Chief Judge Robert E. Morin of the D.C. Superior Court found on Wednesday that federal prosecutors suppressed potentially exculpatory evidence against six Inauguration Day protesters. In a motion filed late last night, attorneys for the defendants accused the government of withholding evidence that could have exonerated their clients — a serious violation of pretrial discovery rules. Attorneys allege that the state withheld evidence by editing a video of a protest planning meeting. Defense attorneys called on the court to sanction Assistant U.S. Attorney Jennifer Kerkhoff for “blatant hiding of evidence” and requested that the indictment against their clients be dismissed.
At pretrial hearing Wednesday afternoon, Morin agreed that the prosecution had violated the “Brady rule,” which governs the state’s pretrial obligations to disclose exculpatory evidence, but declined to rule on the defense’s motions to dismiss the indictment or suppress the evidence. Morin will rule on those sanctions next week.
“The government has abused its power by hiding discovery from all defendants, purposefully choosing not to disclose Brady information.”
“The government has abused its power by hiding discovery from all defendants,” the attorneys, led by Andrew O. Clarke and Cary Clennon, wrote in the motion, “purposefully choosing not to disclose Brady information, and calling into question the integrity of all of its third-party video evidence and proffers in open court.”
J20 supporters cheered Morin’s finding, but pushed for serious sanctions. “We hope that the court further recognizes that these violations are characteristic of the U.S. Attorney’s approach to this case from day one and their shameless attempts to criminalize standard acts of organizing and protest,” said Sam Menefee-Libey of D.C. Legal Posse, which is coordinating support for the defendants. “We hope that other aspects of the prosecution’s strategy, including use of right-wing ultranationalist sources and many repressive tactics drawn from the post-9/11 security state, are also shut down by the court.”
The trial for the latest tranche of J20 defendants — Matthew Hessler, Christopher Litchfield, Daniel Meltzer, Dylan Petrohilos, Clay Retherford, and Caroline Unger — is slated to begin June 4. They are accused of conspiring to commit acts of violence during Donald Trump’s inauguration in Washington, D.C. A key piece of evidence in the state’s case against them, as well as other protesters, is a video of a January 8, 2017, meeting of “Disrupt J20,” the umbrella group under which left-wing activists organized the protests.
The video of the planning meeting was provided to investigators by Project Veritas, a controversial far-right media group known for “sting” operations against its political opponents and the publication of selectively edited videos. In the J20 video, organizers can be heard discussing plans for blockades and other civil disobedience. At one point, a speaker promises to make the inauguration a “giant clusterfuck.” At no point do they explicitly endorse property destruction.
Defense lawyers say the government edited the Project Veritas video to exclude evidence favorable to their clients.
“Assistant U.S. Attorney Jennifer Kerkhoff has repeatedly shown contempt for the legal process in her zeal to convict political activists,” said Menefee-Libey. “Federal prosecutors are prepared to hide evidence, malign political organizing, and spend millions of taxpayer dollars in an attempt to put anti-Trump protesters behind bars for decades.” (A representative for the U.S. Attorney’s Office declined to comment for this story.)
The J20 prosecution has been ongoing for well over a year. Thus far, prosecutors have had little success in their effort to collectively criminalize protest participants. In December 2017, a jury acquitted the first six defendants to face trial. Charges against an addition 129 were dropped in January 2018. A total of 59 defendants still face felony prosecution.
In its filing, the defense also accused Kerkhoff of disclosing new video evidence without notifying the defense. If Morin decides not to dismiss the charges against the six defendants, the defense lawyers are asking for the entire Veritas video to be suppressed at trial.
Prosecutors have maintained that the footage redacted from the video had no evidentiary value. Kerkhoff asserted in court that the only two minor edits were made to the video: one at the beginning, when the Veritas infiltrator can be seen in a bathroom mirror, and another at the end, when an undercover police officer’s face appears on camera. “We cut that part out,” Kerkhoff said at a hearing on April 6, 2018, “and then provided everything else to defense counsel.”
“What better exculpatory evidence for the Defense than the words from the person sent to capture a nefarious meeting stating right after the meeting, ‘I don’t think they know anything’?”
But that’s not the whole story, defense attorneys said in their filing. Recently, the defense obtained the full video after the court compelled prosecutors to produce an unedited version. According to their motion, the full video “shows the creator of the video coming from the bathroom, walking past a huge group of people talking loudly and then sitting down in a breakout session already in progress.” More importantly, toward the end of the video, the Veritas mole can be heard saying, “I was talking with one of the organizers from the IWW”— the Industrial Workers of the World, a left-wing group — “and I don’t think they know anything about any of the upper echelon stuff.”
“This is exculpatory evidence to the defense,” the defense motion says. “The government plans to argue that Mr. Petrohilos and everyone else at that meeting were intending to plan a violent protest. What better exculpatory evidence for the Defense than the words from the person sent to capture a nefarious meeting stating right after the meeting, ‘I don’t think they know anything’?”
In the 1963 case Brady v. Maryland, the Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused … violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Under the Brady rule, prosecutors must disclose any information that might help the defense in advance of trial.
If not for the court compelling the government to produce the whole video, the defense would never have seen what may be exculpatory evidence.
Along with the suspicious edits, defense attorneys say that on April 12, 2018, the government uploaded — to a file system shared by prosecution and defense attorneys — an additional 45 minutes of video “seemingly from the same planning meeting,” but from another angle. None of the defense attorneys had previously seen this footage; it was never mentioned in the Government’s Designation of Evidence, and the government did not announce that new videos had been uploaded.
“Although defense is now in possession of this information, this blatant hiding of evidence leads counsel to have to go through hours of video evidence in this matter again to make sure there aren’t any other instances when the government has clipped or misrepresented evidence,” the defense lawyers state in their motion. “That is an impossible task and should not be the burden of the defendants.”
In March, lawyers for defendant Cassandra Beale also accused prosecutors of a Brady violation when they failed to disclose that the government had misidentified Beale in a video of a protest planning meeting — an incident supporters of the J20 defendants seized on.
“At best, the U.S. Attorney’s Office is playing fast and loose with the rules of discovery.”
“This motion identifies an ongoing pattern by this prosecution,” said Menefee-Libey. “At best, the U.S. Attorney’s Office is playing fast and loose with the rules of discovery; at worst, they’re knowingly withholding evidence that could mess up their case and seeking to convict these protesters by any means necessary.”
The apparent cooperation between federal prosecutors and far-right groups has been a subject of controversy throughout the trial. Undercover D.C. police officer Bryan Adelmeyer also attended the January 7 planning meeting. According to the government, the police did not know Project Veritas had sent a mole to the meeting until the video was released online. At that point, prosecutors say, they requested a full copy of the footage from Project Veritas. But J20 supporters have questioned the extent of the government’s relationship with Veritas.
“The prosecution has entered into evidence a video recorded by a third party that both has a reputation for dishonesty and is clearly biased against the defendants,” said Chip Gibbons, the policy and legislative counsel for Defending Rights and Dissent. “The public absolutely has a right to know about the extent of law enforcement collusion with a right-wing outfit seeking to demonize and delegitimize protesters.” Gibbons, along with the National Lawyers Guild, have filed Freedom of Information Act requests pertaining to law enforcement involvement with third parties like Project Veritas.
Last September, Kelly Weill reported in the Daily Beast, the U.S. attorney sought to introduce a series of videos ripped from right-wing YouTube channels, including one produced by the far-right Oath Keepers militia.
The defense’s motion comes amid another Inauguration Day protest trial, which began May 14, against four defendants: Michael Basillas, Seth Cadman, Anthony Felice, and Casey Webber. On Wednesday, jurors heard testimony from a property manager of a building housing a Starbucks whose window was damaged on Inauguration Day. Another set of defendants are set to go on trial beginning May 29. Morin, the D.C. Superior Court judge, heard the defense’s Brady violation motion Wednesday morning at a pre-trial hearing. He indicated that he will likely introduce sanctions against the U.S. Attorney for the Brady violation, but won’t rule on those until next week.
During the hearing, Morin also ruled to permit testimony from Christina Williams, an FBI analyst who until recently headed the “Domestic Terrorism Analysis Unit.” Prosecutors portrayed Williams as an expert on “black bloc” tactics, in which protesters dress alike and mask their identities. In a May 18 pretrial hearing, Williams testified that she had overseen the preparation of FBI intelligence reports on “anarchist extremism” but had no specific FBI training regarding black bloc.
On cross examination, Williams admitted that she had never personally researched black bloc tactics before the J20 case; never interviewed a participant in a black bloc; or written any memos, reports, or presentations specifically about black bloc workings. Nonetheless, Morin ruled that Williams would be allowed to offer educational testimony about black bloc tactics, but she will be prohibited from commenting on the specific events of January 20, 2017. She is also prohibited from using the phrase “anarchist extremist” or offering definitions of words like “direct action,” “medic,” “marshal,” “scout,” or “affinity group.”
According to a court filing, much of her testimony was to be based on publicly available material, such as books including academic Mark Bray’s “Antifa: The Anti-Fascist Handbook” and Kevin Danaher and Jason Mark’s “Insurrection: Citizen Challenges to Corporate Power.”
When asked in court to comment on one of the books cited in the filing to establish her bona fides, Williams responded, “It’s been a while since I’ve read it.”
Correction: May 24, 2018
An earlier version of this story misidentified the group IWW as International Workers of the World. The group is the Industrial Workers of the World. The story has also been corrected to clarify that a witness who testified at the ongoing trial was a property manager at the building where a damaged Starbucks was located, not a Starbucks manager.