I’m going to keep dredging this up because every time there is a development in this case, I am positively floored by how draconian and authoritarian the prosecution is.
The case against the J20 protesters–over 200 people who were kettled and mass arrested because they wore the same colours as someone who broke a window–has been repeatedly described as “unprecedented.” For starters, there is the simultaneous charge of both conspiracy to commit rioting and having committed the riot itself. Instead of evidence of intent factoring into sentencing provisions, the prosecution, by pressing both, is trying to bilk the defendants for a maximum sentence of 20 years instead of 10.
This is on top of the evidence for the third felony charge–inciting a riot: “Anti-capitalist slogans.” Also a 10 year max sentence. The indictment clearly describes that there were half a dozen defendants who are alleged to have actually carried out property destruction, so it is unclear how the half dozen could be accused of inciting the riot, or the 194 alleged inciters of committing it.
Yep, those freeze peachers will be here any second now, I’m positive.
Lastly, the five counts of property destruction (5 years max a piece) clearly name which defendants they accuse of directly perpetrating the action, and yet the prosecution has gone ahead to press all five charges to all 200 odd defendants. This includes a defendant who didn’t actually participate in the protest, but merely organized it.
And they’re being tried collectively. (emphasis added)
In the haze of the growing national conversation on free speech, organizing tactics, and state repression, one event has been nearly lost in wider the discussion: what happened to protesters who came out onto the streets of Washington, D.C., on January 20, also known as J20.
Aggressive police tactics, mass arrests, and blanket felony charges against protesters have become an aside in light of recent events, despite the tremendous weight of criminal prosecution still in progress. While police violence is certainly nothing new, the way in which the press has handled the targeting of J20 activists is an indictment of how the media often acts as stenographers, simply regurgitating the state’s language. It is also an indication of how resistance will be handled by Donald Trump’s administration, and how that will impact organizing in the years to come.
One of the J20 defendants, whose identity is being withheld so they could speak freely about their pending case, tells Shadowproof the accused are being tried in groups. “I have no idea how that’s supposed to work or how I can be responsible for what seven other strangers who will be tried alongside me did, and we may file a motion to sever. The livestreamer going to trial in November, Alexei Wood, is attempting to have his trial severed from the group, but the government is opposing his motion.”
“My feeling is they know the cases are bullshit and that would be evident if they had to try people individually,” the defendant said. “That’s why they have the conspiracy charge. The prosecutor stated in the recent arguments for the collective motion to dismiss that ‘it is the group that is the danger, the group that is criminal.’”
“I’m worried the cases have gone as far as they have because it means the judges are finding legitimacy in the theory of conspiracy presented by the prosecutors. I’m terrified but having my fingers crossed that public outrage can do something.”
So one reason I am thoroughly unconvinced that anyone standing up for the speech of white supremacists is doing so “on the principle of free speech” is that they’ve been completely apathetic to the J20 case–despite the fact that the precedents, if they are accepted, would undermine the ability to organize at all. You would be criminally liable for the actions of people who are not yourself. Simply supplying logistics at a protest that goes haywire could get you indicted. And if you happen to just be in the wrong place at the wrong time, you’re a conspirator! Every civil rights movement henceforth would be hamstrung from the outset. The FBI wouldn’t need to fabricate evidence at all. I cannot understate the severity of this case.
If served consecutively, the maximum sentence for this ticket is at least 55 years, and potentially more depending on how the prosecution can finagle the charges.
I’m sure I’ll see the freeze peachers at the next action.
Read more about the egregious conduct of the prosecution here.
-Shiv
As one old Polish protester said, on some podcast I was listening to: “We had free speech under the Soviets. What came after, however…”
I don’t see how collective trial is even constitutional, but nobody takes that constitution stuff seriously, when the constitution itself is at stake! Or something.
This vaguely reminiscent of the “hang an anarchist” approach that was popular in the 1880s. Because there’s no better way to show anarchists that the state is not just an authoritarian facade than by grabbing a few and hanging them.
PS – I’m not exactly one of the frozen peachers. I’m more with Rousseau, that when either side dissolves the social contract, then there is no longer a legitimate government. At the time, Rousseau was criticized for writing a blank check for revolutionaries; it took the “American Experiment” to warp his argument into a unilateral contract.
@1 Marcus Ranum
I suspect it has its roots in the reconstruction of conspiracy laws to include gang affiliations. Standard ALL THE SALT disclaimer–while I’m trying to disentangle aspects of Canadian criminal law, that doesn’t mean I know shit about American law. But I vaguely recall some kind of law being proposed to consider gang affiliations as some kind of evidence, or crime, or mechanism to get the “whole lot” in court. I’m doing a lot of homework for Canada and its construction of conspiracy law and its implications for the health of a democracy, but a lot of that probably doesn’t transfer to ‘Murrica.
If the need for individualized evidence were constitutional, that would have been the point to challenge it. But if I am remembering correctly about conspiracy/gang affiliations, then I suspect no severances from the group trial will be allowed under the same precedent.
I wonder what the jury will do. Prosecution freely admits it can tie only 6 people to property destruction. Are they supposed to turn in a guilty verdict if it affects the other 194 defendants? Same with the slough of rioting charges. I don’t doubt Kerkhoff will try to twist the most benign shit as evidence of conspiracy to riot, but there are literally like 120 people whose only point of evidence is that “they were there,” not to mention the one defendant who was not even present during the alleged crimes.
I wonder what the jury will do. Prosecution freely admits it can tie only 6 people to property destruction. Are they supposed to turn in a guilty verdict if it affects the other 194 defendants? Same with the slough of rioting charges. I don’t doubt Kerkhoff will try to twist the most benign shit as evidence of conspiracy to riot, but there are literally like 120 people whose only point of evidence is that “they were there,” not to mention the one defendant who was not even present during the alleged crimes.
I doubt they really expect to win the case – they’re just using the judicial system punitively: to threaten the protesters and cost them a lot of money and time.
If what I hypothesize is the case, then they are deliberately abusing the system. Quick, help me to my fainting couch!! Wake me up when they use similar legal arguments against white supremacists or capitalists.
Collective trial isn’t always bad for the defendants. In particular in cases of conspiracy, the state must not only prove that you talked with others about taking illegal actions, but that someone actually went ahead and took that action (or some action in furtherance of that ultimate action, where the action in furtherance was itself illegal – such as conspiracy to commit murder charges where no one actually succeeded in murdering anyone, but one member of the conspiracy did smuggle a firearm illegally for the ultimate purpose of committing the murder).
If you’re tried separately, then you have greater rights to challenge evidence that you actually participated in conversations about organizing a crime than you do to challenge evidence that your friend Alex actually went ahead and took an illegal action to prepare for committing the ultimate crime. If the government tortured Alex to get Alex to “agree” to a search without warrant, Alex has greater rights to exclude the evidence and associated testimony than you do. If you are tried together, the protections Alex enjoys also protect you.
Because of circumstances like this, it is not considered inherently unjust or inherently unconstitutional to try people together in a group. It is more likely, generally, to benefit the prosecution (and the prosecution controls whether charges are initially filed together or separately), but the courts have decided that it is not so cut-and-dry that the practice should be entirely prohibited. Instead, individuals are force to apply to the court to sever their case from the cases against others and generally have to provide some evidence or argument that it would be unfair and/or unjust to continue jointly. Though it’s nothing like a “beyond a reasonable doubt” standard, the burden is placed upon the defendant to prove that moving forward jointly will harm that defendant.
It’s pretty fucked as a general practice, but it’s not unconstitutional and reasonable people can agree that there are at least a few foreseeable instances where it would be better for the individual to be tried with the group.
Of course, I no more trust prosecutors with this power than I do with their power to force plea bargains (especially but not only through their influence over bail).
While we have your ear, Crip, how the hell do you return a verdict in group trials if you’re in the jury?
I’m occasionally mistaken as a freeze peacher. I’m personally horrified by this case. It’s surreal. I also strongly suspect that if and when this case goes to a higher federal court, it will be laughed out of the room, and any convictions will be overturned. God damn it will be “inconvenient” for these people in the meantime.
This. Quoting for emphasis.
I was about to mention something about that myself. So-called civil gang injunctions are a travesty of justice and the federal constitution.
@Shiv:
Procedures exist to present evidence all at once for the defendants, but when the jury deliberates after arguments close, there will be a separate set of jury instructions for each defendant. If the underlying crime is “Willfully removing a cookie from the cookie jar” with most of the defendants accused of “conspiracy to willfully remove a cookie from the cookie jar” the will receive a set of nearly identical papers for most of the defendants, but they are nonetheless different papers with only one defendant’s name at the top. The instructions then list elements of the crime and ask one by one if each element has been fulfilled.
“1. Has it been proved beyond a reasonable doubt that Defendant X participated in conversations during which a plan was hatched to remove at least one cookie from the cookie jar?
1a. During that participation, HIBPBARDT dX intended that the outcome of those conversations, from the perspective of dX, be the removal of one or more cookies from the cookie jar?
2. HIBPBARDT a cookie was ever in the possession of any member of the conspiracy group?
3. HIBPBARDT the cookie from question 2 actually originated from the cookie jar?
4. Was removal from the cookie jar effected by a member of the conspiracy group, or did intervening persons or circumstances cause the removal?
5. Was the removal of the cookie from the cookie jar the intended outcome of that member of the conspiracy group, or did the member somehow cause a cookie to be spilled from the cookie jar without intending that outcome?”
etc. etc.
So each sheet is separate, but in a conspiracy case, most of the questions will be the same. Only proving that Defendant X actually took part in the conversations and intended that the underlying crime would at some point be performed by some member of the conspiracy requires separate and distinct evidence for each member of the conspiracy. Note that this is a rather vague representation of the legal concept of conspiracy because what is needed to prove conspiracy varies in different jurisdictions, but the point of this example isn’t the elements of conspiracy. It’s that **in theory** each defendant must be proved guilty separately while **in practice** most of the questions required for conviction are the same questions and answered using the same evidence.
Many conspiracy trials can be found with not guilty verdicts for some alleged members while others still are convicted at the same collective trial. So presumably it is possible for a jury to properly perform this task of distinguishing the questions whether there was a crime and whether there was a conspiracy from the question of the positive participation of a particular person. I don’t know of a large data-collection scheme on how often this happens, but I’d be surprised if it was particularly common and further surprised if the differing results weren’t frequently dependent upon a lawyer getting different jury instructions inserted for their own client that weren’t inserted for other defendants.