Above Photo: From Unicornriot.ninja
Washington, DC – The second trial of protesters mass-arrested at an ‘antifascist, anti-capitalist’ march during President Trump’s inauguration on January 20 (J20), 2017 has begun in DC Superior Court. After two days of jury selection, the jury was empaneled Tuesday afternoon, and opening arguments began around 10:30 AM on Wednesday, May 16.
In her opening statements, Assistant US Attorney Jennifer Kerkhoff relied on the same rhetorical devices she used in the first trial, giving dramatic descriptions of property damage and invoking the image of a mass of protesters in a “sea of black.”
As in the first trial, she introduced a series of large map boards indicating where property damage took place along the route of the protest march, a piece of evidence that also figured heavily in the previous trial.
In one of the only deviations from what has otherwise been a re-run of the first trial, Kerkhoff introduced a series of images of each of the four defendants, claiming to have identified three of them as involved in destructive acts based on correlating their masks and clothing. A fourth defendant, who the government does not allege destroyed any property, is still facing charges because prosecutors insist he “moved with the group” and received messages regarding protest planning prior to January 20.
Most of the prosecution’s rhetoric echoes the first trial in their attempts to define “the group itself” as a threat by virtue of the “collective, coordinated action” involved in its planning.
Defense attorneys pushed back on the government’s claims in their own opening statements, disputing the claim that their clients had been personally identified beyond a reasonable doubt. They argued that prosecutors had very little to show for over a year of intensive investigation and were “desperate to pin” the damage “on someone, anyone.”
“The government has hours and hours of footage” one defendant’s lawyer told jurors. “All they’ll show you are grainy photos..and compilations they have stitched together…the government’s case is to make you think thirty minutes lasted two weeks, by bombarding you with videos.” Counsel for another protester defendant insisted that “at it’s heart, the government’s case is guilt by association.”
Opening arguments from both sides finished after a few hours, at which point the government began calling prosecution witnesses, a process expected to take several days. So far, the court has heard testimony from two DC Metropolitan Police (MPD) officials – Detective Robert Ranck and Officer Ashley Anderson.
Detective Ranck, who was working as a plainclothes investigator for the DC Police intelligence unit on Inauguration Day, repeated the same testimony he gave at the first trial last winter. The prosecution walked him through a lengthy description of what he saw while trailing the protest march on foot for most of its duration. When cross-examined by the defense, Ranck clarified that he only saw the “aftermath” of property being damaged and could not identify any individuals who had been involved.
Officer Ashley Anderson also repeated the same testimony she gave in the first trial, recounting her day riding a mountain bike as part of a Civil Disturbance Unit (CDU) platoon. Anderson’s testimony tracked some of the same phrases used by the prosecution, referring to “the group” “helping each other”and “yelling commands.”
Anderson also made several comments in which she attempted to imply that anti-Trump protesters may have used explosives on Inauguration Day. Like Ranck, none of Anderson’s testimony involved any of the defendants personally, but rather served to describe the general series of events that day.
The four defendants are being tried before Judge Kimberley Knowles, who is new to the J20 case. Initial court proceedings following the mass arrest, as well as the first trial, had previously been overseen by Judge Lynn Leibovitz, known as “DC’s toughest judge”, who was generally favorable to the more controversial aspects of the prosecution.
After the first J20 trial wrapped up in late December, Leibovitz switched to working in family court. Motions hearings have since been overseen by DC Superior Court Chief Judge Robert Morin. Morin moved to limit several of the government’s more extreme requests for the case, such as admitting testimony from a secret witness using a false identity.
The current trial group in Judge Knowles’ court was reduced from five defendants to four after a judge ruled that prosecutors had insufficient evidence to include one defendant in the alleged conspiracy. While charges against the fifth defendant have not been dismissed, Judge Morin ordered the government to review other cases for any other defendants against whom their case was similarly lacking.
The government is reportedly expected to produce specific evidence against the current defendants, but the nature of their case still remains uncertain. The first trial was defined by the lack of particularized evidence against any defendant, who the government sought to convict based on their “mere presence“ at the protest where windows were broken.
Initially, 214 people had been indicted and faced a multitude of blanket felony and misdemeanor charges based on the prosecution’s theory that everyone present at the march was legally responsible for any crimes which took place.
The US Attorney’s DC office suffered a blow to its dragnet case last December 2017, when the first trial ended in full acquittals for all 6 defendants, which had included two medics and a journalist. Weeks later the government dropped all charges against 129 people it had previously sought to imprison for over 60 years. 58 people are still facing charges stemming from arrests on Inauguration Day and scheduled to face trial this year.
The near-life sentence being threatened against protesters going to trial stands in stark contrast to those who have pled out. One defendant, reportedly among those who the government had more evidence against, was recently allowed to plea to a single misdemeanor and receive no jail time. Demonstrator Dane Powell, who pled guilty to breaking a window and throwing a brick at police, served four months in prison last year and has since been released.
In comparison, those still facing charges are looking at potential sentences of over 60 years. Based on the guilt-by-association theory used to justify the mass arrest, all remaining defendants still face eight charges: one felony count of inciting or urging to riot, five felony counts of destruction of property, and two misdemeanor counts for engaging in a riot and conspiracy to riot.
The prosecution is expected to continue to reuse many components of its performance from the first trial. The US Attorney’s Office thus far has in part relied on undercover video taken at an inauguration protest planning meeting by Project Veritas, a discredited far-right media group known for falsifying video evidence against its political opponents.
Most of the evidence in the case has been processed by MPD Detective Greggory Pemberton, a police union official who, in his testimony in the first trial, admitted falsifying overtime slips and tweeting right-wing anti-protest messages.
In opening statements, the defense made clear their intention to question Pemberton’s motives as a key witness, warning jurors that the Detective’s work in the case is influenced by his “loyalty to MPD and his union.” With the defense disputing the government’s claim to have identified some defendants as responsible for specific acts, and no eyewitnesses of the day’s events expected to identify any of the defendants, Pemberton’s months of watching videos for up to sixty hours a week may very well end up being the crux of the case.
Testimony from prosecution witnesses will resume on Thursday, May 16. Trial proceedings are expected to last through the rest of the month. Nine more inauguration trials are scheduled for this year, with the next one currently scheduled to begin on June 4.
Unicorn Riot will be covering the trial from inside the courtroom. Follow us on Twitter for near-real-time updates that will be posted whenever court is in recess. If you can, please donate to help us continue full-time trial reporting.