Judge: No, wearing all black isn’t ‘inciting a riot’

The six initial defendants in the "Disrupt J20" trials still face well over half a century in prison if convicted of the remaining counts.

Protesters and cops on Inauguration Day in Washington, D.C., where federal prosecutors seek hundreds of felony convictions against people they acknowledge did not personally smash a window or assault an officer. CREDIT: AP Photo/Jose Luis Magana
Protesters and cops on Inauguration Day in Washington, D.C., where federal prosecutors seek hundreds of felony convictions against people they acknowledge did not personally smash a window or assault an officer. CREDIT: AP Photo/Jose Luis Magana

WASHINGTON, D.C. — A day that began with elation ended discouragingly for six young people who face decades in prison for being present at anti-Trump demonstrations on Inauguration Day.

On Wednesday morning, lawyers for the six won Judge Lynn Leibovitz over to their argument that government prosecutors have failed to offer sufficient evidence to support one of the eight separate charges in the case.

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Calling the government’s argument for keeping the incitement charges “utterly circular,” Leibovitz struck them from the case. The decision still left seven other charges in place for each defendant, including multiple other felony counts. But in striking the felony incitement charge over Assistant U.S. Attorney Jennifer Kerkhoff’s objections, the judge significantly reduced the maximum penalties each defendant faces should jurors find them guilty.

“Personal enthusiasm for destruction of property is different to encouraging destruction to occur”

“The defendants arrived with the organized and agreed upon clothing,” Kerkhoff told Leibovitz in arguing to keep the inciting charge. “This was not spontaneous walking into the street,” she said, arguing that the defendants’ choice to join the Disrupt J20 march clad in black inherently encouraged others to engage in riotous acts later in the day.

“I appreciate your argument but I disagree,” Leibovitz said. “I don’t agree that the state of mind of wanting a riot to occur is equal to the state of mind of aiding and abetting the incitement of a riot to occur.” Moments later, she added that even “personal enthusiasm for destruction of property is different to encouraging destruction to occur.”

The charge carried a maximum sentence of 10 years imprisonment because of the total cost of damage caused by the individuals who smashed windows as the six defendants in court Wednesday walked nearby.

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But the remaining counts still add up to maximum sentences well north of half a century in prison. And even as she voided the incitement charge, the logic Leibovitz expressed in court foreshadowed the gloomier outcomes for the defendants’ other motions to shrink the case.

After hearing both sides out on six different versions of the same quarrel, Leibovitz took about three minutes to quietly review her notes as the court waited silently. Then, in a 53-minute oral decision from the bench, she denied each motion to rip up the other charges in the case. Jurors must be allowed to decide the five felony counts of destruction of property, misdemeanor charge of conspiracy to riot, and a felony charge of engaging in a riot, she ordered.

A “reasonable juror” could conclude that the evidence presented by federal attorneys is sufficient to find the six guilty, she said.

“This might be a generational problem [but] what am I supposed to take from their apparent indifference to violence?”

“The group was coalesced in the street pretty thick, pretty swarm-like, and at that point there was certainly enough violence happening that any person there, in broad daylight, could be aware things might escalate,” she said. Because the marchers who massed at Logan Circle that morning could have chosen “other alternative gatherings” to protest the new president, a reasonable juror could conclude “the persons who gathered there were clearly in a conspiracy.”

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Technically, Leibovitz was not expressing her own judgment of defendants’ guilt or innocence. A ruling on defense motions to eliminate charges from a case before jurors deliberate requires the court to consider all evidence “in the light most favorable to the prosecution” and serves as a kind of stoplight in the case. The question was whether prosecutors had offered sufficient evidence for the remaining charges, not Leibovitz’s own opinion of guilt or innocence.

But at various points across hours of argument and the lengthy ruling from the bench, the judge seemed to signal that she would vote to convict if she were among the 12 citizens who will decide the case.

“This might be a generational problem I’m having,” Leibovitz said at one point, expressing dismay that marchers in the video “seem entirely non-plussed by some pretty serious violence” in her view. “What am I supposed to take from their apparent indifference to violence?” she said.

One lawyer showed the judge another snippet of video from the closing moments of the march, in which defendant Brittne Lawson can be seen walking as police deploy pepper spray and shout “Move! Move!” from behind her.

The aim was to show that Lawson, a trained street medic who marched in a white helmet marked with a red cross, could not have simply departed the scene at that time. But the judge was unmoved.

“So why not just be done at the bus shelter?” she said. “This is too much for me, just stop.”

She was similarly cold to the notion that protest medics require different evidentiary standards in order to give jurors the chance to jail them for decades.

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“Once a riot is occurring and she is a medic tending to people engaged in a riot, isn’t she aiding and abetting?… Are you saying that unless she actually put a bandaid on somebody, she wasn’t aiding and abetting?” she said. “If two guys in black masks and hoodies rob a 7/11, it doesn’t matter if one of them was also there to buy a Gatorade.”

“All the government has shown during the riot is she walked and carried a first aid kit”

Here it might have made sense for an attorney to remind the court that the Metropolitan Police Department never issued a single order to disperse, despite department rules requiring such an order be given clearly and repeatedly when on-scene commanders determine that a First Amendment-protected protest has morphed into an unlawful assembly. But Lawson’s attorney, Sara Kropf, declined to offer that argument — perhaps sensing Leibovitz was fixated on the idea that marchers should have been aware and appalled by violence at the edges of the group, and dispersed voluntarily.

“All the government has shown during the riot is she walked and carried a first aid kit,” Kropf said. Lawson’s “mere presence is not enough” to sustain the charges of rioting and conspiracy that put each defendant on the hook for the property destruction they did not personally commit, she said.

Soon after, Leibovitz issued her lengthy ruling. The remaining charges – with their several decades of potential imprisonment – will go to the jury.

Predicting a jury’s mind might work in the movies, but it’s folly in real life. After weeks in court with the 15 men and women empaneled to hear this case, reporters in court have seen boredom, laughter, frowns, nods, and one quirky moment where jurors frantically signaled to court officers that a librarian had left her purse behind after leaving the witness stand. But how they might decide the case is anyone’s guess.

Late Wednesday, the court turned to the nitty-gritty questions of how Leibovitz will instruct jurors to complete their work. Closing arguments are set to begin Thursday.