WASHINGTON, D.C. — Irony lives. Just ask the almost 60 anti-Trump protesters who were arrested on Inauguration Day in 2017 and are still awaiting their trials.
Prosecutors have argued that protesters seeking to shield their identities for fear of political reprisal are doing something wrong, but on Wednesday, they won a shock delay in the case specifically because their own expert witnesses are struggling with similar questions of anonymity and online reprisals.
From an initial group of more than 200 people who faced felony rioting and destruction of property charges in the case, 59 defendants are left. Six were acquitted on all counts in December, a defeat that prompted the U.S. Attorney’s Office and lead prosecutor Jennifer Kerkhoff to drop charges against more than 100 other people.
The next group trial was set to begin next week, almost exactly 15 months after a handful of protesters smashed store windows and scrapped with cops. The judge’s surprise ruling on Wednesday knocks the start date back to early June — and keeps the defendants’ lives in disarray for at least another couple months on top of the year-plus of disruption they’ve endured already.
One of the five accused present on Wednesday has had to put work on hold to commute down from Baltimore for hearings going back to last spring, his lawyer said. Another, Elizabeth Lagesse, was just a few weeks away from moving to the West Coast and starting a tech career when she joined the Inauguration Day march and wound up facing decades in prison for being nearby when people smashed windows.
“I have had my life entirely on hold for the past year. I’ve had wedding plans on hold. It’s put strain in all my relationships. My friends and family don’t understand this,” Lagesse told ThinkProgress in January, when Kerkhoff dropped 129 charges but kept Lagesse’s name on her target list.
“She just dropped charges against 129 people who lived for a year in fear of decades in prison. Every night they went to bed thinking about that, their family, their friends all had to live with that dread. She dropped the charges on a whim, and now she’s never going to face any kind of sanction,” Lagesse said. “She might get in trouble with her boss but there’s no legal recourse.”
The request for a delay exasperated the cluster of lawyers at the defense table Wednesday, who have shuffled personal and professional calendars repeatedly to make space for an April trial in a high-profile case that touches on central civic values: free expression, free assembly, political dissent, and the line between First Amendment activity and criminal violence.
The government’s cases here hinge on the idea that the protesters formed “a sea of black masks,” as Kerkhoff put it in December. Though the defense was not allowed to argue that the masks were a necessary protection in an age when online amateur sleuths sit ready to “doxx” political opponents so they can be threatened and harassed over their political views, Kerkhoff’s argument still didn’t carry.
The jury in that first case acquitted all six of the defendants who served as guinea pigs for the complicated, expensive, time-consuming, and bizarre set of cases the Justice Department has opted to bring against the demonstrators. Kerkhoff tweaked her recipe for the new slate of trials after jurors from the first case apparently told her that an expert witness might have helped them see things her way.
But now prosecutors can’t find an expert witness who’s willing to testify under their own name, after the same judge rejected a motion to allow the government’s expert to use a pseudonym. The government’s anonymity request noted Kerkhoff herself has been targeted with ugly mailings to her home.
The government feared — much as the protesters they’ve targeted might have when the wore a mask to protest a president famous for his violent fans — the expert might get harassed or worse if their identity were public. But had their expert witness in the first December trial been allowed to testify anonymously, it might never have come to light that the detective had shared pro-Trump and anti-protester views online.
The judge’s rejection of the pseudonym request apparently set off a scramble in Kerkhoff’s office, as at least three potential expert witnesses have dropped out. The government now has until the end of April to name the expert witness they’ll field.
Asked if he cared to impose a similar deadline on pre-trial motions, though, Judge Robert Morin managed to put the day’s surprise proceedings into still weirder light.
“The only problem with setting deadlines,” Morin said, “is nobody adheres to them.”