Prosecuting the prosecutors

The protestors who were acquitted of all charges for actions during Donald Trump’s inauguration are now pressing for action against the prosecutors. According to Sam Adler-Bell, they are turning the tables on the people who brought charges against them, accusing them of prosecutorial misconduct for the extraordinary lengths they went to expand the number and seriousness of charges, to the extent of including people who just happened to be there as being complicit in the actions, and also for withholding evidence that was in the defendants’ favor.

While the U.S. government may be finished with the J20 prosecutions, however, J20 defendants are not done with the prosecutors. Amid the celebrations, the defendants and advocates are turning to a new task: holding prosecutors accountable for their conduct at trial — and for the unnecessary anxiety and ambient trauma suffered by the defendants.

Several former defendants told The Intercept that they plan to file formal complaints against Assistant U.S. Attorney Jennifer Kerkhoff, the lead prosecutor in the case, with the District of Columbia Office of Bar Counsel. Among those working with advocates on such complaints are the former defendants Isaac Dalto, Elizabeth Lagesse, Dylan Petrohilos, Anthony Felice, Rudy Martinez, and Olivia Alsip. Meanwhile, the American Civil Liberties Union has filed suit against the Metropolitan Police Department for its behavior during the protest.

“This isn’t over,” said Sam Menefee-Libey of the D.C. Legal Posse, which has coordinated support for the defendants. “We want to make sure Jennifer Kerkhoff, the MPD, and the whole D.C. U.S. Attorney’s Office face consequences.”

THE J20 PROSECUTION had been something of a slow-motion disaster for Kerkhoff. Her prosecution ended unceremoniously, with no convictions at trial and a handful of embarrassing incidents along the way.

After D.C. police arrested some 234 protesters, journalists, medics, and legal observers on January 20, 2017, the U.S. Attorney’s Office made the unusual decision to charge hundreds of people for acts of vandalism committed by a small handful. “A person can be convicted of rioting when they themselves have not personally broken a window or personally thrown a rock,” Kerkhoff told the court in July 2017. “It’s the group that’s the danger. The group that’s criminal.”

That is an extraordinarily expansive view by which even photographers and medics and even curious bystanders can be accused of rioting.

It was a defendant who found out that the prosecutors had doctored the evidence.

“I WANT TO see Kerkhoff disbarred,” said Elizabeth Lagesse, another defendant whose charges were dismissed on Friday. “In my view, everyone in D.C. under her jurisdiction is in danger.”

Lagesse spent countless hours scrutinizing the evidence in her case. It was her close examination of the metadata associated with the Veritas videos that first clued her lawyer, Phil Andonian, to the fact that portions had been edited out. Lagesse said, “That’s what you get for indicting a slightly OCD, unemployed data scientist.”

Kerkhoff’s failure to reveal the existence of nearly 70 potentially exculpatory recordings — all while leaving “a clear impression that there was only one video,” as Morin put it — resulted in sanction in court; the judge dismissed conspiracy charges for the remaining defendants.

The actions by the Kerkhoff and other prosecutors in this case were so bad that they were chastised by the judge. Unfortunately, this is rare. Prosecutors in the US, like the police, far too often get away with highly abusive, unethical, and even illegal behavior.

According to a 2013 report by the Center for Prosecutor Integrity, fewer than 2 percent of prosecutorial misconduct cases are subject to public sanctions. When sanctions are imposed, they’re usually no more than a “slap on the wrist,” the report says.

The most common violations are those involving the so-called Brady rule that “mandates that, as part of pretrial exchanges, defendants are entitled to access information that might be helpful to their cases.” Adler-Bell discusses in great detail what this rule requires and how prosecutors often get away with violating it.

Even when Brady violations are exposed, they usually go unpunished — because the government can always claim negligence. “The prosecutor will say, ‘Oh, you know we had so much evidence in this case, I just overlooked this. I forgot, it was a mistake, it was inadvertent,’” said Gershman. “To impose discipline, you usually have to show that the prosecutor did it deliberately. And that’s hard.”

GERSHMAN, THE LAW professor specializing in government misconduct, said that the prosecution’s behavior in the J20 case is disgraceful but not surprising.

“This was a big case. This was a case they had to win, they wanted to win. And when you want to win bad, you cheat,” he said referring to the Brady violation. “The prosecutors in this case cheated, and they got caught. And now the question is: What’s going to happen to them?”

The real problem, he said, is a system that grants prosecutors unchecked power. “The prosecutor has the power, in effect, of life and death, freedom and unfreedom. The prosecutor has the greatest power of any government official, and she enjoys almost absolute discretion in how she exercises that power.”

“If prosecutors can violate the rules with such impunity in a case like this,” Gershman said, “think of how frequently — in the hundreds of thousands of cases involving anonymous, poor, uneducated, minority defendants — prosecutors violate the rules to win.”

The Brady rule is an important part of getting justice for defendants. During the course of investigation of a crime, police will uncover all manner of evidence, both in favor of defendants and against them, that they hand over to prosecutors. Defendants and their lawyers have nowhere near the ability to get this information independently. If prosecutors share only the incriminating evidence and suppress the exonerating ones, then they are stacking the deck and the defendant will not be getting a fair trial.

Prosecutors have a great dal of power and must be held accountable and suffer the consequences of misbehavior if the system is to be cleaned up and true justice is to prevail.

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