Federal prosecutors received a series of blows Thursday in their effort to convict members of anti-capitalism march of felonies for rioting and destroying property during President Trump’s inauguration in Washington, D.C.
Judge Robert Morin, ruling on pretrial motions for 10 defendants, dismissed seven cases after finding prosecutors improperly concealed undercover Project Veritas videos from defendants, ruling that “it’s a serious violation” of their rights.
Morin reduced felony counts to misdemeanors for three others, who now will have bench trials beginning in June.
Later in the day, Judge Kimberly Knowles, presiding over a four-person group trial, allowed jurors to begin deliberations. But Knowles said she is considering defense motions to declare a mistrial over the videos, some of which cast doubt on the degree of shared planning ahead of a raucous half-hour march that ended in the mass arrest of more than 230 people.
After jurors were excused with deliberation instructions, Knowles read aloud a note from Juror 10, who wrote that she read a message on a bathroom wall saying, “Google jury nullification.” The juror did so, the note said, and then discussed the concept with the rest of the jury. Jury nullification is the practice of ignoring laws to find otherwise guilty defendants innocent, and judges often make a point of concealing the option from juries.
All sides agreed nothing could be done about the jury’s talk of nullification, though Assistant U.S. Attorney Jennifer Kerkhoff quipped, “I’ll say the government didn’t write it.”
Although the march occurred 16 months ago, the trial headed to jury deliberation is only the second. An initial trial resulted in six acquittals last year after prosecutors alleged only that defendants attended the march and thereby were guilty accomplices akin to a getaway car. Prosecutors dropped charges against 129 people after the first trial, leaving just 59 defendants.
Midway into closing arguments Thursday, Knowles asked to be briefed on Morin’s rulings. She said she would review the facts independently and that “the motions for mistrial are moving forward.” Closing arguments went ahead with defense teams unsure if Knowles would rule on a possible mistrial before jurors reach a verdict.
Kerkhoff, the leading prosecutor on the inauguration cases, said she is considering a challenge to Morin’s findings and said defendants were aware that prosecutors had more Project Veritas videos.
Project Veritas, a politically conservative investigative group founded by James O’Keefe, put any blame on the government. “Project Veritas provided unedited and complete footage to the government,” said the group’s communications director Stephen Gordon.
“The issue being pressed by the criminal defense lawyers for their clients is whether the government met its discovery obligations. The issue has NOTHING to do with Project Veritas,” Gordon said. “Veritas is a favorite target of the criminal defendants because we infiltrated and taped their planning meetings, and so their lawyers are beating the tired and dishonest refrain that our videos were unreliable.”
Kerkhoff argued during closing arguments that defendants Michael Basillas, Anthony Felice, and Seth Cadman engaged in vandalism and that communication records indicate Casey Webber knew in advance of plans. Defense attorneys argued mistaken identify and free speech.
“I’m feeling good,” said Basillas, who otherwise declined to comment during a break from closing arguments.
Although Kerkhoff is leading efforts to put the activists behind bars on felonies that could carry long prison terms, some supporters of the defense appeared to take a perverse pleasure in her presentations.
“Kerkhoff is so so great! I can’t wait to watch her head pop off!” one audience member said, eagerly heading into the final stretch of closing arguments.
In her closing remarks, Kerkhoff pushed back on claims that the First Amendment protected the activists’ attendance in the black-clad march, arguing the protection doesn’t extend to violence and that by not leaving the larger group, the defendants essentially said “I’m in” for rioting. “I’m asking you to protect the First Amendment too. We protect it when we honor it,” she said.
Kerkhoff disputed that activists were unidentifiable in poor-quality video still frames, arguing Basillas, who wore cyan-colored hair highlights and matching lip glitter to court, could be identified by tortoise-shell eyeglasses. “Look at how detailed those glasses are,” she said.
Defense attorneys argued, however, there were no witness identifications of the men and no physical evidence — evidence of poor police work, many have said.
“No co-conspirator has come forward to testify against any of these four gentlemen,” said defense attorney Matthew Rist, who is representing Felice. Unlike the other defendants, Felice is charged with resisting arrest and assaulting a police officer for allegedly charging toward a police line, an act that allowed dozens of the most aggressive activists to avoid arrest.
Rist refused to accept prosecutors’ claim that a man in a motorcycle helmet was Felice, referring to the person as “Mr. Motorcycle Helmet Man.” The individual punched, but did not break, a Starbucks window.
Rather than resist arrest, “motorcycle helmet guy gets tossed around like a ragdoll,” Rist said, claiming excessive police force, including with pepper spray, as the man lay nonthreateningly on the ground. Rist vividly re-enacted an officer’s command, “Stay right fucking there, bitch.”
Defense attorney Seth Schrager, representing Cadman, told jurors about the protest march, “It’s not Godzilla destroying Tokyo. We’re talking about some windows being broken.”
Schrager cast doubt on whether Cadman actually was identified, referring to a photographed suspect who threw a rock at a bank window as “Mr. X.” He also argued “Mr. X” had poor throwing form, with no follow-through, making the projectile unlikely to hit a target. He added the windows already had been smashed, meaning even if it did strike the windows, they already were worthless.
“What we have here is basically a mass political arrest,” Schrager said. “They basically took a random sample of the protesters.”
Webber’s attorney, April Downs, repeatedly asked jurors, “Why is he here?” She read from a Facebook group chat including her client, saying that talk of arrest did not constitute conspiracy to riot. She said there’s no evidence he ever opened the Facebook chat and that, “if he did, isn’t he just being a good citizen?”
“We all need to protect the rights of people, whether we agree with them or we radically disagree,” she said.
