by Sam Adler-Bell, The Intercept:
IT’S BEEN A BLEAK year for the 194 protesters, medics, and journalists facing multiple felony charges stemming from their arrest surrounding Donald Trump’s presidential inauguration on January 20, 2017. Vilified by much of the mainstream press and largely ignored by the liberal “Resistance” movement, the J20 defendants — as they’re collectively known — have huddled around each other and their tight network of supporters. On Friday, a jury began deliberations in the first J20 trial, of six defendants, on a raft of counts; a verdict could come as soon as Monday. Last Wednesday, however, there was a rare glimmer of hope: Before closing arguments, Judge Lynn Leibovitz of the D.C. Superior Court threw out the “inciting a riot” charge, a felony with a maximum ten year sentence.
Despite throwing out the incitement charges, Leibovitz declined to acquit the defendants on seven other charges, including five counts of felony property destruction, misdemeanor rioting, and misdemeanor conspiracy to riot. Those charges together carry a maximum sentence of 50 years in prison.
“It’s been a long month for these six defendants and their supporters. We’re nervous, obviously, but we’re resolute.”
“It’s been a long month for these six defendants and their supporters,” said Sam Menefee-Libey of the Dead City Legal Posse, a group that organizes support and advocates for the J20 defendants. “We’re nervous, obviously, but we’re resolute. And the feeling of solidarity amongst everyone is powerful.”
What the acquittal means for the remaining 188 defendants is not yet clear. Prosecutors may have stronger evidence of incitement against other protesters, especially those who planned the action or who issued directions during the march. (Some of the organizers will go on trial early next year.) But this first failure is indicative of a larger problem with the government’s case: a lack of individualized evidence against the majority of those arrested.
Leibovitz’s unusual decision to grant the defense’s motion for a judgment of acquittal is a testament to the paltriness of the prosecution’s case for “incitement.” Such motions are practically a formality in criminal proceedings; judges almost always defer to the jury to decide on the sufficiency of the facts. In this case, Leibovitz concluded that “no reasonable juror” could find the prosecution’s evidence sufficient to establish the charge of incitement. “None of [the defendants] engaged in conduct that amounted to urging others,” Leibovitz said.
The prosecution’s case is built around hours upon hours of video captured by police body cameras, reporters, undercover cops, confiscated cellphones, and far-right groups, such as the media provocateurs of Project Veritas and the Oath Keepers militia. One of the defendants, independent journalist Alexei Wood, had his live-stream of the event used as evidence against himself and his co-defendants. In his video, Wood can be heard cheering while others graffiti walls and break windows. On Wednesday, Leibovitz decided that cheering isn’t enough to establish incitement. “Personal enthusiasm for the destruction,” Leibovitz said, “is qualitatively different from urging others to destroy.”
ONLY A TINY FRACTION of those arrested on January 20 could have personally engaged in acts of property destruction. The prosecution doesn’t dispute this fact. “We don’t believe the evidence is going to show that any of these six individuals personally took that crowbar or that hammer and hit the limo or personally bashed those windows of that Starbucks in,” Assistant U.S. Attorney Jennifer Kerkhoff told the jury in her opening statement on November 20. “You don’t personally have to be the one that breaks the window to be guilty of rioting.”
Though it sometimes gets lost amid breathless reporting on masked anarchists, shattered glass, and burning limos, the real story of J20 is one of the state attempting to imprison almost two hundred people for criminal acts committed by a handful. The prosecution’s novel theory of group liability — in which anyone in proximity to criminal behavior during a protest can be held liable for those crimes — is a grave threat to the First Amendment, the right to assemble, and the right to protest, according to civil rights advocates. “The prosecution’s case is utterly bizarre and essentially rests on both guilt by association and criminalization of dissent,” said Chip Gibbons, the policy and legislative counsel for Defending Rights and Dissent.
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