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#DefendJ20: Prosecutors Illegally Withheld Evidence From #J20 Trump Inauguration Protesters

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. 

Six inauguration day defendants move for sanctions against a federal prosecutor and dismissal of their charges.

Originally published by Unicorn Riot and Defend J20 Resistance

Note: Enough is Enough is not organizing any of these events, we are publishing this text for people across the US and Europe to be able to see what is going on and for documentation only.

DefendJ20: Prosecutors Illegally Withheld Evidence From J20 Trump Inauguration Protesters, Judge Finds

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.)

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.

Unicorn Riot, May 23, 2018.

Six Inauguration Day Defendants Move for Sanctions against a Federal Prosecutor and Dismissal of Their Charges

Defense lawyers accuse government of withholding evidence from covert video taken by far-right group Project Veritas.

Washington, DC – Lawyers for six Inauguration Day protesters will argue a pretrial motion today accusing Assistant US Attorney Jennifer Kerkhoff of withholding evidence favorable to the defense. In a motion filed yesterday, defense lawyers call on the court to sanction AUSA Kerkhoff for this “blatant hiding of evidence” and a dismissal of the indictment against all six defendants–Matthew Hessler, Christopher Litchfield, Daniel Meltzer, Dylan Petrohilos, Clay Retherford, and Caroline Unger–scheduled to go to trial on June 4.

The motion for sanctions and dismissal (PDF file), which will be heard this morning by DC Superior Court Chief Justice Robert E. Morin, stems from the government’s use of video footage supplied by the far-right organization Project Veritas. AUSA Kerkhoff has continued to use the Project Veritas video to criminalize protest organizers and protest planning, accusing defendants of conspiring to commit acts of violence.

What: Hearing on a motion for sanctions and dismissal of charges against six Inauguration Day defendants

When: Wednesday, May 23 at 10am

Where: DC Superior Court, H. Carl Moultrie Courthouse, 500 Indiana Avenue NW

AUSA Kerkhoff has consistently maintained that the footage redacted from the beginning and end of the Project Veritas video had no evidentiary value. But after defense lawyers demanded, then obtained through court order the uncut footage, it was apparent that exculpatory evidence had been withheld by the government. AUSA Kerkhoff is also being accused of disclosing new video evidence without notifying the defense.

“Assistant US Attorney Jennifer Kerkhoff has repeatedly shown contempt for the legal process in her zeal to convict political activists,” said Sam Menefee-Libey of DC Legal Posse. “Federal prosecutors are prepared to hide evidence, malign political organizing, and spend millions of taxpayer dollars in an attempt to put anti-Trump protesters behind bars for decades.”

By failing to adhere to prosecutorial obligations under a 1963 US Supreme Court decision in Brady v. Maryland, requiring prosecutors to disclose exculpatory evidence in advance of trial, lawyers argue that USA Kerkhoff misled both defense counsel and the court. If Judge Morin decides not to dismiss the charges against the six defendants, lawyers are asking for the video to be suppressed at trial.

Today’s motion comes as another Inauguration Day protest trial which began on May 14 continues against four defendants–Michael Basillas (pronouns: they, them), Seth Cadman, Anthony Felice, and Casey Webber. On Monday, the government called undercover Metropolitan Police Department officer Bryan Adelmeyer as a witness to testify about his undercover operation to infiltrate and investigate the same January 8, 2017 planning meeting which was filmed by Project Veritas. Although Adelmeyer authenticated the footage taken by a Project Veritas operative, the undisclosed segments of footage were not raised during his testimony.

Another Inauguration Day protest trial against four defendants is set to begin on Tuesday, May 29.

Defend J20 Resistance, May 23, 2018.


 

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