Government prosecutors have given up on their felony pursuit of eight additional members of a 2017 Inauguration Day protest march, according to a Wednesday afternoon court filing.
Prosecutors from the U.S. Attorney’s Office for Washington, D.C. asked the court to dismiss the cases with prejudice, an unusual move to not only surrender cases they’ve spent 17 months building but to prohibit themselves from pursuing them anew in future.
Out of more than 200 people the government initially sought to imprison for years for being present when some in the march smashed shop windows, 18 have now had their cases dismissed with prejudice while seven have been fully acquitted. Two others were acquitted on some charges, and three have seen some or all of their charges mistried after jurors deadlocked. Another 129 had their cases dropped earlier this year following the unanimous not-guilty verdicts across the board in the first trial last December. Zero have been convicted in court, though a few accepted plea deals to avoid trial.
Attorneys for several of those still facing trials in July, August, and September told ThinkProgress that they have not heard anything from the government about those still-pending cases.
The group let out of legal jeopardy in the Wednesday filing includes Elizabeth Lagesse, one of the named plaintiffs in a separate lawsuit against the District and its police department over alleged law enforcement misconduct on Inauguration Day. Phil Andonian, Lagesse’s defense attorney, told ThinkProgress that the unusual dismiss-with-prejudice motion against the prosecutors’ own case also seems to hold the door open for further legal wrangling over an unforced error by government prosecutors that might have killed their last hopes of winning convictions in any of these cases.
Assistant U.S. Attorney Jennifer Kerkhoff acknowledged last month that she had knowingly withheld video and audio evidence from both defense attorneys and the court in the cases, which have been dubbed #J20 by a legal support group seeking to assist those accused of rioting. As first reported by ThinkProgress, Kerkhoff concealed more than 60 separate recordings from a pre-protest training session that had been provided to the government by staffers with the notorious right-wing sabotage outfit Project Veritas.
Chief Judge Robert Morin angrily dismissed charges against 10 other defendants at that time, including a with-prejudice dismissal of the central conspiracy charge that ties the government’s cases together across each of the 40-plus remaining cases.
Wednesday’s surrender includes language suggesting the government intends to re-fight that evidence-withholding battle despite losing it in May, Lagesse’s attorney said. In it, Kerkhoff wrote that she “believes that a full review of the record will likely impact the Court’s prior finding,” but concedes that the group facing a late-June trial date should be sent home for good.
“It’s a weirdly worded motion,” Andonian said. “They are promising, as they’ve been doing vaguely for the past two weeks, that they’re going to…contest Morin’s finding that Kerkhoff misrepresented on the record.”
Kerkhoff had previously told Morin in open court that no further video recordings from the training and planning meetings existed — an untruth that multiple attorneys in the case have said caused the usually-evenkeeled judge to become visibly angry with prosecutors. Relitigating Morin’s finding that Kerkhoff had committed what’s called a Brady violation would be odd, Andonian said, given that the government had already failed to secure a single conviction across multiple trials even before the Brady issues came to light. Winning a second duel over Kerkhoff’s conduct would be unlikely to salvage the remaining cases, he said, but it might help save her from professional consequences.
“It’s beyond me why the U.S. Attorney would want to keep wading back into this fight,” Andonian said, “unless they feel like they have to do something to save Jen Kerkhoff’s bar card.”
This was a breaking news story and has been updated with additional context.