Criminalizing Dissent: After Proving “Mere Presence” J20 Prosecution Rests Case

Washington, DC – Since November 20, trial has been underway for the first group of defendants charged with multiple felonies after being caught up in a politically targeted mass arrest of an anarchist protest march during Donald Trump’s inauguration on January 20 (J20). The arrests took place when, after some store windows were broken, police forcefully herded the march into a trap and ‘kettled’ the entire group at 12th & L streets. Detained for hours in winter weather without access to food, water, bathrooms, or medical care, almost two hundred people would be indicted for a series of felonies and misdemeanors.

Update Weds. 12/13: On Wednesday morning Judge Lynn Leibovitz dismissed the charge of inciting a riot against all six current J20 defendants. More to follow:

Several hours later, Judge Leibovitz labeled photojournalist Alexei Wood a “principal aider and abetter” in the alleged conspiracy to riot because his livestream “played a role…to advertise, broadcast…to recruit” and keep people “informed of the events”, and denied all other motions to dismiss the remaining charges against the defendants.

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The indictment brought by the US Attorney’s Office for DC in the J20 case seeks to hold every perceived member of the political assembly responsible for alleged individual acts, such as breaking windows or throwing bricks at police, which appear to have been engaged in by only a dozen or so people. The case is being heard by Judge Lynn Leibovitz (known as “DC’s toughest judge”) in DC Superior Court, with US Marshals providing court security.

The vast majority of the trial has been a long list of prosecution witnesses giving highly repetitive testimony that had little or nothing to do with the current defendants. Assistant US Attorneys Jennifer Kerkhoff and Rizwan Qureshi brought in at least a half dozen witnesses who were managers or owners of commercial businesses who had their windows broken on inauguration day, and had them recount their woes in detail to the jurors. (One business owner accidentally let it slip that her broken windows had been paid for by her insurance company.)

The prosecution also elicited testimony from a series of officers who were involved in processing protesters and others caught in the kettle for arrest, but could not offer any information as to what the person they were called in to arrest had been doing before they arrived. They also brought in several officers who were working in MPD Civil Disturbance Unit (CDU) platoons that day, and witnessed or engaged in confrontations with protesters, but none of the officers offered any particularized allegation against any defendant.

The most pertinent testimony has come from Commander Keith Deville, who ordered the mass arrest, as well as Greggory Pemberton, the main detective working full time on the case, who was the last to testify. Detective Pemberton’s testimony the previous week largely served as a mechanism for the prosecution to introduce as evidence a series of photo stills pasted onto boards, which were accompanied by slow-motion video compilations and power point presentations.

The exhibits place the defendants at various points along the route of the march before it was surrounded and detained as ordered by Commander Deville. Assistant US Attorney Kerkhoff finished her direct examination on Monday after such exhibits had been introduced for each defendant, proving their presence at the protest march, but nothing else.

The defense’s cross-examination of Pemberton began on Monday and stretched well into Tuesday. Counsel for defendants played numerous videos to Pemberton, showing several current defendants walking calmly, far ahead of or behind the main group, clearly not involved in acts of property destruction that took place a provable time and distance away. When asked, Detective Pemberton claimed he has not used any special software to analyze the hours of video he said he has spent all year watching “hundreds of times.”

Defense counsel for Alexei Wood, a photojournalist among those currently on trial, pointed out extensive discrepancies between the PD-81 “property book” form for Wood and the items entered into evidence entered against him. Wood’s camera monopod was listed as a “baton” despite Pemberton’s admission that no weapons were found on Wood. Several memory cards, as well as Wood’s business cards, were taken off him but were not listed on his property form.

Pemberton also admitted that ‘soft deleted’ videos were forensically recovered off Wood’s memory cards but none of them seemed relevant to his investigation. Wood’s attorney then showed portions of the Cellebrite extraction report produced after Detective Evans harvested Wood’s private phone data. Numerous texts and emails sent to and from Wood show pitching coverage of inauguration protests to news editors and discussing potential leads with other reporters. (Assistant US Attorney Jennifer Kerkhoff and Detective Pemberton have both claimed Wood is not a member of the press.)

Pemberton confirmed after being questioned by Wood’s attorney that nowhere, in any data taken from Wood’s devices, is there any evidence of a connection between Wood and ‘Disrupt J20’ organizers, the other defendants, or any other connection to an alleged criminal conspiracy.

Defense attorneys for an individual who was acting as a street medic cross-examined Detective Pemberton and played several slow-motion clips showing the defendant at various points throughout the march. Several surveillance videos from areas where property was destroyed show the medic, identified by a white helmet with red cross, trailing the protest march, walking past scenes where glass had already been broken before they were in the immediate area.

Footage was also played to show the same medic in the white helmet at the scene when the police line was charged at 12th & L and some people broke through and escaped before the mass arrest perimeter was reinforced by more officers. The white helmet is seen about 20 seconds after the initial incident and did not appear to have engaged in the charge.

Police bodycam video also showed the person in the medic helmet being hit with a baton and effectively forced by officers into the area where ppl were then surrounded and mass arrested without warning. Officers shouted “move!” and “go home.” One man responded “I got nowhere to go!” as officers appeared to be shoving people into a tightly packed crowd that was also being pushed by a police line on the opposite side, effectively trapping them.

The same video also appeared to show a medic defendant, along with many others, being pressed tightly into one another by police batons as other officers threw stinger grenades directly into the trapped and surrounded crowd. Several other videos played by the defense showed the same person using a squeezable water bottle to perform eye flushes to assist people suffering from pepper spray exposure.

Another defense attorney then began his cross-examination of Detective Pemberton before court ended for the day. He cited tweets made by Pemberton about the “restraint” and “professionalism” shown by MPD officers who dealt with anti-Trump protests on inauguration day.

Defense played a video of an officer dousing photographers and protesters in OC spray without warning. The officer then appeared to strike a protester with a fire extinguisher-sized OC spray canister. Pemberton was asked if in his opinion, that officer showed “professionalism.” Pemberton answered that he thought he did.

Another defense attorney’s cross-examination focused on Pemberton’s apparent bias in the case, and made extensive use of tweets Pemberton had made disparaging protesters. On January 20, Pemberton made several tweets saying that DC Police (MPD) officers used an “inspiring amount of restraint” and showed “professionalism.” The defense asked Pemberton if it was true that he recently deleted several tweets and set his account to private. The Detective said he had locked his account due to “targeted harassment”.

Defense also showed the jury a tweet made by Detective Pemberton in November 2016 in which he denounced “disingenuous ‘activists’ who peddle lies and falsehood.” and introduced documentation of the Detective ‘liking’ a tweet by Sheriff David Clarke, Jr. denouncing “leftist goons.”

Defense counsel also played a clip of an interview Pemberton gave to the far-right media outlet One America News Network in which the detective praised Trump, saying his “message of law and order…has appealed to a lot of police officers.”

Pemberton had also tweeted about the alleged “false narrative” used by Black Lives Matter and others who complain about police shootings. Pemberton appeared to walk back some of his comments about Black Lives Matter, saying in recent years he had seen the movement start offering solutions and becoming more reasonable. Pemberton seemed to hold up his idea of a newer, less hostile Black Lives Matter as opposed to previous forms of the movement, which he said used “distasteful rhetoric” which led to “assassinations” of police officers.

Pemberton also defended his tweets as “bombastic” “public relations” that were not his personal positions but in fact were deliberately “edgy” statements made to get attention, composed purely in his role as a DC police union official.

Defense counsel pointed out to the jury that Detective Pemberton’s Twitter account follows Donald Trump, Mike Pence, Kellyanne Conway, Donald Trump Jr., Fox News, Breitbart News, and an account associated with /pol/, an alt-right neo-Nazi message board. He has also liked tweets by Project Veritas founder James O’Keefe.

Numerous other tweets made by Detective Pemberton were sought to be entered by the Defense but were kept out of evidence by Judge Leibovitz after deliberations with the prosecution to narrow the scope of the tweets used in court.

An attorney for one of the defendants also had Pemberton confirm that he was once investigated by MPD internal affairs for providing false statements after being caught driving drunk off duty in 2008. Pemberton would later be disciplined for “conduct unbecoming of an officer” after he billed the police department for overtime which included time spent attending his own DUI court date.

The government then called Robert Ranck, an investigator in MPD’s intelligence unit who was sent in plainclothes to monitor the anti-capitalist anti-fascist march on January 20. He described arriving in Logan Circle around 9:30 A.M., traveling with the march along most of its route, and eventually leaving the group to rejoin the police.

Body camera video played in court earlier in the trial showed Ranck removing himself from the vicinity of a group of protesters on a sidewalk being doused in OC spray. He was putting his hands up and shouting “MPD! MPD!” before walking through the moving police line. Ranck’s testimony echoed the general narrative advanced by the prosecution but none of his recollections directly involved any of the current defendants.

After Ranck’s testimony concluded, the prosecution rested their case. The defense’s case was very short and consisted of a few character witnesses, mostly defendants current or former employers, who testified to the agreeable, generally peaceful demeanor of several individuals on trial.

After just a few short hours of character witness testimony, the defense also rested, having apparently made most of their case in cross-examinations.

Several defendants gave Judge Leibovitz a copy of their motion for judgment of acquittal, which the judge said she would need to take time to review and would address on Wednesday. Counsel for another defendant made her oral arguments for her motion for judgment of acquittal before court ended on Tuesday. She said the government had failed to prove anything against her client other than the fact that she had attended the anti-capitalist anti-fascist march on January 20, repeatedly stating “mere presence is not enough.”

Judge Leibovitz has scheduled further hearings this week, without jurors present, for both sides to argue outstanding issues with new evidence exhibits. Jurors may have the case as soon as Friday, and by all accounts deliberations are expected to begin, and possibly end in a verdict, next week.

Unicorn Riot obtained an archive of Detective Pemberton’s Twitter account from a third party, an important element of the trial’s public record which Pemberton has been purging data from and restricting access to in recent days. The third party’s user information was removed and files recompressed but otherwise unaltered.

Download the large ZIP here: (171.6MB, SHA-256 fingerprint = f99e32657036684555e4fa3488bb271c4dcea909a6b6c6e37659cc356d70de97 , MD5 fingerprint = 7ac3a36bd6f905cced3bde075f8ac284 ). The HTML archives are best viewed on a web browser.

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