Washington, DC – The United States government has officially been put “on notice” for violating the constitutional rights of anti-Trump protesters. While the second trial of people mass-arrested at an “anti-capitalist, antifascist” protest march during President Trump’s inauguration in DC began last week, hearings for other protest trial groups have also been underway. At a trial readiness hearing today for the June 4 trial group, DC Superior Court Chief Judge Robert Morin delivered a major blow to the prosecution’s case, officially ruling that the US Attorney had illegally withheld evidence from protester defendants.
(As Chief Judge, Judge Morin oversees motions in the inauguration protest cases but has been delegating the actual trials to other DC Superior Court judges who work under him.)
A motion filed last night by the defense counsel argued that the prosecution had committed a ‘Brady‘ violation by withholding portions of a video that has already been used in two trials related to the case.
‘Brady’ refers to case law which requires the government to immediately share with the defense any exculpatory information they come across which might aid in a defendant’s case:
“Under what is commonly known as the Brady Rule, it is a violation of a defendant’s constitutional right to due process for the prosecution to be aware of such evidence and not turn it over to the defense.” – Defending Rights and Dissent
Several defense attorneys had previously accused the government of repeatedly failing to meet their obligations under ‘Brady’. The ‘Motions for Sanctions and Dismissal’ filed by defense counsel this week stated, in part, that,
“The government has abused its power by hiding discovery from all defendants, purposefully choosing not to disclose Brady information, and calling into question the integrity of all its third-party video evidence and proffers in open court.” – Motion for Sanctions and Dismissal
In previous motions hearings, defense counsel had submitted a motion to compel the government to share all unedited copies of videos that had been introduced as evidence in edited and/or redacted form.
In April 2018, the government provided the defense with several additional files they had previously withheld. Included in these files was the larger, ‘unedited’ version of a video taken by operatives of Project Veritas at a January 8, 2017 planning meeting for protests opposing Trump’s inauguration as president later that month.
Prosecutors claimed they had edited the undercover video, but only with two small redactions made to protect the Project Veritas operative and to hide the face of an undercover police officer who was also present at the meeting. In fact, an additional portion of the undercover Project Veritas video had been edited out of previous copies of the video, and was only discovered by the defense just this week. The clip, previously redacted by the government, shows the source of the Project Veritas video, after the meeting is over, stating: “I was talking with one of the organizers from the IWW and I don’t think they know anything about any of the upper echelon stuff”.
Defense counsel for Dylan Petrohilos, who is charged based on his role in facilitating the January 8 planning meeting, wrote in their motion about the significance of this new information for their case:
“This is exculpatory evidence to the defense. The government plans to argue that Mr. Petrohilos and everyone else at that meeting were intending to plan a violent protest. What better exculpatory evidence for the Defense than the words from the person sent to capture a nefarious meeting stating right after the meeting, “I don’t think they know anything”. This evidence is clearly exculpatory and but for the Court compelling its production, Defense would have never received it.” – Motion for Sanctions and Dismissal
The defense motion describes other instances of the government allegedly withholding evidence from defendants. The legal filing claims that prosecutors had also withheld, until April of this year, another video taken by a Project Veritas operative showing other breakout groups meeting in the same room.
Judge Morin declared that he largely shared the defense’s findings, ruling that the government had in fact failed to point out evidence prosecutors knew could be exculpatory for defendants. Morin stated that while he had decided to sanction the prosecution, he was reserving judgement on what exact forms sanctions might take until a hearing on Thursday, May 31.
The Chief Judge said it was highly likely he would sanction the prosecution by excluding any use of any video of the January 8, 2017 planning meeting in any trial. Morin also hinted at the possibility of Project Veritas being subpoenaed to testify about the video.
Assistant US Attorney Ahmed Basset seemed unprepared to handle the matter without his supervisor, Jennifer Kerkhoff, present. At one point, Judge Morin asked Assistant US Attorney Basset, “Are you really saying that?” when Basset claimed the failure to notify the defense of the exculpatory video material wasn’t a ‘Brady’ violation.
Morin had also asked other similar questions such as: “you don’t think the defense was entitled to that video?” and “why are we saying this is not a Brady issue?”
Most of the courtroom laughed when Judge Morin asked Assistant US Attorney Ahmed Basset “do you want me to rule on the sanction right now?”, and Basset answered “No.” Basset also asked Judge Morin if the court sanctions were against him personally or just the US Attorney’s office in general. Judge Morin clarified the sanctions weren’t directed at him personally, at which point Basset appeared to be extremely relieved.
Downstairs in DC Superior Court, as Judge Knowles continued to preside over the second ongoing inauguration protest trial, lawyers for the current trial defendants argued that the new developments meant the case should be dismissed outright. Knowles declined to make a ruling until all parties had a chance to file new motions.
The current trial is expected to be significantly impacted by Judge Morin finding the prosecution committed a ‘Brady’ violation. The key witness in the case is Detective Greggory Pemberton, who is now implicated in the legal quagmire surrounding the editing of the Project Veritas video.
“These entire proceedings have been tainted,” one attorney told Judge Morin, referring to the central role of the Project Veritas video in past, present, and future trials. The video was played in the first inauguration protest trial, which ended in full acquittals last year, and was also played for the current jury in the second trial last week, casting doubts on just exactly how the case will proceed while Judge Morin decides on sanctions for the prosecution.
All remaining Trump inauguration protest defendants are still charged with six felonies and two misdemeanors and each face up to 60 years in prison if convicted.
Read the full Motion for Sanctions and Dismissal filed by the defense below. (Note: this document is not Judge Morin’s ruling nor is it a transcript of proceedings in Morin’s court.)Motion_for_Sanctions_and_Dismissal_1__1_
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