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#DropJ20 Podcast Update #4: The First Trial Ends

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Photo from Mic.com

As the first of many J20 conspiracy case trials draws to a close, we have a lot to catch you up on. Sorry for the delay with this update… it turns out that fighting state repression is exhausting.

First, a sliver of good news. On Wednesday, December 13th, during a hearing on a motion for judgement of aquittal, Judge Lynn Leibovitz  She stated that there was no evidence that any of these defendants were “leaders or organizers” but claimed that even simply yelling “stay together” or “keep moving” – normal utterances in a protest – could be reasonable proof of the charge. One less felony, but during the hearing, the judge maintained that all the other charges were reasonable within the law. While welcome news, the inciting a riot charge remains against 180 other defendants.

The complete lack of evidence to convict these defendants on the count of incitement under any interpretation of the law shows the prosecution’s commitment to aggressively pursuing all of these charges to the bitter end. As the judge explained that there was not even a shred of evidence for incitement, Kerkhoff continued to explain her theory that seemed to equate the legal basis for “engaging in a riot” with inciting until the judge wouldn’t hear anymore. Fighting this and all charges for the remaining defendants will require lots of sustained efforts of solidarity.

Now let’s get you caught up to speed. Since our last update, the police commander in charge of on-the-ground operations on J20 finished his testimony, followed bystatements by a smattering of cops. Most of these cops have blended together in our memories, because a cop is a cop is a cop. But there are some highlights to share, including more insight into the Metropolitan Police Department’s overt collusion with far-Right groups. There was even some overtly racist testimony from one particularly combative cop who could be described as not the shiniest baton in the weapons locker.

As you remember, Commander Keith Deville’s cross-examination was paused for the weekend at questions about his bias against Jewish people, queer people, and trans people. When his cross examination continued on Monday, December 4th, he admitted to being disciplined by the Internal Affairs Division because of disparaging remarks he made about a trans police officer. No one in attendance was surprised about how he minimized his transphobia or how he later claimed to have absolutely no bias against anyone.

The cross examination of Deville continued with more questions about bias against the protesters who attended the march that day. After the inauguration, he told the Internal Affairs Division that the police that day had acted with “enormous restraint.” On the one hand, he admitted that he could not say for certain that every single cop on the street demonstrated “enormous restraint” in every single act. How could he, when the jury was shown video after video of the cops dousing people with pepper spray and knocking them down with batons? On the other hand, he admitted that he was aware that the police have been sued for misconduct and abuse that occurred on J20. He also admitted that the MPD’s civil liability would be reduced if the prosecutor, Jennifer Kerkhoff, got convictions in these outlandish conspiracy trials.

Deville’s testimony attempted to do much more than just justify police abuses and massive police expenditures on Inauguration Day. He was adamant about describing the anticapitalist/antifascist march on J20 as a group that moved as a whole, acted as a whole, and reabsorbed people after they emerged to commit violent, criminal acts. This narrative of the march being a core group acting in concert, with a singular criminal purpose, could not have been articulated better by Kerkhoff herself. And of course the police commander’s testimony would do nothing aside from attempting to justify these politically motivated charges. After all, he knows exactly how much money is on the line if lawsuits about police abuse and brutality are successful.

After Deville finally got off the stand and stopped spewing his carefully crafted lies, a procession of cops took the stand to testify about various pieces of so-called evidence and to confirm through their testimony and body worn cameras that the defendants on trial were in fact arrested on J20. Much of this evidence included nefarious objects such as… backpacks, gloves, a “scarfy thing,” photographic equipment, and a medic kit worn around the waist like a fanny pack or utility belt.

Line cops speaking to the obvious seems like a pretty safe way to approach a trial, but it backfired on Kerkhoff when a racist, argumentative cop took the stand. Enter Michael Howden, the scooter squad cop. Howden gets the gold star for his overt racism being inversely proportionate to his intelligence. He spent much of his questioning by Kerkhoff explaining how he had accidentally failed to turn on his body worn camera because, you know, buttons are confusing. And since his body worn camera wasn’t on for the first 20 minutes or so, it failed to capture the moments when he was attacked first by a pole wielding protester and second by a spiked hammer that bounced off his body. Seems that Howden had some extremely bad luck when his camera was off, as no other cop on the streets that day reported suffering so many attacks. Fortunately for Howden – and according to his repeated testimony – he had sunglasses that helped protect him from these attacks.

Howden also testified that these magic sunglasses helped protect him from the pepperspray in the air that day. During cross examination, he was asked if he ever described other police officers’ use of pepper spray on J20 as “extremely wild,” as he had been sprayed by other cops. He denied saying this at first, but then this hilarious exchange happened…Defense attorney: “So you told that captain that the police were extremely wild with pepper spray that day?” Howden: “I said something about wild.” Defense attorney: “Would it help if we replayed the clip?” The clip meant a snipet of his body worn camera video. Howden then responded: “I mean, you can replay it if you’d like. But I think you’re taking something out of context.” Clearly, Officer Howden does not understand that body worn cameras ostensibly capture the context of the situations police are in and that the videos they take are, in fact, evidence.

Yet Howden’s comments did not stop at calling the wanton deployment of pepper spray that day “extremely wild.” He also boasted to another cop that kettling protesters on J20 was “like herding people at Barry Farms.” Barry Farms, in district 7, is a public housing project in a historically Black part of DC where the police have a reputation for being extremely abusive. Racist remarks from a cop are not surprising, of course. But what is surprising is that, among all the cops who helped kettle more than 200 people in the streets that day, this cop was one of the best that Kerkhoff could present to the jury.

And, lest we forget, there was also testimony from a rogue cowboy cop, Harrison Grubbs. His noteworthy contribution to keeping the streets safe on Inauguration Day was running his bicycle directly into a protester and subsequently falling off and fracturing his wrist. It turns out that human bodies can suffer injuries upon impact with concrete, which would be good for cops in general to understand since they’re so quick to throw people in the streets to the ground – or worse – to ensure “public safety.”

Detective Greggory Pemberton, the treasurer of Washington D.C.’s police union and the lead detective on the case, testified for a full four days this past week. Pemberton was assigned to the case on January 20th while defendants were still detained at 12th and L, despite that area being out of his usual jurisdiction. Pemberton testified that he’s been working overtime every week in order to watch hundreds of hours of video to identify every person who was arrested and their every action during the march, in what he claims is the biggest case of his career. His testimony primarily consisted of large poster board graphics for each defendant featuring chronological screenshots alleged to show their action during the march. Each screenshot was accompanied by a video montage to highlight each person’s conduct – which, for the most part, included such menacing acts as walking down the street and being kettled by the police with no option to leave. Often times the identification of defendants hinged on nothing more than a particular item that Permberton tracked, in one case, a regular water bottle in a black backpack. Pemberton wasn’t allowed to outwardly identify each defendant as he gave his presentation and it will be up the jury to decide if there is enough evidence to prove the people in the images are the current defendants beyond a reasonable doubt.

Cross examination of Pemberton revealed his alignment with various Alt-Right outlets and figures, including Breitbart News, the publication of the infamous Steve Bannon, and /pol/, a well-known white supremacist outlet. Pemberton also liked and retweeted several tweets that called Black Lives Matter activists liars and accused them of pushing false narratives about police killings of unarmed people of color, although there is plenty of evidence to the contrary in DC alone. Despite the judge claiming that BLM and the inauguration defendants “had nothing in common,” the defense showed footage of the marchers chanting “Black Lives Matter!” repeatedly, implying that Pemberton may have taken out his personal biases against the arrestees. This is especially suspect since members of Pemberton’s District 7 were disciplined last July for wearing t-shirts to court that featured a popular white supremacist symbol. After media outlets posted several questionable tweets from Pemberton’s union twitter, he locked his account in the middle of his testimony in an attempt to hide his bias.  However, Unicorn Riot was able to save and archive all his tweets before he locked it and they are now publicly available. When he’s not dodging questions to preserve the government’s narrative, Pemberton spends his time watching and following defendants in and out of court in a desperate attempt to find any scrap of information that might verify the prosecution’s ridiculous charges.

Other MPD testimony included that of investigator Robert Ranke, who was in plain clothes and embedded, along with at least 2 other cops, in the Anti-capitalist and anti-fascist march on January 20th. Ranke described the march in detail but again failed to speak to any particularized evidence on the current defendants. He admitted that there was an enormous amount of noise and between cheering, chanting, sirens and other chaos he could not differentiate between sounds or hear anything particular. Additionally Ranke said he stayed towards the back of the march and therefore couldn’t see most of the property damage occur, giving strength to the defense argument that it would be impossible for any one person to perceive everything that was going on. Eventually Ranke became so fearful of being hurt by the police, who didn’t know he was a cop at the time, that he scurried away from the group and the massive deluge of OC spray raining upon the protesters by identifiying himself as MPD and getting behind the police line. If only the rest of the protestors were lucky enough to have an easy out like Ranke, instead of being beaten and pepper sprayed as they were herded down the street by police.

Once the prosecution rested, the defense gave a very brief case that consisted of a handful of character witnesses. Since the onus is on the government to prove their case, the defense doesn’t need to call nearly as many witnesses, yet multiple people took the stand to attest to the general good nature of various defendants they know and work with, including one defendant’s boss: a nurse who has worked alongside the defendant with cancer patients. Kerkhoff repeatedly objected to the testimony, especially when the witness tried to explain how the defendant could calmly respond to aggressive or disoriented patients whose mental capacities are failing due to brain cancer or other instances of the defendant working with cancer patients.

Kerkhoff also tried to keep the witness from discussing how the defendant had to leave their job and dear patients in order to go to this circus of a trial. Upon cross examination, Kerkhoff became heated and aggressively tried to bully the witness into impossible yes or no questions, including if her opinion of her employee would change if she knew the defendant was in a group that broke windows on inauguration day.  “I am not quick to judge someone,” she calmly replied, “if there were a behavior that was concerning to me, I’d want to have a conversation with someone to understand more about it.” After this messy and overtly aggressive cross examination, kerkhoff only very briefly cross examined the other character witnesses, though she took the opportunity to limit favorable testimony for the defense as much as possible.

Following the government and defense cases, the hearing for the motion for judgement of aquittal began. While the hearing had the benefit of getting one of the charges dropped for these defendants, something almost unheard of in the courts since the judge is required to view the evidence in the light most favorable for the government when ruling, there were several concerning comments made by the judge in her explanation of why she wouldn’t drop the other charges. The judge agreed with Kerkhoff’s argument that for multiple city blocks before the final arrest at 12th and L, people were free to leave.  Despite police body cam video showing officers bragging about “herding people” and plenty of video showing police moving behind and beside the crowd spraying gallons of pepper spray, pushing people with batons and yelling, “move! move!,” over and over again.

In the government’s opinion, if people didn’t want to participate in the alleged riot, they should have stopped at that point. Apparently when cops yell “move” and you… move… you are aiding in a criminal conspiracy and willfully remaining in furtherance of a riot. According to Kerkhoff, the cops were trying to move around the crowd and by not moving out of the way, the defendants were willfully remaining. Again, never once did the MPD issue a dispersal order during the 33-minute-long march.

Despite the lack of a dispersal order, the prosecution remains committed to the idea that everyone present willfully chose to remain to “further the conspiracy to riot” after the first window broke. “Mere presence” becomes “affirmative conduct”, and the judge called the march a “swarm,” with “centripetal, gravitational force” that moved together.  On the video, it is pretty obvious it is just a crowd of people, generally moving together because they had nowhere else to go and the police were, in their own words, “herding them.”  In response to video evidence showing a defendant passing a broken window and very clearly not noticing it, the judge claimed that the “senses are 360 degrees” despite the countless videos and testimony depicting the chaos of the moment – sirens, yelling, chanting, as well as Ranke’s testimony that he himself couldn’t see much property damage happen, even though he was looking for it. This “affirmative conduct” is, in the court’s view, legally reasonable as “aiding and abetting” the alleged rioters and, under liability laws, even evidence for a reasonable juror to find medics, a live streamer, and any other protester wearing black guilty on all remaining charges.

Now that the government and defense have both rested their case, discussions about jury instructions and closing arguments have begun. Closing arguments will be wrapping up shortly with jury deliberation expected to begin next Monday. Keep an eye out for another podcast covering the closing arguments set to come out once all the arguments have been made!