In a scene likely to induce deja vu, opening arguments began today in the second trial of protesters mass arrested during Trump’s Inauguration. Assistant US Attorney Jennifer Kerkhoff stood before a DC jury today, relying on a refined, but largely similar version of the same narrative that failed to persuade a DC jury the last time. Kerkhoff yet again trotted out stories about frightened business owners and employees who cowered as a “sea of black masks” “attacked” windows, acts Kerkhoff labeled “violence and destruction.”
Kerkhoff’s narrative is still, of course, deeply misleading. It rests on the theory that the anti-capitalist, anti-fascist protest, a First Amendment protected march, was, in fact, not a march at all. Instead, it was a preplanned, coordinated riot, making all of its attendees part of a conspiracy. In a particularly strange rhetorical move, given the clear First Amendment connotations of the term, Kerkhoff described the several hundred strong crowd as engaging in “collective action.”
There are key differences between this trial and the earlier one. In the previous case, Kerkhoff freely conceded that none of the defendants were personally suspected of engaging in property damage. This time, Kerkhoff is alleging that three of the four defendants did engage in property destruction. The remaining defendant’s, however, main role in the “conspiracy” is that he was present and that he been in a previously existing group of 45 people, which shared information about upcoming protests. Since he received information about the publicly announced and advertised anti-capitalist, anti-fascist march this is apparently proof of a conspiracy.
Defense attorneys are disputing the identification of their clients. Kerkhoff told jurors that they “get to be the detectives,” and look at videos and photographs of masked individuals and determine if they were the defendants. Defense attorneys flipped this argument on its head, stating they welcomed the chance for the jurors to take on the role of detective, as all the prosecution had to offer was grainy video and blurry photographs from which no identification of their clients could be made. As one attorney for the defense pointed out, even though a Metropolitan Police Detective has been working full time on this case for 17 months this is the best evidence they can produce. He asserted they were desperate to pin the property destruction on anyone.
Attorneys for two defendant brought up police brutality endured by their clients, who were charged with assaulting a police officer. An attorney for Anthony Felice explained how an office screamed at his client “get the fuck down” as he slammed him onto the ground. Once thrown on the ground, the officer “gave him a good baptism of pepper spray.”
A common theme of all four defense attorneys was attacking Kerkhoff’s characterization of the anti-capitalist, anti-fascist bloc as riot. Attorneys stressed that it was a First Amendment protected assembly, that it was not a homogeneous group, and that only a small minority committed any property destruction, even though police responded by arresting 230 people.
While Kerkhoff did argue the protest was a riot and a conspiracy, noticeably absent in her presentation were any arguments that even alluded to the inciting a riot charge. Inciting a riot, unlike engaging a riot, is a felony charge. At the previous trial, the inciting riot charge never made it to the jury. Typically, after the prosecution makes its case the defense will move a for a judgement of acquittal, arguing the prosecution’s evidence is so insufficient that no reasonable jury could find the defendant guilty on the count. Such motions are rarely granted, but Judge Lynn Leibovitz dismissed the felony county of inciting a riot.
There were several notable individuals present in the courtroom. Chelsea Manning, who has been an outspoken supporter of the J20 defendants was present for part of opening arguments. It was also reported that US Attorney for the District of Columbia Jessica Liu was present. Liu is ultimately Kerkhoff’s boss.
While four defendants went on trial today, legal wranglings continue in the trials of the other 55 defendants. Trials that were set to begin in March and April were pushed back to June. The prosecution wanted to allow an expert witness to testify anonymously, but were not allowed to do so. They then claimed they needed more time to find an expert, implying they couldn’t win without an expert. Originally, six people were supposed to go on trial today, but two defendants had their trials continued to a later date. In one case, it was because a judge found that the prosecution had insufficient evidence connecting the defendant to any conspiracy and asked prosecutors to review similarly situated defendants. Unfortunately, instead of having the charge thrown out prosecutors are getting more time to make their case–even though they’ve already had 17 months.
Kerkhoff during her opening arguments claimed the trial wasn’t about protest or dissent. But before the first marcher ever stepped foot out of Logan Circle police had deployed an undercover agent to infiltrate J20 planning meetings and research “anti-establishment causes.” On January 20, 2017, police elected to engage in an illegal and unconstitutional arrest of everyone in proximity to the anti-capitalist, anti-fascist march. And Kerkhoff and the US Attorney’s Office chose to bring mass felony charges against nearly 200 people, the overwhelming majority of which they concede had no connection to the property damage. The crux of the case, even this time around where prosecutors are trying to tie some defendants to the property destruction, is that this First Amendment protected march was a criminal activity. Kerkhoff has claimed the defendants can’t hide their actions “behind protest, like you can’t hide behind a mask.” Yet, it is Kerkhoff, by trying to turn a political demonstration into a riot that is masking what it is in fact a political persecution.