In Major Victory for First Amendment Rights, J20 Protesters Acquitted on All Counts

By Alan Pyke, ThinkProgress

21 December 17

The acquittals cover just six of the hundreds of marchers facing guilt-by-association felonies.

one of the six men and women facing felony charges tied to an anti-Trump Inauguration Day protest committed a crime, jurors decided Thursday.

The six defendants had faced seven charges each. The jury returned 42 separate not-guilty verdicts.

The charges — conspiracy to riot, engaging in a riot, and five counts of criminal property destruction — came despite the government’s acknowledgement that it has no evidence any of these half-dozen people engaged in violent personal action that day. It was in effect a legal argument they were as guilty as those who had actually smashed a window, because they chose to show up in black and stay with the group as it moved through the city.

The verdict resolves only the first handful of cases in the sweeping felony prosecutions of black-clad marchers rounded up in downtown Washington, D.C., last January. Hundreds more face similar charges.

Jurors deliberated for just a little over one full workday, in the end. They were sent back to begin their work on Monday afternoon, worked the full day Tuesday, then got Wednesday off because one of them had called in sick. They announced their decision before lunchtime on Thursday.

The prosecution had sent them back with an immense amount of information, including hours and hours of videos from Inauguration Day. The government put special care into streamlining that pile of footage, crafting special PowerPoint presentations for each defendant. Jurors were instructed in how to use the presentations — a map of the group’s route overlaid with hyperlinks to slow-mo video highlights that allegedly captured a given defendant’s movements and actions throughout the march.

From PowerPoint to basic Windows errors, technology and its glitches played an outsized role throughout the trial. Despite taking the unprecedented step of charging almost everyone detained as though they’d committed property crimes themselves, the government still has to give jurors specific evidence of individual activity. Video clips, edited to within an inch of their life and strung together with others to give context, were the soul of the government’s case.

But at its heart, this case is about civil rights, civil disobedience, and the line between being present at a crime and being complicit in it. One defense attorney compared the government’s case here to prosecuting everyone who happened to be wearing the same jersey at a football game because one group of fans in matching garb started a fight.

“The law makes clear that you can be present while others are rioting, and you don’t have to leave,” Steve McCool, who defended Oliver Harris in the case, said in his closing argument. “Think about where we would be if they could simply call protesters criminals.”

McCool also reminded jurors of evidence of political bias among some key police officers involved both in managing events on Inauguration Day and in investigating the hundreds arrested that afternoon. Key video in the case was provided by James O’Keefe’s notoriously dishonest Project Veritas group, prompting McCool to invoke the specter of right-wing revenge against left-wing anti-Trump protesters.

“Protesters have the right to protect their identity from extremists,” McCool said, directly engaging with the language prosecutors have used repeatedly. The lead government lawyer in the case has invoked a “sea of black masks” on the march in downtown D.C. that morning, and argued that willful, continued presence among that sea as property destruction unfolded is legally the same as conspiring to riot, rioting, and smashing windows.

“You can be a journalist, and riot. You can be a medic, and riot. You can be expressing your First Amendment views, and riot,” Assistant U.S. Attorney Jennifer Kerkhoff said in her closing argument. She asked jurors to “protect the First Amendment by not allowing it to be used as a mask for their crimes.”

Jurors eventually rebuked Kerkhoff’s argument that a given marcher’s continued presence with the group long after individual riotous episodes made them co-conspirators and fully liable to the damage caused at the march’s edge.