In Light of Due Process Violations, Charges Dismissed, Prosecution Sanctioned in J20 Trials

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While prosecutors were going ahead with closing arguments in one set of J20 trials, one floor above in the same courthouse a judge was issuing sanctions against the government for failing to disclose exculpatory evidence. In a huge blow to prosecutors, conspiracy charges will be dismissed with prejudice against ten defendants and seven defendants had all of their remaining charges dismissed without prejudice.

Last week, Chief Judge Robert Morin found that the prosecution when editing a video surreptitiously taken by Project Veritas excluded exculpatory evidence. Finding this to be what is known as a “Brady violation,” today Chief Judge Morin held hearings about sanctions. In the interim, it came to light that prosecutors withheld from defense the existence of 69 Project Veritas recordings.

Before defense could make arguments, the prosecution made a surprise motion to dismiss without prejudice (meaning the charges could be brought at another time) a number of charges.  The prosecution:

  • moved to dismiss charges for all six defendants scheduled to go on trial on June 4
  • moved to dismiss all charges for one of the four defendants set to go on trial on May 29.
  • moved to dismiss the inciting or urging riot charges for the three defendants in the May 29 trial group, reducing their charges to four misdemeanors.

According to the prosecution, Judge Kimberly Knowles, the judge in the currently ongoing J20 trial that started on May 14, had when issuing her jury instructions articulated a more specific standard for what constituted intent in inciting a riot than the judge in the previous trial had. Under this standard for intent, the prosecution conceded they could not prove inciting or urging a riot in these cases (all of the inciting a riot charges were thrown out by a judge in the first J20 trial; two of the defendants in the currently ongoing J20 trial had their inciting riot charges similarly dismissed).

As far as the other charges the prosecution wished dismissed, the prosecution claimed that the issue of Project Veritas had become a “distraction.” While the prosecution only wanted to focus on the conduct of the defendants, the trial had turned into an investigation of Project Veritas’ infiltration of DisruptJ20. By the prosecution’s own admission during today’s hearings, Project Veritas had sought to infiltrate “leftist groups” for their “own purposes.”  

The defense objected to the motion, however, saying that in light of the serious constitutional violations that the charges should be dismissed with prejudice. While the prosecution repeatedly tried to argue that the court could not rule on Brady violation sanctions as the charges had been dismissed, Chief Judge Morin repeatedly reminded them that the charges hadn’t been dismissed, that a motion to dismiss the charges had been made. As a result of the defense’s objection, the judge heard arguments over whether the charges should be dismissed with or without prejudice.

During these arguments Chief Judge Morin stated very clearly that Assistant US Attorney Jennifer Kerkhoff, who was not present, had made material misrepresentations to him. The prosecutors arguing the motion, who were not present when Kerkhoff incorrectly told the judge that only one Project Veritas recording was received by police, conceded they could not explain Kerkhoff’s statement.

Prosecutors attempted to explain the failure to disclose the remaining recordings by stating that in response to an unprecedented warrant to retrieve information from DreamHost about visitors to and people who communicated with they were told to be respectful of people’s privacy. Chief Judge Morin, who issued the DreamHost ruling, told prosecutors that was entirely unrelated. Prosecutors also told the judge that they failed to turn over the recordings because they were of people planning protests, talking about their views, and other protected speech. This would be the first time in the J20 proceedings that the government had shown any concern about the First Amendment or personal privacy.

Ultimately, Chief Judge Morin found the prosecutor intentionally withheld exculpatory evidence. As Kerkhoff was not present to explain her factually incorrect statements to the court, Chief Judge Morin stated he did not have enough information to decide whether the withholding of evidence was malevolent. Chief Judge Morion sanctioned the government by dismissing the conspiracy to riot charge with prejudice for the ten defendants who brought today’s motion. He granted the rest of the prosecution’s motion to dismiss without prejudice. This means the conspiracy charge can at no point be brought against the ten defendants. It also means for the three defendants who had their charges reduced to three misdemeanors today they will be facing a bench trial, as opposed to jury trial. That trial is scheduled to begin on Monday.

Interesting information was gleaned from today’s hearing about the extent of infiltration of DisruptJ20. Project Veritas deployed 8 infiltrators. Project Veritas’ attorney contacted the FBI in order to report DisruptJ20 activists and met with an agent on January 13. While the prosecution claims the FBI did not have further contact with Project Veritas, it would be in the public’s interest to know what role the FBI played in monitoring or tracking protest groups in the run up to the Inauguration.

Just one floor below closing arguments were heard for another group of J20 defendants (hence Kerkhoff’s absence at the sanctions hearing). Despite having similar Brady violations, Judge Knowles, the presiding judge in that case, has yet to rule on sanctions against the government. As a result, closing arguments went on as though nothing had happened. Judge Knowles has stated she reserves the right to call a mistrial. She also told counsel she had spoken to Chief Jude Morin at lunch and would make her own decision after closing arguments. It’s also unclear what today’s ruling will mean for defendants outside the May 29 and June 4 trial groups.

The J20 prosecution has been rife with government misconduct, starting with the arrests themselves. While it is a positive development that the prosecution has faced sanctions for its culiminatives due process violations in the cases of some defendants, this situation should never have been allowed to get this far. All of the remaining charges need to be dropped and Kerkhoff needs to resign.