WASHINGTON, D.C. — A J20 protester tried for assaulting a police officer in the chaos of Inauguration Day 2017 was found not guilty Thursday, marking a significant evolution in the string of losses that federal prosecutors have taken in the series of trials.
Anthony Felice is not out of legal jeopardy yet, however, as the jury pronounced itself hopelessly deadlocked on the other nine charges he faced, including the same string of felonies the government has sought against each of the people arrested on the day of the march. Judge Kimberly Knowles declared a mistrial on the other charges and instructed Felice to return to court for a status hearing in mid-July.
The deadlocked charges are based on a conspirary-to-riot theory that defense lawyers argue is hopelessly tainted by prosecutorial misconduct in the cases. But Knowles said she does not have enough information from the one trial group she’s presiding over to rule on whether or not Assistant U.S. Attorney Jennifer Kerkhoff’s concealing of video evidence could justify defense motions to toss the Felice case entirely.
That decision frustrated Felice’s attorney, Matthew Rist, who called it a “travesty” that the government has not yet had to answer for Kerkhoff’s decisions. Knowles’ peer, Chief Judge Robert Morin, tossed out charges against 10 other defendants and barred the government from using the conspiracy argument that provides the key link to seek collective punishment for anyone present when some in the march smashed shop windows and battled with police.
The concealed videos constitute a Brady violation, the lawerly nickname for when a prosecutor fails — maliciously or by accident — to share information that could help a defendant in court. Kerkhoff’s Brady violations are unusually broad and serious, in large part because she personally affirmed in open court that no further videos existed beyond the ones she has been referring to in multiple cases over the past year.
There are in fact 69 other videos and audio recordings, the government admitted to Morin’s court last week.
Felice’s acquittal, and ongoing legal limbo on the remaining charges, is likely to be resolved before his July 11th status hearing, Knowles said from the bench Thursday. Morin and other judges tied to the scheduled trials of more than 40 other J20 marchers have yet to establish whether his rulings in last week’s cases will extend to others. But it is likely that all of those cases are tainted by the same Brady violations, as defense lawyers were denied full and potentially exculpatory information on the pre-march planning meetings that Kerkhoff has used as the basis for her conspiracy case thus far.
UPDATE: Also on Thursday, Knowles declared a mistrial on all charges facing defendant Michael Basillas, who had similarly been accused of specific acts of property destruction. The same jury could not reach a verdict in either direction on any of the charges against Basillas. The government theoretically can still go after them on retrial later this summer — though there, too, the specter of Kerkhoff’s Brady violations looms.