July 13, 2018
by Sam Adler-Bell
reprinted from The Intercept
Last Friday afternoon, the U.S. Attorney’s Office for the District of Columbia dismissed charges against the 39 remaining J20 Inauguration Day protesters under indictment, bringing a close to a year-and-a-half-long saga marked by police aggression, prosecutorial overreach, and heartening displays of solidarity by the defendants and their supporters.
“I was sitting in the front row of a civil court proceeding when I heard,” said Ella Fassler, a 25-year-old defendant from New York, whose charges were dropped last week. “I had to hold back a yelp of disbelief. I walked out as quickly as I could and met up with a co-defendant; we hugged, danced around, and called our loved ones. Radical leftists don’t win all that often, so we have to pause and soak in the victory when we do.”
While the U.S. government may be finished with the J20 prosecutions, however, J20 defendants are not done with the prosecutors. Amid the celebrations, the defendants and advocates are turning to a new task: holding prosecutors accountable for their conduct at trial — and for the unnecessary anxiety and ambient trauma suffered by the defendants.
Several former defendants told The Intercept that they plan to file formal complaints against Assistant U.S. Attorney Jennifer Kerkhoff, the lead prosecutor in the case, with the District of Columbia Office of Bar Counsel. Among those working with advocates on such complaints are the former defendants Isaac Dalto, Elizabeth Lagesse, Dylan Petrohilos, Anthony Felice, Rudy Martinez, and Olivia Alsip. Meanwhile, the American Civil Liberties Union has filed suit against the Metropolitan Police Department for its behavior during the protest.
“This isn’t over,” said Sam Menefee-Libey of the D.C. Legal Posse, which has coordinated support for the defendants. “We want to make sure Jennifer Kerkhoff, the MPD, and the whole D.C. U.S. Attorney’s Office face consequences.”
The J20 prosecution had been something of a slow-motion disaster for Kerkhoff. Her prosecution ended unceremoniously, with no convictions at trial and a handful of embarrassing incidents along the way.
After D.C. police arrested some 234 protesters, journalists, medics, and legal observers on January 20, 2017, the U.S. Attorney’s Office made the unusual decision to charge hundreds of people for acts of vandalism committed by a small handful. “A person can be convicted of rioting when they themselves have not personally broken a window or personally thrown a rock,” Kerkhoff told the court in July 2017. “It’s the group that’s the danger. The group that’s criminal.”
Last December, a D.C. jury acquitted the first trial group, rejecting the government’s broad theory of “conspiracy” liability. Soon after, prosecutors dismissed an addition 129 cases, vowing to focus on only the most serious perpetrators.
In May, Chief Justice Robert E. Morin of the D.C. Superior Court sanctioned prosecutors for failing to disclose potentially exculpatory evidence to the defense before trial, a violation of the so-called Brady rule. The rule mandates that, as part of pretrial exchanges, defendants are entitled to access information that might be helpful to their cases. The undisclosed evidence in the J20 trials included dozens of video and audio recordings of protest planning meetings captured by the far-right media group Project Veritas.
Prosecutors were also found to have submitted certain videos edited to exclude evidence favorable to the defense. In a clipped portion of a previously disclosed video, a Veritas agent can be heard saying, “I don’t think they” — the meeting attendees — “know anything about any of the upper-echelon stuff,” implying that many of those involved in organizing the protest had not been part of the purported criminal conspiracy.
Morin, known for his equanimity, betrayed rare traces of pique as he chastised the prosecution for the Brady violations at a May 31 hearing. “Could you explain your office’s representation to this Court that left a clear impression that there was only one video received by Detective Pemberton?” Morin asked, his voice rising. “That was made personally to this court.” Gregg Pemberton was the lead detective in the case who had received the videos from Veritas.
Kerkhoff, who had made the statement in question, was not there to answer for herself; she was downstairs prosecuting a different J20 case. Her deputy, Assistant U.S. Attorney Ahmed Baset, could only respond, “I can’t speak to that at this moment.”
Morin ultimately prohibited prosecutors from using the videos as evidence and forbade the government from pursuing conspiracy charges against the defendants in the next two trial groups. He called the Brady violations “serious” and “intentional,” but reserved judgment about whether they were “malevolent.”
The prosecution responded by dropping charges against an additional 10 defendants. Last month, a jury acquitted one defendant in the second trial group and deadlocked on charges against the other three, resulting in a mistrial. In all, the J20 fiasco resulted in 205 dismissals, 21 plea deals, and no jury convictions.
“The takeaway is that this case should never have been brought,” said Mark Goldstone, a D.C. lawyer who represented multiple defendants. “If the government had direct evidence of anyone throwing a brick through a window, that was the case they should’ve brought. None of this conspiracy nonsense; none of this riot nonsense. Bring the case you have the evidence to support and no more.”
“To put hundreds of people through a year and a half of misery at the taxpayers’ expense does not make any sense,” said Goldstone.
“The dismissal of these charges is long overdue,” said Scott Michelman, senior staff attorney at the ACLU of D.C., who is litigating the case against the police department. “The prosecutor should have known she was proceeding on a flimsy and constitutionally impermissible theory of guilt by association. Hopefully, the U.S. government will learn an important lesson about the limits of their ability to prosecute protesters in the first place.”
“I want to see Kerkhoff disbarred,” said Elizabeth Lagesse, another defendant whose charges were dismissed on Friday. “In my view, everyone in D.C. under her jurisdiction is in danger.”
Lagesse spent countless hours scrutinizing the evidence in her case. It was her close examination of the metadata associated with the Veritas videos that first clued her lawyer, Phil Andonian, to the fact that portions had been edited out. Lagesse said, “That’s what you get for indicting a slightly OCD, unemployed data scientist.”
Kerkhoff’s failure to reveal the existence of nearly 70 potentially exculpatory recordings — all while leaving “a clear impression that there was only one video,” as Morin put it — resulted in sanction in court; the judge dismissed conspiracy charges for the remaining defendants. But meting out punishment for prosecutorial misconduct is a tall order. According to a 2013 report by the Center for Prosecutor Integrity, fewer than 2 percent of prosecutorial misconduct cases are subject to public sanctions. When sanctions are imposed, they’re usually no more than a “slap on the wrist,” the report says.
That number may be even lower for Brady violations, which mostly go unnoticed. “Brady violations are notoriously difficult to prove,” said Bennett Gershman, a professor at Pace Law School and an expert on prosecutorial misconduct. “If the evidence is hidden, you don’t know it exists.”
In 2013, a withering dissent by then-Chief Judge Alex Kozinski of the 9th Circuit Court in San Francisco stated, “There is an epidemic of Brady violations abroad in the land. Only judges can put a stop to it.” Gershman said that Brady violations are likely the “most pervasive form of prosecutorial rules violation” in the criminal justice system.
Even when Brady violations are exposed, they usually go unpunished — because the government can always claim negligence. “The prosecutor will say, ‘Oh, you know we had so much evidence in this case, I just overlooked this. I forgot, it was a mistake, it was inadvertent,’” said Gershman. “To impose discipline, you usually have to show that the prosecutor did it deliberately. And that’s hard.”
There is some evidence, however, that the D.C. U.S. Attorney’s Office is girding itself for a fight. On June 28, eight days before the final dismissals were announced, the prosecutors’ office filed an unusual motion. The motion did not request that Morin, the judge, reverse his finding of a Brady violation — which would have been a sensible move if the government had been hoping to introduce the Veritas video as evidence during subsequent cases. Instead, the motion narrowly asked the court to reconsider a finding: “The Court’s finding that an Assistant United States Attorney made an intentional misrepresentation to the Court is a serious matter,” the motion says. “We ask the Court to review the record and reconsider its finding.”
The request was bizarre: In his ruling on the Brady violation, Morin had been clear that he was not making a statement about whether an intentional misrepresentation had been made. “It was intentional in the sense that the Government made intentional decisions that it made not to disclose,” Morin said of the Brady violation. “I’m not prepared to find that it was necessarily malevolent, but counsel before me is not able to make representations, so I can’t make a complete decision with regard to that.”
Nonetheless, Andonian, the defense attorney, saw the motion as an attempt by prosecutors to shore themselves up against some sort of sanction related to the Brady violation. “The motion was not written in a way that was designed to do anything other than protect Kerkhoff and the office,” he said. That they filed the motion just days before dismissing the remainder of the cases suggests that it only exists to protect Kerkhoff in the event of disciplinary proceedings. “I assume that’s the only reason they went through this exercise,” Andonian said. Kerkhoff is never mentioned by name in the motion and she didn’t sign it.
The government — both in the May 31 hearing about the Brady violations and in its recent motion — has presented a convoluted case that Kerkhoff never denied the existence of additional Project Veritas videos, other than the January 8 video that prosecutors had already disclosed. In both the hearing and the motion, prosecutors argued that their statements only applied to the January 8 video — they never meant to imply there weren’t recordings from other dates. “I will say that, in conversations, it has always been, I believe, the understanding that it was limited to January 8,” said Assistant U.S. Attorney Brittany Keil at the May hearing.
The government’s recent motion is especially tortuous in its discussion of videos recorded by Veritas at an “action camp” on January 14, 2017:
When this Court later asked defense counsel if she had “look[ed] at the video” of that meeting, defense counsel corrected the court (“There’s no video of this”) and government counsel reiterated — correctly — that Officer [Bryan] Adelmeyer had not made a video: “The officer attended. The officer reported back to his officials.”
But the motion conveniently skips over a key phrase. During the hearing, Morin asked Kerkhoff, “Is there a video or a tape of this or what is there?” Kerkhoff responded, “No, Your Honor. The officer attended. The officer reported back to his officials.”
Andonian pointed out that the omission — “No, Your Honor” — is at the heart of the prosecutor’s false statement. “It’s not accurate to say there was not a recording of the action camp. There was,” Andonian said. “And the prosecutors had it in their possession. It doesn’t matter that the undercover officer didn’t record it. Someone else did and the government knew that when it was making representations to the court.” (The U.S. Attorney’s Office declined to comment on Kerkhoff’s conduct or the impending complaints against her.)
At one point during the same hearing, in an exchange with a defense lawyer, Morin said, “What’s being presented to me by the government is they have turned over all the video that they have received to you.” Kerkhoff did not interject to disavow him of that false impression.
“It seems pretty clear that there’s going to be a pretty big punch-back against her,” said Andonian, who has tangled with Kerkhoff in past cases. “This entire debacle is a problem of her own making.”
Gershman agreed that if a judge puts a prosecutor on the spot and she is found to have lied, that’s a more serious matter than a typical Brady violation. He said, “That’s grounds for contempt.” The court has not made such a finding at this time.
Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, believes that the government’s caginess about the videos was motivated by a desire to conceal their provenance: unsavory elements of the far right.
“The prosecution, as we now know, utterly failed. But it failed at the point at which the very ugly, unethical conduct of the prosecutors and police was being cracked open,” Verheyden-Hilliard said. “The police and the U.S. Attorney’s Office are hoping they can just walk away and that their conduct will be swept under the rug.”
Verheyden-Hilliard and the Partnership for Civil Justice Fund have filed a lawsuit under the Freedom of Information Act demanding disclosure by the Metropolitan Police Department of their “relationships, communications, and involvement with right-wing organizations.” The prosecution also sourced evidence from the Oath Keepers, a far-right militia group.
Kerkhoff insisted in court that there was no coordination between Veritas operatives and the D.C. police, despite their attending the same meetings. “The undercover officer was not aware that anyone was there recording it,” Kerkhoff said at court in April. “He was not recording it. He was simply present.”
Verheyden-Hilliard, however, said the public has a right to know the full of extent of overlap between D.C. police and the far right. “I think there’s a real question here as to whether or not the police were attempting to skirt constitutional and statutory restrictions by using right-wing organizations as a proxy,” she said.
After the Partnership for Civil Justice Fund sued the police department for noncompliance with their FOIA request, the police agreed to disclose the responsive documents. But they’ve since been dragging their feet. Ultimately, Verheyden-Hilliard said, “This is going to be for a judge to decide and hopefully order disgorgement.”
Aaron Cantú, a staff writer with the Santa Fe Reporter and the only journalist still facing charges until they were dropped Friday, has covered the far right as part of his job. Cantú, who is a personal friend and has contributed to The Intercept, told me that the most important lesson of the J20 prosecution was the way prosecutors and politically motivated opponents of the protesters worked hand in hand: “The genuine conspiracy in this case was not between the defendants; it was between the far right and the U.S. Attorney’s Office for the District of Columbia.”
Gershman, the law professor specializing in government misconduct, said that the prosecution’s behavior in the J20 case is disgraceful but not surprising.
“This was a big case. This was a case they had to win, they wanted to win. And when you want to win bad, you cheat,” he said referring to the Brady violation. “The prosecutors in this case cheated, and they got caught. And now the question is: What’s going to happen to them?”
For her part, Ella Fassler isn’t convinced that punishing Kerkhoff will solve the problem. “Most of us would be better off without Jennifer Kerkhoffs of the world in positions of power, there’s no doubt about that,” she said, “But there will always be another Jennifer Kerkhoff to replace her if she gets disbarred.”
Gershman tends to agree. The real problem, he said, is a system that grants prosecutors unchecked power. “The prosecutor has the power, in effect, of life and death, freedom and unfreedom. The prosecutor has the greatest power of any government official, and she enjoys almost absolute discretion in how she exercises that power.”
“The shocking thing,” said Gershman, “is that this case was being prosecuted under the national spotlight. The glare of public scrutiny. You’re writing these articles. Journalists are looking at the case. You’d think that under these conditions, they’d feel the need to be more responsible, more careful. To dot the I’s and cross the T’s. But that’s not the case.”
“If prosecutors can violate the rules with such impunity in a case like this,” Gershman said, “think of how frequently — in the hundreds of thousands of cases involving anonymous, poor, uneducated, minority defendants — prosecutors violate the rules to win.”