For nearly a year and half the US Attorney’s Office has sought to put protesters arrested during the Inauguration in prison for decades. In spite of the massive amount of time and resources they have poured into this case, the prosecutors are claiming they need even more time.
On April 11, a week before the next J20 trial was set to start, prosecutors asked for a continuance, claiming they need time to find an expert witness. A judge granted this motion, meaning the trial scheduled to start on April 17 has been pushed back to June 4. Prosecutors have similarly asked for a continuance for the trial of protesters scheduled to start on April 26. It does not appear that prosecutors will seek a continuance for the J20 trials scheduled to being in May, as they claim no expert witness is required for them.
This continuance stems from the prosecution’s bizarre request to both admit as an expert witness an FBI agent who had infiltrated the non-violent Occupy Wall Street movement and a demand that she be allowed to testify anonymously. The prosecution hoped that the “expert” would talk about the “black bloc tactic” and explain how, in her opinion, videos of the anti-capitalist, anti-fascist march show that tactic being used. A judge, however, severely limited the scope of this “expert’s” testimony. The FBI agent and former infiltrator would not have been allowed to analyze videos of the protest and would only have been allowed to serve as an “educational” witness about the “black bloc tactic” and related terminology. Additionally, the judge rejected the prosecution’s request that the witness be allowed to testify anonymously and denied the request for a protection order forbidding the defense from sharing the witness’s identity and CV with third parties.
Per the prosecution’s motion, the limited scope of their expert’s potential testimony and the “threat” posed to the expert if her identity was to be revealed meant that it was not worthwhile for her testify. In the same motion, the prosecution gives the impression that they would have won during the first trial if only they had an expert witness. They also strongly imply that without such a witness they will yet again lose. According to the prosecution’s motion they:
cannot, in good conscience, ask another fourteen citizens to sacrifice a substantial amount of time and energy to sit on this jury without presenting the evidence of an “educational” expert on the black bloc tactic and terminology used.
This is particularly jarring for a number of reasons. First, media interviews with jurors from the first trial made clear that it wasn’t a particularly close call. At least one juror indicated that they made their decision during the prosecution’s opening argument, when they freely conceded no evidence tied the defendants to property destruction. Second, the prosecution is essentially conceding that it can’t win its case as is. They can’t find an expert, which is the only way they can claim to win, even though they “have actively worked to identify and secure a qualified expert for many months.”
They try to imply that witnesses for the prosecution face a unique threat, though they’ve presented no evidence that any previous witnesses have faced anything other than public criticism. Given that many of them are involved in the policing and infiltration of First Amendment protected activity, this is to be expected. Conflating public criticism with threats serves the purpose of demonizing the defendants and their supporters. It’s also Jennifer Kerkhoff’s desperate attempt to save her reputation. Kerkhoff is facing an unmitigated disaster, as pushing forward for over a year with this case has led to humiliating rebuke after humiliating rebuke. She’s looking for someone or something to blame for her failures. This motion should be extremely embarrassing to the prosecution.
If the prosecution can’t in “good conscience, ask another fourteen citizens” to sit through a trial of protesters, there’s a solution. Drop the charges.