On Monday November 20, 2017, prosecution and defense gave opening arguments in the trial of the first of the six people–one journalists, two medics, and three protesters– swept up in the mass arrest of Inauguration Day Protesters. What was startling was how many of the key facts were not in dispute. Both prosecutors and defense attorneys agree that property damage did in fact take place during an anti-capitalist, anti-fascist march on January 20, 2017. Neither prosecutors nor defense attorneys purport that any of the six people on trial personally engaged in any destruction.
If none of the defendants personally committed property damage the question then arises why are these six people on trial for property damage, conspiracy to riot, engaging in a riot, and inciting a riot. Prosecutor Jennifer Kerkhoffk has from the very beginning sought to criminalize the act of protest. In her presentation, she claimed that the anti-capitalist, anti-fascist march was not a protest, but instead a premeditated riot. As a result, the planners of the march, the people who gathered at Logan Circle, and who marched down the street all did so with the intent to damage property. In Kerkhoffk’s opening argument, she repeatedly referred to the march as a “sea of black masks,” described its large nature, and claimed that individuals dressed in black popped out of the march, damaged property, and then jumped back in the march where they blended into the all black clad crowd. She promised the jury she would “unmask” the defendants.
Yet, Kerkhoffk’s own video presentations undermined her arguments. She showed the jury a number of video clips featuring close up footage of isolated acts of vandalism, such as an individual repeatedly striking a pay to park meter with what appears to be a rock. Yet, in the background of this image about ten feet behind the parking meter is people marching. Not running or forming a mob, but moving at a normal walking pace, carrying banners, and chanting.
Defense attorneys made it plain they weren’t afraid of the video “evidence.” The first attorney to give his opening arguments, told the jury instead of showing them just video clips, defense would show them longer videos of the march. And he did just that, showing a video of the march leaving Logan Circle, passing by several police vans, and continuing for several blocks. The video showed a crowd of people, some of them wearing black, some of them not, proceeding out of the park and down the street. Far from a menacing or violent mob, one person was visibly walking their dog. Another had a leg injury and thus had his leg on a scooter. After showing this video, the defense attorney said to the jury “This is what the prosecution is calling a riot.”
Another bizarre prosecution moment was Kerkhoffk’s constant refrain throughout her opening that the police did nothing as protesters allegedly threw trash cans and engaged in other acts of vandalism, instead they “just followed. They just followed.” This was often coupled with another favorite refrain–that the march proceeded for “16 blocks and 33 minutes.” It is unclear how Kerkhoffk thought this helped her case. Perhaps she was attempting to preemptively respond to charges of police brutality (defense attorneys showed videos of police in riot gear indiscriminately and randomly pepper spraying protesters and knocking an individual to ground). Perhaps she wanted to terrify the jury by conjuring in their imaginations an unrestrained orgy of destruction that continued for 33 whole minutes. However, the end result was that she mostly drove home the point that in spite of her attempts to portray the anti-capitalist, anti-fascist march as a riot, police felt relatively unmoved to act for 33 minutes.
Police action–and inaction–also played a large role in defense arguments. Defense attorneys pointed out that the police could have arrested the individuals engaged in vandalism, but elected not to. Defense also focused in on the numerous acts of police brutality that took place that day. Responding to the prosecution’s claim that the defendants were guilty, because they could have left, but chose not to, defense attorneys stated “this is America” where people are free to stand their ground and exercise their constitutional rights,but more importantly they were not allowed to leave.
The nature of the mass arrests of over 200 protesters played an important role in the defense’s arguments. Defense counsel noted that police failed to follow their own procedures and gave no warnings to disperse. Defense counsel argued that police found the First Amendment inconvenient and that it was easier for them to fail to distinguish between lawbreakers and protesters and transform a protest into a riot than act in accordance with the First Amendment. It was suggested that the charges were brought, because without convictions the police would most likely face a lawsuit for the arrests (prosecutors objected to this remark, which the judge sustained). Additionally, the defense played an audio recording of a police commander that would indicate the decision to kettle the protesters was made before the first act of alleged vandalism.
If this was true, then instead of a conspiracy to carry out a premeditated riot, we have a premeditated deprivation of the right to association, assemble, and dissent. This plot against the First Amendment continues with Jennifer Kerkhoffk’s choice to charge nearly 200 people for merely being present at a protest–whether as demonstrators, journalists, or medics.