This past week we had the first round of actual status hearings, which lasted longer than five minutes and in which the judge did things: trial dates were set for Group 1 defendants, and a few motions were ruled on. This hearing, of course, happened on the same day that the prosecution revealed its obscene superceding indictment, in which up to eight further felony charges were added to each defendant; they also indicted three additional people. This draconian tactic is one that prosecutors use to force plea agreements. The criminal legal system depends on such scare tactics to resolve about 95% of cases through plea agreements, which just goes to show that the system enforces repression and coercion, not the pursuit of justice. The Supreme Court even agrees with us on this one: see Lafler v. Cooper, 132 S. Ct. 1376, 182 L. Ed. 2d 398 (2012).
The only reasonable thing the prosecution did is drop charges against three defendants. We suspect (huge caveat: speculation follows) that this is probably part of the state’s divide-and-conquer tactic now that conspiracy charges have been added. What has happened in some previous cases involving a superceding conspiracy charge is that the prosecutor drops people whose situations might make the state’s narrative of conspiracy less plausible. Dropping those charges eliminates potential evidence from the defense that could make the jury acquit all the defendants. Now, we don’t know that this is true: we’re just guessing based on prior cases we’ve witnessed. But what we do know is true is that everyone standing in solidarity with each other gives the best chance of fighting these charges.
Now for some good news.
Post-Hearing Roundtable with Group 1 Defendants
We had our first post-hearing confabulation with defendants, which despite being our very first was extremely successful. MACC Legal was there, along with support folks from North Carolina, Pittsburgh, and a number of folks from DC. The number one take-away from this meeting was that the group who met was strongly in support of defendants staying in regular communication with one another.
At the roundtable, defendants affirmed their commitment to the points of unity (published here: http://defendj20resistance.org/defendants) and discussed the structure of collaborating on legal and political strategy going forward.
Friday’s Hearings …
… went on forever. Two dates were established for Group 1 trials in March 2018, as well as July status hearings. There will also be a status hearing/motions hearing in January 2018.
Leibovitz then finally addressed several motions:
- The motion for a bill of particulars for each defendant was dismissed in the instance of the two defendants who filed it, but it was dismissed without prejudice to refile or move to compel—which means that other attorneys can, in fact, file motions for a bill of particulars for their individual clients.
- Leibovitz also denied the motion to disqualify the U.S. Attorney/DOJ for conflict of interest (the theory being that these charges are in connection with the inauguration of Trump, who is now their boss). For the legal geeks: she cited Silva Rosa, 275 F. 3d 18. and U.S. v. Kahre, where more particularized interests of the prosecutor were involved and denial of disqualification was nonetheless withheld.
- Three defendants’ attorneys previously filed a motion to disclose the grand jury materials, which was awesome. We would love to see more of that. However, there was a question about whether that was superceded by the superceding indictment—Leibovitz tried to get the attorneys to agree with her that the superceding indictment made the motion moot, but they would not agree. Leibovitz ultimately reserved a ruling on that motion. What followed was a discussion of how two theories of rioting have been separated out, urging/inciting (subsection (d)) and engagement with property damage (subsection (b) misdemeanor and (d) felony). There is an acknowledged question about the construction of subsection (d). The defense wants to know how Kerkhoff presented the riot act to the grand jury. It’s unfortunately too soon to say if the disclosure of grand jury transcripts is mooted. The judge deferred ruling and agreed to consider the matter further. What’s at stake here is that it looks like Kerkhoff is basing her theory of the case on prior legal history, not the actual statute.
- All but one attorney made a motion for a protective order, but it seems like these issues will affect all defendants. This all relates to the data the government has retrieved from some phones (not everyone’s, we learned. Three cheers for encryption! Encrypt your fucking phones: https://ssd.eff.org/en). The primary conflict here is between privacy and Brady evidence—that is, exculpatory evidence that the prosecution is required to disclose to you. Defendants and their lawyers obviously want to know what evidence will be used in the government’s case, but they also don’t want the entire contents of the phone disseminated to the world, or even hundreds of defendants. As per usual, Kerkhoff complained about having to go through all of the data and identify what’s Brady material, especially if it’s the absence of something (e.g., there’s a long message thread including 10 people that is planning the action, and another defendant never interacts with those 10. That absence is potentially exculpatory.) But she also does not want to get hit with a Brady violation, because despite pursuing this case, she appears to adhere to some forms of logic. Leibovitz offered a “first salvo” at addressing this:
The government will disclose to each defendant the contents they have of his/her own phone. Within those contents, the government will identify by category (a) what evidence they intend to use for their case in chief; (b) what materials they deem to be clearly Brady, Winfield, or otherwise disclosable to another defendant; and (c) what they deem easily excludable from disclosure (e.g., vacation photos). This was basically a back and forth between balancing what might be Brady for one person (exculpatory) or Winfield for someone else (third party evidence that may be admissible/relevant). Counsel will have 30 days to object, and can request another 30 for good cause shown. Once this is litigated, defendants can get information about what may be available to them from others’ phones. There will be status hearings on phone discovery, to which defendants will be required to travel.
Plea Deal Update
One defendant, who was facing the most felony charges of anyone, took a plea deal on Friday. His sentencing will be in July. Initially, the state had wired this plea deal to his partner’s (a strategy they also used in another plea that was offered, but not taken), but they unwired it a few days before it was due to expire. A wired plea deal is one that a defendant can only get if another defendant also pleads guilty to a charge. We trust both in the defendant and his attorney’s judgment in taking the plea deal, as only they know the specifics of this case. Moreover, the prosecution has waived their right to ask for the maximum sentence in allocution, which would have been 20 years. Instead, they will defer to the sentencing guidelines, the results of which will hinge largely on if those sentences can be served at the same time. The worst case scenario would be six years in prison, while the best would be one year in supervised probation. We are rooting, obviously, for the latter.
Also included was a signed statement of facts, which included information about his partner. However, everyone involved (both lawyers, both defendants) looked over the statement and don’t believe it can be used against the partner, or any other defendants.
Joint Defense Group (“Lawyer League”) Update
We met with the core group of attorneys coordinating the Joint Defense Group (henceforth known as the “Lawyer League” for alliteration and reduction in syllables). They’ve gotten most attorneys on their listserv, but every defendant should be asking their lawyer to participate. They are pooling their resources to craft motions, make filings, strategize, and study case law. They are making all of these motions available to attorneys, so that your lawyer has the opportunity to sign on (“Me too!”) or even to tweak the motion with additional argumentation (“Me too, and also—”). Write to us to get the contact information for the Lawyer League point person.
For those seeking new counsel, the Lawyer League leaders are reaching out within the group and to larger firms in DC to ask whether they would be willing to take on new or additional clients. Additionally, if you currently have a court-appointed attorney (“CJA”) about whom you have qualms or issues, please reply to this email letting us know your name, theirs, and the reasons you’re unhappy. We are reaching out to the CJA panel coordinators as needed. We hope this will solve many lackluster lawyer issues.
Please, please, please! Hook your lawyer up to the Lawyer League. Be active in your own cases, and talk to your lawyer. We love you all.
Oh, and happy belated May Day!
Love & solidarity,
The Dead City Legal Posse