Judge Finds J20 Prosecutors Failed To Disclose Exculpatory Evidence, Mulls Sanctions

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Above Photo: Elvert Barnes Photography /(CC BY-SA 2.0)

The prosecution in the J20 case was dealt another major setback today as Chief Judge Robert Morin found that they failed to disclose to the defense parts of an undercover video containing clearly exculpatory evidence. An edited version of the video was part of the prosecution’s case-in-chief during the first J20 trial and was expected to be so in an upcoming trial. Now, with the prosecution facing sanctions, there are questions as to whether they will be allowed to show the video at all.

Yesterday, attorneys for a group of J20 defendants slated to go on trial in June filed a motion alleging the prosecution withheld exculpatory evidence. Under what is commonly known as the Brady Rule, it is a violation of a defendant’s constitutional right to due process for the prosecution to be aware of such evidence and not turn it over to the defense. According to reporters from Unicorn Riot, who were present for today’s motions hearing, Judge Morin has ruled that the US Attorney’s Office has committed a Brady violation and has given them a week to come up with arguments as to why they shouldn’t face sanctions.

The Brady violation stems from undercover video taken by a rightwing infiltrator with Project Veritas. In addition to law enforcement infiltration, the rightwing group, which has both a reputation for dishonesty and a clear disdain for leftwing protesters,  sent in an undercover operative to covertly film a DisruptJ20 planning meeting.

The prosecution had entered into evidence during the first trial an edited video version of the video. According to the prosecution’s repeated representations, the only edits they made to the video were to remove the identity of the rightwing infiltrator and the police infiltrator. Assistant US Attorney Jennifer Kerkhoff claimed before a judge that the removed footage consisted of the infiltrator putting on the button camera in a bathroom mirror. But attorneys for defendants pointed out that was impossible based on the footage. The judge granted the defense the right to see the full, unedited video.

On the unedited video the infiltrator can heard telling someone, “I was talking with one of the organizers from the IWW and I don’t think they know anything about any of the upper echelon stuff.” This runs in contrast to the prosecution’s narrative about the defendants being fully abreast of a conspiracy.

With a judge ruling the prosecution committed a Brady violation, questions remain about what the next steps will be. The defense has asked for the charges to be dismissed completely.  Alternatively, they have asked for the Project Veritas video to be suppressed. Judge Morin today hinted that he was leaning towards suppressing the Project Veritas video, though a hearing on the matter will be held next Thursday. Given that the June 5 trial is of the alleged “organizers” of the J20 protest, at least one of which was not even present during the protest march itself, suppressing the video would be a major blow to the prosecution.

Additionally today, Judge Morin granted the prosecution’s request to admit an expert witness FBI agent Christina Williams whose main claim to expertise is that she read several widely available books, including The Antifa Handbook. As The Intercept reported,

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.”

In light of these developments, Defending Rights & Dissent reiterates it call for the remaining charges to be dropped and for the lead prosecutor, Assistant US Attorney Jennifer Kerkhoff, to resign.

Correction: An earlier version of this article stated the defendants were slated to go on trial starting June 6. The trial is scheduled to start June 5.