendment.

Qureshi compared the march to a “getaway car” used in an armed robbery, saying that everyone present was intentionally providing cover for the dozen or so people who allegedly broke windows or threw rocks.

In his closing argument, defense attorney Steven McCool pushed back against the government’s guilt-by-association case, “The government would have you believe that everyone, the hundreds of people in that section, are breaking the law simply because they didn’t get up and leave.”

Lawyer Jaime Heine, representing another defendant, also raised similar issues with the prosecution’s logic, telling jurors that, the government is taking things that are perfectly legal […] and trying to convince you that they had been up to something illegal […] We have to draw a line between what is right and what is wrong.”

In her rebuttal after defense closing arguments, Assistant US Attorney Jennifer Kerkhoff seemed to be trying her best to disparage the defendants, and by association the entire anti-capitalist anti-fascist march.

Kerkhoff said protesters showed “entitlement and privilege” by expecting police to issue dispersal orders before a mass arrest; this practice is mandated in Standard Operating Procedures written to uphold MPD’s responsibilities under local DC law.

Kerkhoff also tried to tell jurors that the concept of reasonable doubt, which was repeatedly invoked by the defense, “doesn’t mean a whole lot.” This comment from Kerkhoff led to Judge Leibovitz immediately interrupting her rebuttal, and telling jurors “I’m sure she didn’t mean to say what she just said.”

After the US Attorney’s Office got the final word in the trial, verdict sheets for each defendant were given to jurors as they were escorted out of the jury box to begin deliberations.

Jurors received evidence exhibits from the court on Monday morning, and deliberated all day without incident. On Tuesday, several notes were passed to Judge Leibovitz asking for clarification on facts in the case; Leibovitz told jurors she could not provide them further information and that they had to rely on their memory.

On Wednesday, December 20, jurors arrived in court only to learn that Juror #2 had called in sick, and deliberations would be postponed until Thursday morning. When lawyers and defendants returned to court later at 4 PM on Wednesday, they learned that the court had contacted Juror #2, who had spoken with her doctor and believed her illness would “run its course” by the morning.

Judge Leibovitz asked the jurors to return at 11 AM the next day (the sick juror had asked for a later start time). Alternate jurors have been contacted by the court and advised they may be called in, but Judge Leibovitz’s plan seems to be to proceed with the current jury set, if at all possible.

After the trial ended on Friday and the case went to the jury, we sat down with two members of Defend J20 Resistance, a group that has been organizing support for defendants facing charges from the Trump inauguration protest mass arrests. Watch the interview below. (See below video for transcript.)

Reporting by Unicorn Riot staff. Video and audio production contributed by Sammy DiDonato and Michelle Cox


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Interview Transcript:

Betty Rothstein: Hi, my name is Betty Rothstein and I’m with Defend J20 Resistance. I’m here to support people who are facing, or who are going through trial right now facing felony charges from the January 20th (J20) protests.

Jude Ortiz: My name is Jude Ortiz. I’m also with Defend J20 Resistance, I’ve
been kind of working in solidarity with the defendants since January or early February. I’m also a member of Tilted Scales collective, and that’s how I got connected to the defendants and other supporters. Our kind of working draft of the book for defendants that we wrote as a collective came out, and we had a working draft on January 20th so we were able to send it out to defendants right away and get connected that way. So I’ve been kind of involved in support and solidarity ever since.

Betty Rothstein: On January 20th, that was inauguration day, and masses of people came to Washington, DC to counter the inauguration of Trump and there were protests and demonstrations and marches all day long. And at one in particular, the anti-fascist anti-capitalist march, over 200 people were mass arrested and brutalized by police, and are subsequently facing felony charges and decades in prison.

Jude Ortiz: The prosecutor has done a lot of really interesting, not super unusual, but very like telling things like in the prosecution. So initially when over 200 people were arrested and they were all charged with a felony count, and then that quickly changed to a handful of felonies, people were facing ten years in prison. And then in April, kind of late April of this year, they added on a whole bunch more charges including conspiracy. So people were initially facing 75 years, like when that is actually the second superseding indictment, so like the third indictment. And another way to look at that, [is] it’s like the third attempt by the prosecutor to like put some charges down. And then since then, the judge has actually kind of rolled those back a lot by saying that some of the charges of assault against a police officer were based on outdated statutes so those got taken off. Other charges were filed as felonies, so the conspiracy to riot and engage in a riot were filed as felonies and the judge is like, ‘no those are actually misdemeanors.’

So those got scaled back. And then in the first trial that just concluded today (December 15), after the state, the prosecutors, went through all their evidence, showed everything to the jury, the judge threw out the inciting a riot felony charge for these six defendants on trial. That knocked it down to 50 years in prison. So you also look at that as like three and times when the state’s case got kind of knocked down by legal challenges and legal proceedings because it’s actually literally fabricated charges.

Betty Rothstein: So the way that the state is responding to these arrests, is they’re trying to set a precedent of heavy-handed repression against people who come out in dissent of the Trump administration. And, I mean, this is specifically the anti fascist anti-capitalist march, so it’s it’s definitely about political association and trying to quash that dissent.

Jude Ortiz: And some other things have come up through the kind of legal bickering about jury instruction and whatnot, is in addition to like, the conspiracy charges, that are saying that like, everybody who was arrested was engaged in this thoughtcrime, this alleged conspiracy or alleged plan to go and riot, there’s also the aiding and abetting elements to the property destruction charges. And with that which is a very common legal concept people hear about on like you know TV shows and whatnot, but basically in this case it works that if anybody is in the presence of an alleged crime being committed and they have the intent to help that crime happen they’re just as culpable or guilty as people who allegedly, you know broke the window or whatnot. So it’s kind of like a gateway for the prosecutor to say, actually everybody who was there was guilty of everything that happened and all, you know, allegedly happened, so that opens up these very powerful tools for the prosecutors to just say everyone who protests is guilty whenever the police declare something illegal.

Betty Rothstein: The prosecution is targeting actually just basic elements of protest organizing, and street medics have been a core part of protests and demonstrations for decades. And what street medics do is they’re available in really chaotic situations and especially in situations where, like, there is police violence happening against demonstrators especially with pepper spray or like, the Stinger grenades that were deployed that day. And medics are the first responders who are able to care for people and so the prosecution has been trying to go after medics in that sense because it’s a part of like, their association.

Jude Ortiz: When you look at all of the police apparatus that they had out there, all the mobile and stationary cameras, all of the body worn cameras, all of the other police surveillance devices out there, and some security surveillance footage, the Department of Homeland Security helicopter that was circling over the march, like all that shows that the police were like, actually preparing for war and acting in like these paramilitary ways that were supported physically on the ground by National Guard and also in the air by the Department of Homeland Security. So saying that people being there with first aid equipment, or preparing for like when the police cracked down on dissent, and like mass arrest people, saying that that’s preparing for war is just a totally nonsensical statement and argument. And what, if anything, it shows, [is] that people have like learned from the history of police repression in the United States, and have gone out in the streets knowing that they’re gonna get cracked down on, and in the case that we saw a lot from the footage in trial, like physically pushed down by the police and pepper sprayed and had grenades basically thrown at them, they call them sting balls but they’re projectile weapons that explode with like loud noise and pepper spray.

Betty Rothstein: Something that was initially really striking to me was the cross-examination of Detective Pemberton, who is the lead detective on the investigation and has been like watching and taking notes on all people coming in and out of the court house. So during the cross-examination his political bias was revealed when screenshots of his Twitter account were put up. It was really indicative of the way that the government, in building its case, is relying on far right and alt-right organizations to gather evidence. Pemberton had worked with Project Veritas in order to get footage. He actually got really flustered in court when all of this was revealed, because it was something that he was clearly trying to hide. That same for the prosecution, the prosecution didn’t want it revealed that they were getting footage from Project Veritas and using those sources. And they tried to say that it’s not important, but it’s actually incredibly important, because that’s the way that this case has been playing out the whole time.

Jude Ortiz: And the prosecution’s even gone even farther than that. As atrocious [as it is] that they were they relying on this kind of so-called investigation by these like far right and alt-right sources, but then they also, like the prosecutor at one point, when she was trying to hide the source of the Project Veritas video, and not say in court who had produced the video, even said that the source, or like the kind of genesis of evidence, doesn’t matter. But that’s actually a very fundamental part of like, their criminal legal system, is that where evidence come from matters, and it can be admitted in trial, but it can be given lesser or greater weight. And the police have this concept called chain of custody that one of the other cops later on testified to about how a piece of evidence was handled or transferred from one department or cop to the other because actually it’s true that the source and the kind of history of evidence matters. And then today in closing arguments, in the rebuttal argument, that same prosecutor said at one point that reasonable doubt doesn’t mean a whole lot, and reasonable doubt is this legal concept that the jury is supposed to find people guilty beyond a reasonable doubt. And the state, the government, is supposed to prove beyond that reasonable doubt that people are in fact guilty of what’s been charged. And so the judge immediately jumped in and said like ‘oh actually, no, jury, this this is important, this is very very important.’ And it’s really notable how the prosecutor in addition to be being willing to work with these like far-right ultra conservative and clearly biased and discredited sources, is also willing to throw out the basic tenants that her job is supposed to be supporting and defending, in order to get convictions on these politically motivated charges.

Betty Rothstein: Like I said, they’re they’re testing this out, and it’s already creating a chilling effect in protest organizing, where people are going to look at this, and if you’re going to be facing decades in prison for being a part of a protest, it’s going to make people start to question whether they should actually do that. And so that’s why it’s a really dangerous precedent that the government is trying to establish.

Jude Ortiz: Some of that chilling effect is definitely the charges, the severity, all the time people are facing. There’s also the way the prosecution has worked. We already mentioned the Project Veritas video, and that video was coming from one of their operatives who had, or seemed to have, like a button worn camera or a camera hidden in a button, and was doing this kind of surreptitious recording. And then that became a very crucial part of the government’s case against these defendants, like not just in this trial block, but like all 194 of them who are still facing charges. And there’s also the, at that same meeting where the Project Veritas person was like doing that surreptitious filming, there’s also an undercover cop. And then at Logan Circle, there’s at least three plainclothes cops like who had like their guns and handcuffs and pepper spray and all that, but they were there just dressed in normal clothes like to monitor and surveil. And we see all this, like all the surveillance that was happening, how that tied in with National Guard and Department of Homeland Security, and all these things. And additionally, after January 20th, the government also immediately is putting in requests for data from people’s iCloud accounts to get all this data that they were maybe not able to get off of people’s phones. Or if people got arrested and they didn’t have phones on them, then the government was not able to get this data. So they try to get it in these other ways, it’s also been search warrants against Facebook accounts, there’s been the subpoena against the the web host for DisruptJ20.org, which tried to collect information on 1.3 million IP addresses. So it’s all these different things and it’s a very broad literal dragnet trying to get all this information and data and not only is it very scary for the defendants, but it’s designed to send this message to everybody else that if you’re trying to protest, don’t have planning meetings. Don’t put up a website. Don’t use social media. In fact, don’t even associate. Don’t talk, don’t get out in the streets, and like, don’t do anything. That’s the message that it’s trying to send, and we’ve obviously been combating that with the support and solidarity for the defendants. But everyone who is out there, who’s in resistance, who is dissenting, need to understand that, needs to, like, change tactics and stuff to protect against those attacks from the government.

Betty Rothstein: Something to note about this case is that it’s even absurd that it’s happening and that it’s come to trial. The charges should have been dropped long ago. Because there hasn’t been a full investigation into police conduct on that day. There was money set aside to do that, but it hasn’t been completed and we could see from all of the footage and evidence revealed in court, that the police were acting incredibly violently towards protesters and the police also have their own biases against the people who are demonstrating.

Jude Ortiz: So, I had a lot of trouble not scoffing audibly in the courtroom when the prosecutor was talking about the defendants and other protesters who were there in the streets on January 20th coming at this with a lot of ‘privilege and entitlement’ to, you know, expect that the police would, you know, like, god forbid, like do what their rules say they should do. And her use of that language, which she hadn’t used anywhere else into the very, actually the final word in the in the trial, I think was just as much of a desperate move as like the far-right groups that have kind of sprung out of the internet and like into the streets or trying to infiltrate groups and stuff where they’re actually taking like radical left ideology and words and slogans and iconography and dress. A lot of times they’ll have like kind of far-right people who are going out almost in what it can often be called black bloc, but usually they’re dressed much more like riot cops but without any badges or insignia or anything like that, and they’re taking a lot of this imagery, and they’re they’re trying to use it as their own and kind of like, recuperating and co-opting like our movements in our our struggles and for the prosecutor who has realized so heavily on far-right sources of information to then do that same recuperative move is like very telling of not only how that is a continuum of attacks on us and trying to subvert movements for liberation, but is also a further sign of the overt collusion between this prosecution and the far-right.

Betty Rothstein: We’ve been watching as charges get shaved away as we’ve been proceeding. In fact the next trial group after this one is only facing three misdemeanor counts and isn’t, the prosecution has already dropped their felony charges against them. And we watched the incitement charge get dropped as well by the judge in this case, and so I think we’re watching it sort of fall apart before our eyes. But that isn’t to say that it’s like, a victory, at all. The mass arrest happened without a dispersal order first, and the prosecution has been trying to argue that actually sirens and deploying pepper spray and grenades is a form of dispersal order, but that’s just blatantly not true. And it’s just another place where the government is trying to push a boundary for us to accept that they don’t need to issue a dispersal order before making an arrest. That’s something that could set a very dangerous precedent, not just in protest organizing. Like, anywhere. The government actually spent over 200 million dollars on inauguration day for security for the whole event. And the Metropolitan Police Department alone spent over $300,000, and that includes $42,000 dedicated just to less lethal weapons, including pepper spray and the Stinger grenades that they deployed at protesters that day.

Jude Ortiz: In this first trial, the six defendants are kind of collectively being alleged for the five windows that came out to about $80,000, if I remember correctly from trial, which is, you know, an infinitesimal fraction, it’s nothing compared to those other numbers. And I think it’s also important to know that all the money that they spend those so-called less lethal weapons like the pepper spray and the sting balls and all that, those stay with MPD after the inauguration. And they stay with MPD as they go into a neighborhood such as Barry Farm, which one like overtly racist cop was kind of talking about in a derogatory way. And that cop, he said that they, that herding people into the kettle was like herding people in this African-American low-income project, Barry Farm. And so these cops who have like that history and those mentalities, all that, also have this bonus of all these additional weapons to use on these communities day in and day out for however long they last.

Betty Rothstein: So, this has been incredibly disruptive to the lives of the defendants. Many of them lost their jobs, and have had to subsequently move to DC, because fighting these charges is a full-time job. And that’s why it’s really important that people have been coming together to support people. Because is it actually a lot of work doing this.

Jude Ortiz: So to donate people can go to Defendj20resistance.org/donate. We have had a fundraiser going and there’s been various regional fundraising efforts for defendants because everybody spread out across the country. And we launched a huge fundraiser on the eve of trial with a goal of $250,000 to help support defendants going through trial, starting in November with the first trial, all the way through October of next year, which is how things are currently scheduled. And, so again, defendj20resistsance.org/donate is the place to go. The last I looked at it a few days ago, we’re at maybe $56,000. So people all across the country, all across the world, have been pouring in money to support the defendants. That money has helped us do things like make sure that the defendants have have housing, because like Betty said, people have had to move here like to fight these charges and also been able to provide support for defendants and supporters to go to court, be there every day, it’s really expensive to get around DC. We’ve also been able to work with a collective called Pots and Pans to provide food to people for lunch which also makes it way easier for you to be here since DC, everything in DC is expensive, including food, and so all of these different efforts have been pooled together by people across the country who support and defend the defendants and donations from other people help make all this possible.


J20 Trial Coverage & More:
DC J20 Protest Coverage:
Denver & Minneapolis J20 Coverage:

 

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