First J20 defendants not guilty!
December 21, 2017 10:38 AM   Subscribe

The first set #J20 defendants were just found not guilty on all charges, as reported by Unicorn Riot on Twitter. NOT GUILTY immediately began trending on Twitter, and I've heard personally about whooping and celebratory yelling in a few otherwise-dignified office settings around the country. WNYC previously wrote about what's at stake, but Unicorn Riot probably has the most complete coverage from over the course of the trial. Defendant Alexei Wood's comment may be my favorite hot take. Don't forget, though, that nearly 200 defendants still have trials for the same charges pending.

In case you missed this, the state mass-arrested inauguration protesters on January 20th, and charged them with 70+ years worth of felony criminal conspiracy and felony rioting for being in the vicinity of some broken windows. The prosecutor's position was not that anyone arrested had anything to do with the vandalism, but that by being near it, at a protest, they were criminally liable.
posted by moink (33 comments total) 33 users marked this as a favorite
 
Unicorn Riot:

“It was not a close call. The prosecution admitted the morning of day one that they would present no evidence that any of the defendants committed any acts of violence or any vandalism.

From that point, before the defense ever uttered a sound, it was clear to me that ultimately we would find everyone not guilty. And while there was a great deal of careful discussion among the jurors, it ultimately at no point was … did it seem even possible that a guilty verdict would come down.

This was not close.” – Steve, a juror in the J20 trials

posted by Artw at 10:42 AM on December 21, 2017 [28 favorites]


you can't ruin EVERYTHING, 2017!!!! in your face!!!!!!
posted by burgerrr at 10:42 AM on December 21, 2017 [16 favorites]


Soooooo what do you need to do to get the whole “malicious prosecution” ball rolling?

Or should we just get really festive guillotines
posted by schadenfrau at 10:44 AM on December 21, 2017 [47 favorites]


The bizarre theories of the prosecution were so extreme that I found them baffling- like, surely arguing that having first aid supplies with you or knowing what "kettling" is makes you a violent criminal is so far beyond the boundaries of sense that nobody would seriously and honestly make those arguments out loud in a court, right? They characterized expecting the police to, as they are legally mandated, issue an order to disperse before arresting people for not dispersing as "privileged" and "entitled" and in their closing arguments attempted to instruct the jury to disregard the judge's instructions regarding reasonable doubt (which the judge immediately interrupted and countermanded). Surely there's some kind of sanction for such obvious contempt for the law as the prosecution consistently displayed.

But no, no punishment for it. Just the loss on their record, and another chance to try the rest of the defendants on the same theory of criminal culpability in the hopes of finding a judge and jury who will give it to them.
posted by Pope Guilty at 10:45 AM on December 21, 2017 [26 favorites]


I can't figure out who thought that a D.C. jury was going to convict these people.
posted by ArbitraryAndCapricious at 10:48 AM on December 21, 2017 [2 favorites]


"Surely there's some kind of sanction for such obvious contempt for the law as the prosecution consistently displayed."

If it were a civil case instead of a criminal one, a motion could have been made under Federal Rule of Civil Procedure 11. That's the one that allows a judge to "sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments that have no evidentiary support." DC Superior Court counts as a Federal Court on such matters, but there is no equivalent to Rule 11 in federal criminal law (and only occasionally at the state level), and the Supremes have given prosecutors near-total immunity for malfeasance. So unfortunately, no, there's essentially no disincentive to prevent the prosecutors from raping the spirit of the law.
posted by mystyk at 11:04 AM on December 21, 2017 [5 favorites]


One of my old friends from Quaker meeting, now a community organizer innDC, was rounded up and prosecuted for J20. Breathing such a big sigh of relief.
posted by WidgetAlley at 11:18 AM on December 21, 2017 [5 favorites]


I can't figure out who thought that a D.C. jury was going to convict these people.

The prosecution knew what it was doing and most likely assumed a jury would acquit. The plan was simply to get the protestors off the street. Mission accomplished. After that, they really didn't care what a jury would do.
posted by Thorzdad at 11:18 AM on December 21, 2017 [12 favorites]


Private sector: SLAPP (Strategic Lawsuit Against Public Participation) ->

Public sector: SPAPP (Strategic Prosecution Against Public Protest)
posted by lalochezia at 11:21 AM on December 21, 2017 [9 favorites]


This is good news. Thank you DC jury and reasonable judge.

But I worry how the same case would fare under one of the 19 judges already appointed by Trump to the Federal judiciary. Many that were confirmed are as bad or worse than the one who famously did not.
posted by jetsetsc at 11:36 AM on December 21, 2017 [3 favorites]


From 2 weeks ago, Molly Crabapple's Dystopian Sketches from Inside the Inauguration Protesters' Trial.
posted by Catblack at 11:37 AM on December 21, 2017 [6 favorites]


One of the more controversial videos viewed by the jury was submitted to police from Project Veritas, an organization that uses secret recordings to target the mainstream news media and left-leaning groups. A Veritas member secretly recorded a Jan. 8 DisruptJ20 planning meeting in the basement of a D.C. church.

Yeah, when I want justice, I definitely go to the people known for their selectively edited hidden-camera videos.
posted by shapes that haunt the dusk at 11:40 AM on December 21, 2017 [11 favorites]


The point isn't a conviction, though of course they would be happy if they could make that quickstep to fascism, the point is to suppress protest. Because most people who attend legal protests who do not have the time or money to risk this kind of prosecution.
posted by tavella at 11:49 AM on December 21, 2017 [28 favorites]


you can't ruin EVERYTHING, 2017!!!! in your face!!!!!!

Auuugh why would you even see that? There's still 10 days left! And... oh crap.

*nervously watches 2018 push 2017 out of the way and hand its beer to someone*
posted by loquacious at 12:03 PM on December 21, 2017 [12 favorites]


This is absolutely an attempt to suppress protests. Knowing that the police can arrest you and the government can subject you to trumped-up charges would give many people pause, even if they knew beyond any doubt that they would be acquitted.

I mean look, these people had to suffer though this for an entire year even though all parties knew none of the charges would stick. I'm thankful that no one was convicted, but just having to go to court is punishment enough for many Americans. I personally would absolutely think twice about protesting if I thought I might be subjected to this, I have a wife and kids to think about.

This is sad, and terrible, and I wish someone could find a remedy for this blatant abuse of prosecutorial power.
posted by Mr.Encyclopedia at 12:16 PM on December 21, 2017 [24 favorites]


Soooooo what do you need to do to get the whole “malicious prosecution” ball rolling?

Nothing stopping anyone from figuring out the home state where these people hold bar cards and filing a bar grievance. For HaHa's copy Lloyd's of London and then a few of the mutual insurance firms for the states involved.

From the ABA
Rule 3.1: Meritorious Claims & Contentions
Advocate
Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law. A lawyer for the defendant in a criminal proceeding, or the respondent in a proceeding that could result in incarceration, may nevertheless so defend the proceeding as to require that every element of the case be established.




What's the point of rules if no one follow's 'em eh governor? (The model rules for the Prosecutor FYI.)
posted by rough ashlar at 12:45 PM on December 21, 2017 [8 favorites]


Man, this quote in The Independent: "You don't personally have to be the one who breaks the window to be guilty of rioting." Thoughtcrime, basically.
posted by limeonaire at 12:48 PM on December 21, 2017 [1 favorite]


... the government can subject you to trumped-up charges ...

I see what you did there.
posted by ZenMasterThis at 12:50 PM on December 21, 2017 [6 favorites]


Thank you DC jury and reasonable judge.

Whoa whoa whoa. Let's not get ahead of ourselves. This judge didn't only side with the prosecution on whether or not doing journalism is equivalent to rioting. I can't seem to find all the other things I read about the judge and her comments during the trial but here are a few (below). I just don't think she deserves to be praised as "reasonable" in the face of such unreasonableness.

Wood’s livestream narration while reporting on the anti-capitalist anti-fascist march has been referred to as “commentary in furtherance of the conspiracy” by both Judge Lynn Leibovitz and the prosecuting Assistant US Attorney Jennifer Kerkhoff.UR

One defense lawyer requested that the court provide a written record of Judge Leibovitz’s oral instructions, as they were unable to attend in person each of the many hearings potentially relevant to their client’s defense. Judge Leibovitz explicitly refused, saying, “That’s not happening. I’m not doing that.”UR

One lawyer showed the judge another snippet of video from the closing moments of the march, in which defendant Brittne Lawson can be seen walking as police deploy pepper spray and shout “Move! Move!” from behind her. The aim was to show that Lawson, a trained street medic who marched in a white helmet marked with a red cross, could not have simply departed the scene at that time. But the judge was unmoved. “So why not just be done at the bus shelter?” she said. “This is too much for me, just stop.” [...] “Once a riot is occurring and she is a medic tending to people engaged in a riot, isn’t she aiding and abetting?"ThinkProgress
posted by moink at 1:18 PM on December 21, 2017 [13 favorites]


Wow. I take that back. Thanks jury.
posted by jetsetsc at 1:28 PM on December 21, 2017 [9 favorites]


Wow. I take that back. Thanks jury.

And the action of judges and DAs like this case is how the Fully informed jury association has oxygen to live.

Don't think of jury time as a burden to be avoided. Get on the jury and use your judgement.
posted by rough ashlar at 1:35 PM on December 21, 2017 [20 favorites]


Good grief. I survived McCarthyism. I hope you all survive Trumpism.
posted by notreally at 3:46 PM on December 21, 2017 [9 favorites]


But I worry how the same case would fare under one of the 19 judges already appointed by Trump to the Federal judiciary. Many that were confirmed are as bad or worse than the one who famously did not.

America may yet get its own Sophie Scholl.
posted by acb at 4:22 PM on December 21, 2017 [1 favorite]


"The defense has talked to you a little bit about reasonable doubt. You're going to get an instruction from the judge," Kerkhoff told jurors before they went into deliberations. "And you can tell it's clearly written by a bunch of lawyers. It doesn't mean a whole lot."

The prosecutor literally told the jury to disregard the reasonable doubt standard. How is that not grounds for disbarment?
posted by dirigibleman at 4:52 PM on December 21, 2017 [9 favorites]


The prosecutor literally told the jury to disregard the reasonable doubt standard. How is that not grounds for disbarment?

Roy Moore, who was removed from his Supreme court position for multiple ethical violations was not disbarred.

Also:
A USA Today investigation found that only one federal prosecutor has been disbarred, even temporarily, for misconduct in the past 12 years despite 201 documented cases of violated laws or ethics rules.
TLDR: Prosecutors are above the law.
posted by el io at 5:35 PM on December 21, 2017 [5 favorites]


TLDR: Prosecutors are above the law.

Don't forget Judges. The only 'court watching' that goes on is in high profile cases. Court staff see/hear all kinds of violations and what are they gonna do? Turn 'em in and lose their job? Or get stuck with a WORSE boss?
posted by rough ashlar at 5:57 PM on December 21, 2017 [3 favorites]


Another example of prosecutorial, er, "enthusiasm", from 2012 and the trial of Tarek Mehanna:
...in his opening statement to the jury one prosecutor suggested that “it’s not illegal to watch something on the television. It is illegal, however, to watch something in order to cultivate your desire, your ideology.” In other words, viewing perfectly legal material can become a crime with nothing other than a change of heart. When it comes to prosecuting speech as support for terrorism, it’s the thought that counts.
Like seriously, the illegal watching of videos. Emphasis mine. Mehanna was sentenced to 17 years in prison, though technically for translating an Al Qaeda video into English rather than just for watching one.
posted by XMLicious at 7:43 PM on December 21, 2017 [3 favorites]


It is illegal, however, to watch something in order to cultivate your desire, your ideology.”

I am reminded of f-bombs and the 2015 edition of the Risky Business podcast with the lawyer who touched the fundraiser for Marcus Hutchens.

In that podcast the attorney expressed concern about a proposed change to US law that would have made 'association' with a criminal act a crime.

Think about creating a software tool (say audio recorder) that gets used in the crime of recording someone in a 2 party consent state. It is JUST an audio recorder and can be used for non-criminal purposes.

Then there was the fbomb project by not-yet lawyer shown off at BlackHat. The code releases never did seem to happen. Now, did he decide not to once other lawyers pointed out the law and proposed laws?

And what happens if you create code that is legal today and published today on, say GitHub. Lets say the code BECOMES illegal tomorrow. Is the fact I can download it next week 'publication in the now'? What if someone does a fork or the fork becomes the illegal version. What happens if the 1st Federal district says its legal but the 9th says it is not?
posted by rough ashlar at 8:47 PM on December 21, 2017 [2 favorites]


What happens if the 1st Federal district says its legal but the 9th says it is not?

You hope SCOTUS hasn't been packed full of brownshirts.
posted by Thorzdad at 7:34 AM on December 22, 2017 [3 favorites]


"Think about creating a software tool (say audio recorder) that gets used in the crime of recording someone in a 2 party consent state. It is JUST an audio recorder and can be used for non-criminal purposes."

Ostensibly, the creation of software for neutral purposes is protected, even if other potential uses are violations, but the reverse (code created for nefarious uses that also has legal uses) is not. In other words, intention matters. That, however, also creates some of the problem, as the prosecutor can go quite far in trying to frame what your intentions were in whatever way suits them best, including flat-out lying.

"And what happens if you create code that is legal today and published today on, say GitHub. Lets say the code BECOMES illegal tomorrow. Is the fact I can download it next week 'publication in the now'? What if someone does a fork or the fork becomes the illegal version."

Ok, let's narrow it down. Let's say that there's software that cracks some DMCA protection, and it for whatever reason cannot fit under any fair-use standard. In fact, let's say that it *does* fit, but then the law is changed so as to narrow the fair use exception to exclude it.

If you continue to host or knowingly make available (e.g. not remove from your own GitHub account) then you could be liable for future uses. If you don't, then even if someone forks/copies the code, you can't be held liable. The constitution specifically prohibits laws that retroactively punish things that were not criminal at the time they were done ("ex post facto" laws) in Art. 1 § 9 (for the feds) and § 10 (for the states), and that is one that even the most authoritarian judges and prosecutors would well-know to heed.
posted by mystyk at 7:47 AM on December 22, 2017


"The defense has talked to you a little bit about reasonable doubt. You're going to get an instruction from the judge," Kerkhoff told jurors before they went into deliberations. "And you can tell it's clearly written by a bunch of lawyers. It doesn't mean a whole lot."

That darned old law - it was written by lawyers! Me, I'm just a simple country blackshirt, and I'm confused by fancy talk about bills of attainder and habeas corpus. That's not even English!
posted by thelonius at 7:58 AM on December 22, 2017 [4 favorites]


"Now, did he decide not to once other lawyers pointed out the law and proposed laws?"

Betteridge would suggest not.
posted by el io at 9:20 AM on December 22, 2017


That darned old law - it was written by lawyers! Me, I'm just a simple country blackshirt, and I'm confused by fancy talk about bills of attainder and habeas corpus. That's not even English!

I know you jest, but, sadly, it's not beyond possibility that that sort of language would actually work on some members of a given jury.
posted by Thorzdad at 11:18 AM on December 22, 2017 [1 favorite]


« Older how America moves its homeless   |   *cue palm-muted wah-wah guitar and reverb* Newer »


This thread has been archived and is closed to new comments