Criminalizing Dissent: Trump Inauguration Protest Trial Enters Fourth Week

Washington, DC – Several weeks into the first trial of the individuals who were mass arrested during President Trump’s inauguration in DC on January 20 (J20), the prosecution is almost ready to rest its case. The arrests occurred at 12th & L streets when police chased, trapped, and surrounded the ‘anti-capitalist and anti-fascist’ protest march.

The first trial group comprises those who insisted on their right to a speedy trial. Jury selection began on November 15, and the trial itself started with opening arguments on November 20. The next group of defendants exercising their right to speedy trial is set for trial later this month but may be delayed to January; many other trials for the remaining defendants are scattered throughout 2018.

In what will surely set precedent for numerous trials to come, the US Attorney’s Office is testing its highly controversial guilt-by-association felony conspiracy dragnet case. Assistant US Attorney Jennifer Kerkhoff stated in opening arguments that none of the current defendants are alleged to have committed any acts of property destruction or violence. Nonetheless, based on their mere presence at an anarchist protest march where some property was destroyed, all six are facing six felony charges (incitement to riot plus five counts of felony property destruction) and two misdemeanors (engaging in riot and conspiracy to riot) carrying potential sentences of up to 61 years in prison.

The previous week, DC Metropolitan Police Department (MPD) Commander Keith Deville took the stand as a prosecution witness. Deville was responsible for MPD actions on January 20 and personally ordered the arrests of the entire anti-capitalist anti-fascist march just a few minutes after it began. The defense’s cross-examination of Deville was well underway on Thursday, November 30, and picked up again on the morning of Monday, December 4.

MPD Commander Keith Deville, third from right, at a December 2016 police briefing for Capitol Hill residents about inauguration preparations. Image Credit: Commissioner Jennifer Samolyk

Defense attorneys used their cross examination of Deville to introduce as evidence a preliminary report released by Washington, DC’s Office of Police Complaints, or OPC, who sent monitors to observe police on Inauguration Day. The report details many violations of policy by MPD in their treatment of protesters on January 20, including failing to affect arrests based on probable cause, using OC spray without warning, and applying flex-cuffs improperly.  Many arrestees said their flex-cuffs were put on much too tight, causing pain and nerve damage. Police have been known at times to deliberately over-tighten arrestee’s flex-cuffs as a torture tactic to gain compliance. Commander Deville told defense counsel that the OPC preliminary report was not “consistent with his personal findings” that officers used great restraint that day.

Deville was asked if his position insisting officers acted properly made it “more likely that these defendants will be convicted and officers will not be disciplined?” Deville claimed his comments that officers used restraint was meant to address the “totality” of events on Inauguration Day, “not specifics.” However he eventually admitted that “convictions in the case would limit our civil liability in the matter, yes.

Defense attorneys then questioned Deville at length about the sequence of events leading up to the mass arrest, which he had ordered shortly after the anti-capitalist, anti-fascist march began. Deville was asked when exactly he had decided that the march was “no longer a protest, but a riot.” He answered “as soon as I said it over the air,” which he said corresponded to the time the now-iconic limousine was first damaged (after the mass arrest at 12th & L streets, the same limo was later set on fire.)

The defense asked Deville, “In your opinion, was everyone who was with the group rioting from the limo to the point at 12th & L?” He answered, “yes.”

The defense then played the Commander a series of video clips showing people at the march (after the time at which Deville claimed the protest had become a riot) walking in the street calmly, often chanting and/or holding signs. Deville defended his characterization of everyone present as rioting, claiming “there was a core group that was together.

Defense counsel for photojournalist Alexei Wood, one of the defendants currently on trial, asked Commander Deville to clarify his characterization of the “core group that was together.” Deville initially claimed that press was visibly “not having been a part of the riotous group” but after further questioning, Deville admitted that reporters trying to capture what was going on with the “core group” would have to place themselves in proximity to that group.

Deville also claimed that he had announced to everyone surrounded by police at 12th & L streets that they were under arrest. Several people arrested that day have stated they never heard any announcement from Deville, and since no video of Deville making the announcement has been introduced as evidence by the US Attorney’s Office, it is presumed to not exist.

In Wood’s livestream video from January 20 protesters can be heard chanting “Let us go! Let us go!” after police surrounded the group. Commander Deville suddenly appears in the video from out of frame and mockingly chants back at them, “Not gonna happen! Not gonna happen!

It’s unclear if this exchange is what Deville meant when he said he remembered telling everyone in the group that they were under arrest. No other video of him addressing the group detained at 12th & L has surfaced in court to date.

Further cross-examination by the defense also illustrated that while Deville claimed only one injury (a sprained ankle) occurred as a result of police actions, in fact several other people had been injured. When asked about a man who had his contact lens forced into the back of his eye by pepper spray, and several hospitalizations from shrapnel wounds from police munitions, Deville said he was unaware of those incidents.

MPD policy requires that people who have been arrested be treated for any injuries, as well as the completion of a ‘PD Form 313’ to document injuries. Only one Form 313 was filled out on Inauguration Day, despite at least four serious injuries taking place at police hands on January 20.

On her re-direct examination of Commander Deville, Assistant US Attorney Jennifer Kerkhoff tried to downplay apparent violations of MPD’s Standard Operating Procedures (SOP) on Inauguration Day, citing a portion of the SOP which reads, “It is impossible to devise specific SOP for all situations…each situation is unique.

She also asked Deville why, on police radio chatter played in court, he asked about how many ‘anarchists’ were present at different protest events. He answered “I wanted to gauge what kind of crowd I was dealing with…the intention was volatile, the signage was volatile.

Kerkhoff then attempted to rebuke the defense’s references (made in cross-examination the previous week) to Deville’s history of telling Holocaust jokes, as well as making derogatory comments about gay and transgender MPD officers, by having him answer “no” to her question if he held “any bias against anyone in this case or anyone at all.

Also in her re-direct of the witness, Kerkhoff attempted to retroactively justify Deville’s decision to break with MPD policy and arrest everyone present at the protest without any warnings or dispersal order. Kerkhoff appeared to basically put words in Deville’s mouth, stating that “with the sirens, with the lights, with the use of spray…people were on notice of your intent to stop them, to detain them.” Nowhere in MPD Standard Operating Procedures does it indicate that the presence of police sirens, or the use of pepper spray, constitutes a dispersal order to political demonstrators.

Kerkhoff then called to the stand several forensic technicians from DC’s Department of Forensic Sciences (DFS). Kerkhoff used the forensic witnesses’ testimony to dramatically show to the jury several items, such as masks and crowbars, as evidence of the defendants’ criminal conspiracy. Upon cross-examination several forensic specialists admitted they had been given the items out of the back of a police vehicle after they arrived on the scene, and did not know where exactly they had been recovered from.

On Tuesday, December 5, the prosecution called a number of additional police witnesses to the stand, who had served as the official arresting officers for the current defendants. None of the arresting officers were present for the final events leading up to the mass arrest, and did not offer any particularized probable cause for arresting any defendant.

Officers were asked by Kerkhoff to identify items taken from those they had arrested, such as hats, backpacks, and bandanas. Upon cross-examination several officers appeared to not actually know anything about defendants’ property. One said of the defendant he arrested, “I don’t know what was in her possession.” Another defendant’s arresting officer said he did not know which officers were involved in searching the defendant.

Seemingly unremarkable items, such as medic kits and blank jail support forms, were contemptuously held up to jurors by Kerkhoff, who was wearing purple medical gloves, as evidence of the current defendants’ guilt for crimes allegedly committed by others at the same protest as them. Defense attorneys pointed out multiple inconsistencies in physical evidence taken off defendants, as numerous items seen on their person in their arrest videos did not appear on the property forms.

After a litany of mundane, repetitive testimony from police officers who carried out arrests, the prosecution called more police witnesses who were involved in Civil Disturbance Unit (CDU) platoons that had several interactions with protesters before the entire group had been detained.

Officer Harrison Grubbs testified to his interacting with protesters in the march before the mass arrest. Grubbs said he responded to a radio call to deal with a group of “people dressed in black known as the anarchists” and testified that he injured his wrist that day. Other officers would later claim that Grubbs was assaulted, but his own testimony made it clear that he fractured his wrist after deliberately crashing his bicycle into a protester in a failed attempt to make an arrest. A man in a leather jacket, seen on police video helping Grubbs in his failed arrest attempt, would later be identified as a member of the far-right group ‘Bikers For Trump’.

Next on the stand was Officer Michael Howden, who rode a ‘scooter’ type motorcycle as part of a CDU platoon that was trailing the anti-capitalist anti-fascist march on the morning of Inauguration Day. Howden seemed to speak very freely during his testimony in ways that may have frustrated Assistant US Attorney Kerkhoff, who at one point during his cross-examination was seen holding her head in her hands. Howden’s testimony appeared to contain several contradictions, and he became very defensive when asked about them.

The defense asked Officer Howden if he said police were “extremely wild” with OC spray on inauguration day. Howden answered “I did not say that.” Defense then played body camera video showing Howden saying those exact words. Howden then said the defense was taking “side conversations” “out of context“. Officer Howden also testified on direct examination that he had recognized Officer Grubbs at the police line on 12th & L when the mass arrest began. Defense pointed out Grubbs would have been getting his wrist injury treated at that time & wasn’t present. Upon cross-examination, Howden claimed to not recall the day’s events clearly.

The defense also asked Officer Howden if he made a comment about “herding” protesters. Howden said he did not. The defense then played body camera videos where Howden told officers “I’m fairly accustomed to that sort of rioting” and bragged about his experience “herding people through Barry Farm when they’re rioting, when they’re out of control.” Local DC activists were quick to point out that Barry Farm is a lower-income black neighborhood historically targeted by racist crowd control policing by officers in MPD’s seventh district and Howden’s comment is a clear example of how racism comes into the day-to-day practices of DC Metropolitan Police Department (MPD).

Eugene Puryear, an organizer with Stop Police Terror Project DC, told ThinkProgress,

“The number one complaint I get from [Barry Farm] residents is the police are not very focused on crime…There’s a lot of petty harassment from police for open containers, things like that. Police seem uninterested or afraid of actually doing their jobs in that area… The district where [Howden]’s from is one of the districts where there is most complaints about police behavior on a number of different levels. It’s a very ‘special forces in Afghanistan’ type attitude toward policing…People in areas like Barry Farm live with the feeling of being constantly targeted, constantly worrying if you’re a law-abiding citizen you are still targeted, still being shaken down, constantly at risk of being killed. People are forced to plan their life around it.”

Several officers from MPD’s seventh district, of which Officer Howden is a part, were disciplined earlier this year for wearing shirts with white supremacist imagery while on duty. The shirts, which read ‘Powershift,’ include a white supremacist circle-and-cross as well as a grim reaper, along with the words “let me see that waistband jo” – an apparent reference to racially targeted stop-and-frisk ‘jumpout‘ searches conducted by officers in the seventh district.

Image credit: Law4BlackLives

Sam Menefee-Libey from DC Legal Posse, a group organizing support for defendants, told us outside court that Howden’s comments demonstrated that “MPD’s record of brutality against black people in Washington, DC had a direct bearing on how they treated J20 protesters.

The prosecution then called their main witness, MPD Detective Greggory Pemberton. Pemberton, also from MPD’s seventh district as well as being the DC police union treasurer, is the main detective in the prosecution of Trump inauguration protesters. His testimony, which would take up the rest of the week, introduced an edited compilation video of evidence, using Google Earth aerial view montages to show the route of the protest march & locations where property was damaged. The prosecution then proceeded to use video stills and clips to place each defendant at different points along the map of the march route at various times.

After the 36 minute video had played out & been introduced as evidence, mugshots of all defendants were then introduced as exhibits. Assistant US Attorney Kerkhoff had Detective Pemberton describe in detail various personal items, such as clothing and backpacks, seized from defendants. While Detective Pemberton was not personally present for the events in question, he stated he has been working on just the J20 case all year, analyzing many terabytes of video evidence taken from a variety of sources.

After the drawn-out repetitive series of video and still exhibits were entered as evidence and all played in open court, the prosecution then played the full recording of Alexei Wood’s livestream of the march. The stream, 42 minutes long, shows the entire sequence of events from the group marching out of Logan Circle up to the point police attacked the march, chased marchers into a trap at 12th & L streets, and refused to let them leave. A group of about 50 was able to escape arrest by charging through a weak point in police lines before the mass arrest pen was fully reinforced, at which point police threw several more stinger grenades into the crowd and beat and pushed people closer together into a tightly confined perimeter.

Since Alexei Wood’s livestream lasted for the entirety of the anti-capitalist and anti-fascist march, there has never been any doubt by anyone that he was acting as a videographer that day. Despite this fact, the US Attorney’s Office had a grand jury re-indict him on several felonies after dropping charges on several other reporters earlier this year.

The prosecution’s apparent case against Wood centers around acts of speech captured on his livestream, including comments such as “we’ve got three blocks of black bloc” and cheering “woooo!” excitedly while capturing dramatic events such as windows being shattered or police throwing grenades into the crowd. Wood’s livestream narration while reporting on the anti-capitalist anti-fascist march has been referred to as “commentary in furtherance of the conspiracy” by both Judge Lynn Leibovitz and the prosecuting Assistant US Attorney Jennifer Kerkhoff.

After playing his full livestream video in court, Assistant US Attorney Kerkhoff said Wood’s claims to be a member of the press were false. She solicited Detective Pemberton’s agreement with her statement that Wood’s press badge, which appeared to use a pen name, “was not a legitimate press pass.” Earlier in the day, Kerkhoff, again wearing medical gloves, had shown Alexei Wood’s camera and press badge to the jury as evidence of his alleged crimes. Neither Judge Leibovitz nor the Assistant US Attorney Kerkhoff seem to be visibly concerned with the drastic press freedom implications raised by Wood’s prosecution.

After the portion of Detective Pemberton’s testimony in which she focused on Alexei Wood, Kerkhoff introduced a series of video stills, slow motion videos, and powerpoint presentations establishing each defendant’s presence at the anti-capitalist anti-fascist protest march. She then asked Detective Pemberton to identify various items as having been taken off each of the current defendants, as well as provide in-court identification of each person. Pemberton also indicated he has been attending court hearings throughout the year in an effort to identity clothing and backpacks worn by people he sees in court in order to cross-reference his observations with videos from January 20.

The detective’s Twitter account suggests he has a strong bias against the protesters whose prosecution he is intimately involved with. Pemberton once tweeted that complaints about police shootings of unarmed black youth are due to a “false narrative.” He has also retweeted several tweets disparaging NFL players who have spoken out against police shootings, and ‘liked’ a Fraternal Order of Police statement praising remarks made by President Trump earlier this year encouraging police brutality.

Additionally, Detective Pemberton follows a Twitter account associated with /pol/ – a message board on the websites 4chan and 8chan, widely known as hubs for white supremacist harassment campaigns, as well as ‘doxing’ (spreading personal information) of people thought to be antifascists.

The detective also follows Project Veritas, fake news producers recently exposed by the Washington Post, whose potentially manipulated video of an inauguration protest planning meeting was recently introduced as evidence in the first J20 trial.

Direct examination of Detective Pemberton will resume on Monday and is expected to conclude shortly, at which point he will be cross-examined by the defense, presumably at length. The prosecution reportedly has only two witnesses to call after Pemberton, at which point the defense will begin to make their case. The defense is expected to call between ten and fourteen witnesses to testify. It is unclear at what point the first trial will conclude.

The next trial, also in Judge Lynn Leibovitz’s court and presumably not running concurrent with the first, was initially slated to begin on December 11 but has now been pushed back to December 18, and could possibly be delayed even further.

Note: We have previously contacted the US Attorney’s Office in DC to ask for comment in our reporting on J20 court proceedings. They have indicated that they will not provide any comment on any ongoing court cases.

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