J20 Prosecution: The Future Of Free Speech

WASHINGTON ― Justice Department prosecutor Jennifer Kerkhoff carried the cardboard evidence box past the jury and placed it next to Officer Andre Reid, the 14-year veteran of the D.C. Metropolitan Police Department seated in the witness stand. Snapping on blue medical gloves inside this downtown courtroom, she took out a JanSport backpack ― the government’s exhibit number 43 ― and began removing its contents: two sharpies, a pencil, a pen, a Florida driver’s license, green goggles, a black bandana, black gloves, sunglasses, an energy drink, a phone charger with a cord, and a black hat.

As jurors looked on, Kerkhoff and Reid examined a mask. “Have you ever heard of the term ‘balaclava’?” Kerkhoff asked? Reid hadn’t. He called it a ski mask. They took a look at a plastic bag containing two bandanas soaked in some mysterious “solution” that had a smell to it. “Can you smell that now?” Kerkhoff asked. Reid could.

The JanSport in question belongs to Michelle Macchio, a 26-year-old from Naples who hasn’t had possession of the bag or its contents in nearly 11 months, ever since she was caught up in a mass arrest during a protest just before President Donald Trump was sworn in as the 45th president of the United States.

Macchio said she was acting as a medic that day. Video shows her with red tape in the shape of a cross on her jacket, and her lawyers say she was carrying a first aid kit. That mysterious foul-smelling solution? Vinegar, which is supposed to dilute the impact of the pepper spray that videos demonstrate police officers shot with abandon that morning.

In the past three weeks, as special counsel Robert Mueller’s investigation into Russian interference in the 2016 election has increasingly jeopardized the Trump presidency’s future, Macchio and her co-defendants are facing down their own. Macchio is one of six individuals currently on trial in the nation’s capital, facing felony charges that could potentially land them in federal prison for decades, or at the very least leave them with felony convictions that would stunt their career prospects and deprive them of certain rights.

Another 181 individuals are facing felony trials in the coming year, though the ultimate resolution of a large number of those cases could depend on how this first trial plays out. Twenty other defendants arrested that day have already pleaded guilty, but just one defendant pleaded guilty to a felony. Seven others facing misdemeanors are scheduled for a trial by judge.

The charges all stem from a mass arrest conducted by police in downtown D.C. aimed at a group of marchers that included anti-capitalists, anti-fascists and anarchists under the umbrella of an organization called DisruptJ20.

Police had kept an eye on what demonstrators had planned that day, sending an undercover officer into a planning meeting where an organizer said their goal was to “make inauguration a giant clusterfuck.” Things quickly got out of control once the group left their gathering point in Logan Circle, with individuals from within the group of mostly black-clad demonstrators breaking store windows, throwing newspaper boxes, spray-painting cars, smashing parking meters and hurling rocks at officers.

How precisely to define the group has been an issue in court, where prosecutors and defense attorneys have sparred outside of the presence of the jury over the use and definition of the term “antifa.” Ultimately, Superior Court  Judge Lynn Leibovitz told jurors that “antifa is short for anti-fascist or anti-fascism” and that the term was “not as an indication that individuals themselves intended violence.” Under threat from the judge, prosecutors and witnesses have also had to avoid the use of the term “black bloc,” a reference to a protest tactic intended to anonymize individuals within the group.

But in her opening statement in the trial on Nov. 20, Kerkhoff repeatedly referred to a “sea of black masks” that caused destruction that day. The possession or wearing of black clothing has become a central aspect of the prosecution’s case. During one day of the trial, she held up a skull cap featuring an image of a skull that was seized from defendant Christina Simmons, a 20-year-old from Maryland who offered snacks from her backpack to officers who processed her, according to her defense attorney.

Jurors have heard from numerous business owners and employees who had their property damaged by members of the group that day. They’ve also heard from numerous police officers about the chaos they encountered, including an officer injured as he tried to apprehend an individual who threw a patio chair at his colleague.

What jurors haven’t heard, and prosecutors don’t intend to offer, is evidence that any of the six individuals currently on trial ― Macchio, Simmons, Jennifer Armento, Oliver Harris, Brittne Lawson and Alexei Wood ― actually engaged in any property damage or violence. Under the government’s theory of the case, in which anyone arrested in the group is part of a conspiracy and is responsible for any actions taken by others, the lack of individualized wrongdoing doesn’t matter.

Prosecutors have charged all six with eight charges, including six felonies. If convicted, they’d be exposed to a potential maximum sentence of more than 60 years in federal prison (though such an extreme sentence is extraordinarily unlikely).

“Each of them made a choice, and each of them played a role,” Kerkhoff told jurors in her opening statement. “You don’t personally have to be the one who breaks the window to be guilty of rioting.”

Kerkhoff, who is leading the prosecution, works for the U.S. Attorney for the District of Columbia, one of 94 U.S. attorney’s offices within the Justice Department. The U.S. attorney’s office in the nation’s capital is unique in that it prosecutes both federal crimes and local crimes that would normally be handled by a local prosecutor, who are typically elected. The office in D.C. is currently headed by a Trump appointee named Jessie Liu, though the cases unfolded until September under former acting U.S. Attorney Channing Phillips, a holdover from the Obama administration who is close with former Attorney General Eric Holder.

At the moment, there’s no way to ascribe the handling of these prosecutions to Trump political appointees with any degree of certainty. But it’s certainly worth considering that Trump, who branded himself as the law-and-order candidate, had vowed to “end” the “anti-police atmosphere” in America and has made his feelings about protesters on the left well known.

The White House website, updated on the day of the inauguration, says the Trump administration would not “make life more comfortable for the rioter, the looter, or the violent disrupter.” More recently, after the deadly August attack in Charlottesville, Virginia, during a white supremacist rally, the president has talked about the “advent of antifa” and compared the loosely-organized anti-fascist movement to actual neo-Nazis.

The Trump administration’s charging policy could have also had an impact on the handling of the cases. Attorney General Jeff Sessions, who has spoken out about his belief that free speech is under attack on college campuses, ordered federal prosecutors in May to “charge and pursue the most serious, readily provable offense” possible.

Kerkhoff and her colleague, Assistant U.S. Attorney Rizwan Qureshi, have presented jurors with a plethora of evidence from Jan. 20: surveillance videos, aerial footage, body cam video, data from all of the cellphones they seized, and even a livestream of the entire march that was shot by Wood, photographer among the defendants.

Over and over again, jurors have seen individuals clad in black destroying property during the march. In lengthy and at times tedious presentations, they’ve used videos, screenshots, maps and PowerPoint presentations to prove that the defendants were, in fact, present at the march. The not-so-implicit message to the jury: Someone needed to be held accountable for the damage inflicted that day.

The backdrop of the aggressive charges against so many demonstrators is that law enforcement officials in D.C., home to frequent protests due to its status as the nation’s capital, have taken a relatively progressive approach to policing demonstrations in recent years following lawsuits over their past conduct. Ahead of the inauguration, demonstration organizers discussed their perceptions of the restrictions on police, with one podcast played for jurors referring to D.C. police as “trained little piggies” who had been sued into a “state of fear.”

The District of Columbia does have rules that officers are supposed to follow when policing a First Amendment demonstration, and defense attorneys have zeroed in on the inconsistencies between what police are supposed to do and what they actually did.

Did they issue a warning to disperse, as required? “We didn’t give any dispersal orders,” testified Commander Keith Deville. “We weren’t required to tell them, ‘stop rioting.’”

Deville, who oversaw the law enforcement response to downtown demonstrations on Jan. 20, testified that he believed Metropolitan Police Department officers showed “enormous restraint” in their handling of the demonstrations. But defense attorneys played a number of clips that appeared to show officers casually deploying pepper spray, even on individuals who had their backs turned to the officers and were walking away. They also played clips that showed officers roughly handling individuals who weren’t engaged in any wrongdoing, including video that showed a legal observer getting blindsided with a shove from behind.

In one instance, Deville testified he couldn’t say why an officer shoved a woman with a baton from behind, but said the technique was proper. “There were two hands on it,” he said. “They weren’t bludgeoning somebody.” In another instance, he said he was “not sure what that deployment was for” when confronted with a video of an officer casually spraying people. “I don’t know what their intention was,” Deville said about another clip that appeared to show improper use of pepper spray.

Among D.C. elected officials, questions about how police handled the demonstrations has been a matter of controversy. The D.C. City Council has budgeted $150,000 to investigate how police dealt with the unrest that day. There’s also an outstanding ACLU lawsuit, and Deville admitted that he believes “criminal convictions in this case would perhaps limit our civil liability in the matter.”

In a separate tense exchange, a defense attorney questioned Deville about past allegations that he had displayed bias toward some minority groups.

Deville admitted repeating a conversation he once had with another officer about the Holocaust Museum road being named after Raoul Wallenberg, who has been credited with saving the lives of tens of thousands of Jews during the Nazi occupation of Hungary. The other officer had referred to Wallenberg as “the one that got away,” a comment Deville apparently repeated over the years. He called it a “very morose comment.” But Deville testified that he was not biased against Jewish people.

Deville also denied that he was biased against gay people despite allegedly once warning his colleagues to watch what they said when a gay officer joined their unit. And Deville further said that he was not biased against transgender people, despite once complaining that he had to call a transgender women he’d worked with for four years “Jessica” instead of “Bill.” At the time, Deville said, he “was still trying get my head around the change,” but he was not complaining that he had to call her Jessica. He was disciplined by the department for the comment.

The prosecution is expected to wrap up their case on Monday, and the defense will likely take over the rest of the week. The jury may begin deliberations sometime next week.

Even if none of these six defendants are convicted, the legal process on its own will still have proven to be a significant form of punishment, with the defendants from various parts of the country essentially moving to D.C. for the duration of the trial.

While the defendants have, for the most part, been reluctant to speak with the handful of reporters who have sporadically covered the trial over the past few weeks, Elizabeth Lagesse was willing to chat. Sitting in a courtroom taking careful, copious notes, it’d be easy to mistake her for a reporter. But Lagesse is actually a co-defendant, facing her own trial in July with a separate group of individuals on several felony charges in connection with her own Inauguration Day arrest.

Lagesse, a former John Hopkins University graduate student who had been planning to move to California and pursue work in the tech sector, said her life has essentially been put on hold as she fights off felony charges that could jeopardize her future. She and her fiancé, who was also arrested that day, have moved to D.C. to defray the cost of traveling back and forth from Baltimore for hearings. They’ve been living on his salary alone, not necessarily an easy feat in the city, and are now committed to a year lease.

Prosecutors still have the cell phone they seized from her that day,

“We finally saved up and ordered a new phone,” Lagesse said. “But he’s been using like a broken, not that great phone. I got one awhile back that, you know, works. It has been a really big burden. We’ve had to coordinate, like, whose phone works today?” She says prosecutors were not able to get anything off of either of their phones because they were encrypted iPhones.

Lagesse, who wrote an op-ed for The New York Times about her experience and is part of an ACLU lawsuit against D.C. police over their conduct that day, says Jan. 20 was the first time she’d ever been arrested. This is also the first time she’s spent significant time inside a courtroom.

She called the process “incredibly frustrating” and scary. “One person makes a decision, and it can disrupt 200 people’s lives for more than a year. It just seems nuts,” Lagesse said.

But it’s also been kind of fascinating for her.

“Lawyers have told me that they never get to hear the whole case before they start a trial, so it’s kind of an amazing opportunity. You get to watch a do-over trial,” Lagesse said. “It just proves I can nerd out about anything.”

Lagesse, who grew up in a conservative family living in northern California, said her family of Trump supporters had a tough time accepting that she was actually facing several felony charges.

“It’s hard for a lot of people to believe that this is actually happening, because it is insane. I get that a lot,” Lagesse said. “This is happening. It’s every bit as crazy as it looks. No, it’s not just going to go away.”

The partner of defendant Brittne Lawson, a 27-year-old nurse from Pittsburgh, told HuffPost that she had to quit her job because there was no way to adjust her schedule to accommodate a trial that will likely stretch on for more than a month. “The trial is for sure longer than all of Brit’s potential vacation time for the whole year,” Lawson’s partner, who requested to be identified only by his first name of Jeff, said. “This is a full-time job.”

Lawson has been able to get housing in Washington during the trial though the Dead City Legal Posse, an organization formed to support the defendants shortly after their mass arrest.

“Frankly, when you’re going through something really stressful like this, you want a quiet space that is your own, that feels safe,” Jeff said. “And instead you’re like sleeping on somebody’s couch.”

Jeff said he believes that people from across the political spectrum should be able to recognize the threat of the aggressive prosecution, but said that even some members of their extended families had bought into the idea of cracking down on protests.

“You see the divisions within the U.S., where there’s some people in our extended family who are like, ‘Oh, you should be in jail forever for someone else in a protest you were at breaking windows,’” Jeff said.

Defense attorneys will be calling several witnesses this week, and several of the defendants may take the stand in their own defense. Wood, the photographer on trial, will likely explain to the jury why he had a press pass in another individual’s name.

The six defendants’ attorneys, who outnumber the actual jury, will likely also raise First Amendment concerns and say that police made no effort to differentiate between those who were exercising their rights and those who were causing destruction.

Steven McCool, who is representing defendant Harris, told the judge outside of the presence of the jury last week that he’d be requesting a jury instruction on the First Amendment. What kind of jury instruction, Judge Lynn Leibovitz wondered, one that said we “like it a lot?”

“I wish we liked it more,” replied McCool, a former federal prosecutor. “Apparently we don’t.”