DOJ Still Wants To Lock People Up For Protesting The Government, Or Even Just Talking About It

from the thoughtcrime dept

The government is still trying to land a conviction from its mass arrest of participants in last year’s Inauguration Day protests in Washington, DC. So far, it has nothing to show for its efforts but a far-too-casual disregard for civil liberties.

The prosecutions began with the government’s breathtaking demand for the personal info of all 1 million+ visitors to the Disrupt J20 website. From there, things did not improve. The government’s prosecutors accused protest participants of “hiding behind the First Amendment” while attempting to strip away First Amendment protections. One of those charged by the government with rioting was journalist Alexi Wood, who had filmed the protests and had the footage to show he wasn’t a participant in violent or destructive acts.

The government compounded its unconstitutional behavior in court when its lawyer (Jennifer Kerkhoff) tried to downplay the significance of a foundational part of our justice system — that the accusers must prove “beyond a reasonable doubt” the accused committed a crime.

Kerkhoff: The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the Judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot. But look at the last line.

The Court: So wait…

Kerkhoff: I apologize.

The Court: I know she didn’t mean to say what she just said. But —

Kerkhoff:: It means a lot.

The Court: I just need to say, ladies and gentlemen, you will be instructed on reasonable doubt. You must follow each and every word of my instructions on reasonable doubt.

Kerkhoff: Yes.

The Court: Ms. Kerkhoff did not mean to trivialize any portion of it, and it’s just as important that you understand —

Kerkhoff: I apologize.

The Court: — that every word of the reasonable doubt instructions, like all the rest of my instructions, are very important.

Kerkhoff: It’s an important instruction.

After these horrendous actions and the acquittal of its first batch of J20 prosecutees, the DOJ is finally going to attempt something a bit more targeted.

After a DC Superior Court jury acquitted the first group, prosecutors announced they were dropping charges against 129 remaining defendants, saying they would focus on defendants who allegedly engaged in “identifiable acts of destruction, violence, or other assaultive conduct,” who planned violence, or who participated in “black bloc” tactics to aid the property destruction that day.

Unfortunately, that still leaves a whole lot of defendants. The prosecutions began with more than 200 people charged. Only about a quarter of the original defendants are still awaiting their day in court.

[…]58 defendants remain charged and will face a judge and jury in at least nine more trials; jury selection for the next of these is scheduled to begin Monday.

The government is still giving itself plenty of leeway, though. It’s not simply interested in jailing those who actually committed property destruction during the J20 protests, but anyone it thinks it can pin a conspiracy to riot charge on.

The “conspiracy” angle is only going to do more damage to First Amendment rights. Simply having contact with someone charged with property damage/rioting could net defendants jail time. This is an effective way to deter future dissent, as it casts a chill on participating in protests against the government simply because the possibility of some participants engaging in criminal activity will always exist.

Denver civil rights attorney Jason Flores-Williams was a legal observer at the demonstration, but was disqualified from representing arrested protesters because the court saw this as a conflict of interest. In his view the prosecution means to send an even more pernicious message, which is that protest of the sort that the defendants engaged in is prohibited full stop.

[…]

“The important aspect here is that they’re going after fundamental associative rights. They implant the idea in the minds of the citizenry that even to discuss dissent or even ‘like’ a dissenting comment on Facebook can lead to prosecution. When that happens, democracy dies.”

It’s highly unlikely the last 58 defendants all engaged in property damage or destruction. That means a lot of the government’s targets will be facing nothing more than conspiracy charges. If the government succeeds in convincing a jury simply discussing participation in a protest that ultimately resulted in destructive acts from a small subset of participants is a criminal act in and of itself, the First Amendment is going to suffer. Given the history of these prosecutions, it’s clear the government either isn’t aware of the damage it’s doing or, more likely, does not care.

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Comments on “DOJ Still Wants To Lock People Up For Protesting The Government, Or Even Just Talking About It”

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78 Comments
Anonymous Coward says:

“After a DC Superior Court jury acquitted the first group, prosecutors announced they were dropping charges against 129 remaining defendants, saying they would focus on defendants who allegedly engaged in “identifiable acts of destruction, violence, or other assaultive conduct,” who planned violence, or who participated in “black bloc” tactics to aid the property destruction that day.”

They were prosecuting people without any evidence. Are these people going to get an apology?

Anonymous Coward says:

Re: @"AC": dropping charges doesn't imply no evidence;

only implies difficulty and focus on most egregious cases.

It IS very difficult to prosecute against opposition. People who want to destroy civilization take advantage of rules that civilized people must follow. Big problem, especially when confused by large numbers of persons in riot.

You appear to believe that any anti-Trump protester is by that fact above the law. They’re not.

Solution, though, is NOT to blame “law enforcement” for attempting to prosecute those who’ve committed crimes, of whatever degree, nor to say that those near crimes aren’t reasonably suspect.

Techdirt is yet again advocating for criminals, jeering that persons doing their duty to protect “democracy” are actually evil. That’s its long-term pattern from Napster to downloading child porn from a site the FBI took over: cheer crime, protect every criminal, demand every technical point be satisfied in least of crimes. That promotes only anarachy, not “democracy”. — And then Techdirt complains when laws are continually ratcheted up.

It’d be better all round if Techdirt and other liberal / libertarians didn’t defend people on the margins. It’s not actually the urge for a police state which drives more laws, it’s that there’s no effective means for punishing people for small crimes. (Example, Cruz the Florida shooter: fifty-some violations of rules, should have been sent to a real court at one point but the school let him slide.)

Anyhoo, just don’t complain when anarchy comes YOUR way! If attacked by a gang and beaten to a pulp: well, prosecution can’t determine exactly who kicked your teeth out let alone the minor blows, so just too bad for you! — NO, the whole lot identifiable should be prosecuted.

Anonymous Coward says:

Re: Re: Re:3 @"AC": dropping charges doesn't imply no evidence;

I am sure it has worked somewhere… like a billion dollars, I know it exists… I just have not witnessed it for myself.

Same as with Justice, I am sure it has happened, but just because it does does not mean that I have seen it!

Anonymous Coward says:

Re: Re: @"AC": dropping charges doesn't imply no evidence;

Oh? And the reporters who happened to have video footage proving they didn’t commit said crimes is what then?

The DOJ wanted to get info on approximately 1 million people who weren’t even there to commit those crimes. The DOJ even admitted it didn’t have evidence to prosecute when it dropped its case against the majority of them and are now only prosecuting the ones WHO ACTUALLY MAY HAVE COMMITTED A CRIME instead of just being in the vicinity. And even that number is probably larger than it should be.

Anonymous Coward says:

Protest + property destruction = crimes.

You don’t deny that crimes were committed, just try to claim that difficulty of determining exactly who makes DOJ evil.

When associate with criminals, then you are associated, yes. Even if just watch them commit crimes: citizens have a duty to give evidence. Apparently none of these "protestors" have given evidence against the criminals, which certainly implies intent.

You are casting DOJ attempts to find and punish criminals for actual crimes, with full due process drawn out over a year now, as unspeakably evil. It’s not. It’s quite measured, given the obvious organizing that was attempt to wreck / delegitimize the election, a direct attack on "democracy".

And you write this vile attack on best due process available while for past two weeks ignoring that Israel massacred at least 60 unarmed protesters in Palestine with sniper rifles from fortified safety at least 100 yards away, and wounded at least another thousand using "butterfly" bullets that cause unprecedented injuries.

I’ll believe that Techdirt supports protest soon as I see you write with horror proportional for Israel’s massacre.

Anonymous Coward says:

Re: Protest + property destruction = crimes.

Even if just watch them commit crimes: citizens have a duty to give evidence. Apparently none of these "protestors" have given evidence against the criminals, which certainly implies intent.

This hypothesis might make sense if the people were charged with dodging a subpoena… which it doesn’t seem they were.

Uriel-238 (profile) says:

Re: Wait, what?

First off citizens don’t have a duty to give evidence. Even talking with law enforcement puts one at risk of incriminating themselves to unknown or imaginary law. So there is always cause to stay silent as per our Constitutional right.

Secondly, they tried bystanders first. If they were going after the bystanders for aiding and abetting they would first have to establish that those who they were abetting were guilty. They’re not yet criminals, but suspects. That they went after those that did not engage in destruction or violence first means they were going after expression. Speech. Assembly.

Thirdly, a protest doesn’t undermine Democracy, not the way that say, collusion with a foreign interest, or foreign interference does. And this is the second Republican president in a row that could not muster a popular majority. This one depended on voter suppression, gerrymandering and hiding expenses that may likely have swayed voters, we may never know if Trump could have taken office legitimately.

But it was obvious in 2001 that Presidents that take office by less than legitimate means get to keep the office. We have no protocol for takesy-backsies.

And lastly but what about the Gaza Strip is entirely irrelevant to this case. Feel free to suggest a TD writer should talk about it, though Israeli disregard for Palestinians is very well known.

Anonymous Coward says:

Re: Re: Wait, what?

First off citizens don’t have a duty to give evidence.

‘[T]he public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege.

            —— Branzburg v Hayes (1972) (citing United States v Bryan (1950); Blackmer v United States (1932); and J. Wigmore, Evidence)

Anonymous Coward says:

Re: Re: Re: Wait, what?

Only recently the Court restated the ancient proposition of law,  . . . That ‘the public . . . has a right to every man’s evidence,’ except for those persons protected by a constitutional, common-law, or statutory privilege

            —— United States v Nixon (1974) (citing Branzburg v Hayes (1972), and citations contained therein) (internal blockquote and double quotes dropped)

Anonymous Coward says:

Re: Re: Re: Wait, what?

Allow me to introduce you to the Fifth Amendment of the Constitution, which, by that very quote, trumps that quote.

Relevant portion of the Fifth Amendment:

nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law;

Anonymous Coward says:

Re: Re: Re:2 Wait, what?

… in any criminal case to be a witness against himself…

Uriel-238’s proposition, though, is that, “First off citizens don’t have a duty to give evidence.”

His overly broad proposition is supported neither by the text nor history of the Fifth amendment, nor by any of the analogous state constitutional provisions (some of which predate the 1791 ratification).

The constitutional privilege secured is no extreme general privilege against the background duty to give evidence.

Anonymous Coward says:

Re: Re: Re:3 Wait, what?

They were innocent bystanders being accused of a crime they didn’t commit. The government had no evidence against them, it should never have even gotten to court where they were required to “give evidence”.

Innocent until proven guilty. Not the other way around.

I have no problem with a duty to provide evidence, when appropriate. That doesn’t mean the government can accuse you for anything they want and force you to hand over evidence to prove your innocence. That’s not how it works, it hasn’t worked that way, and it should never work that way.

Anonymous Coward says:

Re: Re: Re:3 Wait, what?

Are you claiming the goons rounded up a bunch of innocent people because those same people may have evidence?

This is not allowed under any law I am aware of, can you refer to whatever they may attempt to use in their feeble rationalizations?

Also, common folk are allowed to say they are unaware of any wrong doing – just like their esteemed representatives do.

Uriel-238 (profile) says:

Re: Re: Re:3 "Duty to provide evidence"

First off, a witness account is not evidence. It’s an anecdote. The human capacity to lie should (though it doesn’t) invalidate all testimony. Especially given the frequency false testimony by law enforcement has been shown to be used to convict.

Secondly, my point before stands. By submitting my testimony, I am putting myself at risk at breaking countless of unknown laws, real or imagined (the US Supreme Court believes offenses imagined by law enforcement are just as valid as real ones), so there is no instance in which the fifth amendment right to remain silent does not apply. I endanger my own life and liberty by testifying to law enforcement.

So in the US there is not only no duty to provide evidence, but doing so risks incarceration or worse.

Anonymous Coward says:

Re: Re: Re:4 "Duty to provide evidence"

First off, a witness account is not evidence.

evidence

every type of proof legally presented at trial (allowed by the judge) which is intended to convince the judge and/or jury of alleged facts material to the case. It can include oral testimony of witnesses…

evidence

something (as testimony, writings, or objects) presented at a judicial or administrative proceeding for the purpose of establishing the truth or falsity of an alleged matter of fact

evidence

The most common form of evidence is the testimony of witnesses.

Uriel-238 (profile) says:

Re: Re: Re:5 "evidence"

which is one of the reasons we have gross numbers of false convictions languishing in our prisons, when they’re not being murdered by the state.

Our law enforcement and prosecutors are measured by their convictions, not by the number of cases fairly adjudicated. So it serves them to convict people even under false pretenses, as necessay.

The legitimacy of the courts is by the force they hold, not by consent of the people. Not by any devotion to impartiality or persuit of truth.

Stephen T. Stone (profile) says:

Re: Re:

When associate with criminals, then you are associated, yes.

The problem with this logic can be expressed in a single question: If a group you are in decides to commit a crime, whether pre-planned or spontaneous but without your knowledge either way, why should you be arrested after the fact for a crime you both did not know would happen and did not help commit?

citizens have a duty to give evidence

The Fifth Amendment says otherwise, what with its protections against self-incrimination.

Apparently none of these "protestors" have given evidence against the criminals, which certainly implies intent.

Or maybe they do not have evidence to give, which is an option you did not (and likely will not) consider. You cannot conclude intent from inferences and third-hand knowledge alone.

You are casting DOJ attempts to find and punish criminals for actual crimes, with full due process drawn out over a year now, as unspeakably evil. It’s not.

Unspeakably? No. But the actions of the DOJ do reek of vileness. It has attempted to prosecute hundreds of people for being near the scene of a crime but not committing any of the most serious crimes that took place on that day. By continuing with the remaining cases and going with the conspiracy charges, the DOJ is laying the groundwork for future prosecutions of protestors who might happen to be in the area of, but did not commit, actual crimes during a protest action.

It’s quite measured, given the obvious organizing that was attempt to wreck / delegitimize the election, a direct attack on "democracy".

The First Amendment gives American citizens the right to “petition the Government for a redress of grievances”. The ruling in United States v Cruikshank (1875) held that “[t]he very idea of a government, republican in form, implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances”. A peaceful protest action, no matter how much you disagree with those protesting, is a legally protected right under United States law—which is why a lot of us here take issue with the DOJ trying to prosecute peaceful protestors for being tangentially connected to crimes they may not have committed.

And you write this vile attack on best due process available while for past two weeks ignoring that Israel massacred at least 60 unarmed protesters in Palestine with sniper rifles from fortified safety at least 100 yards away, and wounded at least another thousand using "butterfly" bullets that cause unprecedented injuries.

This is both irrelevant to the DOJ situation and an attempt to inflame emotions. You mentioned the Israel situation in the hopes that everyone would not notice how your entire comment is nothing but an act performative contrarianism that has nothing of substance beneath all the bluster and insults. If you want to argue against us, argue better, not angrier.

Ninja (profile) says:

Re: Protest + property destruction = crimes.

Do you practice onanism thinking about Trump when you are all alone at home? Because you used a lot of bullshit straight out of Trump’s play book not limited but with emphasis to the “whataboutism” in the end.

I wonder when you protest and this kind of behavior is used against you if your attitude will be the same. Remember, today it’s your Supreme Cheeto there, tomorrow might be another Obamabogeyman from the Democrats wielding the same weapon against you. Do you want to go down that rabbit hole?

That One Guy (profile) says:

Quite the flexible spine there judge

Kerkhoff: The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the Judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot. But look at the last line.

Just… let that sink in. A lawyer for the government intentionally tried to undermine ‘reasonable doubt’ and the judge’s instructions relating to it in their address to the jury by arguing that ‘it doesn’t mean a whole lot’. I’m not buying for a second that they ‘mispoke’ there, unless the DOJ has been hiring lawyers from craigslist, so you’ve got a government lawyer deliberately trying to undermine the law in an effort to bolster their case.

As obscene as that is seeing the judge just bend over backwards to apologize for them is almost more so, and I can’t help but suspect that anyone who wasn’t representing the government or a powerful client would have been on the receiving end of a hefty benchslap for even trying something like that.

Anonymous Coward says:

Re: Quite the flexible spine there judge

The lawyer absolutely tried to sneak one in but I read the judge’s reaction differently. I read it not as an apology but a very strong indirect shutdown saying “none of that in my courtroom” which put the lawyer in the awkward position of having to backtrack and apologize for her statements, lest she face further wrath from the judge.

Agammamon says:

"Kerkhoff: The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the Judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot. But look at the last line.

The Court: So wait…

Kerkhoff: I apologize.

The Court: I know she didn’t mean to say what she just said. But — "

Freaking judges man. She’s right there in front of you, shitting on your authority, and you make excuses for her?

Should have just held her in contempt and tossed her in the pokey for a week.

Anonymous Coward says:

Re: Re:

I know she didn’t mean to say what she just said.

I read this more as "I know you couldn’t possibly have meant what you just said, because you KNOW better, and if you don’t reverse course and drop it, I will bench slap you into next week".

I didn’t read it as an excuse at all, it seemed more like a very strong backhanded reprimand. Especially since she then tripped all over herself apologize and saying that yes, the judge’s instructions were very important.

Anonymous Coward says:

Block Bloc

Anyone who uses “Black Bloc” techniques in order to cast doubt on the actual perpetrators of property damage should be subject to conspiracy charges. By adopting the garb, they are agreeing to become part of the group and should be held responsible for the actions of said group.

This appears to be most of the remaining prosecutions. I’m sure many of you would not be so supportive of those arrested in this manner if they were wearing white masks and hoods rather than black ones.

Anonymous Coward says:

Re: Block Bloc

White hoods, black hoods, or cosplay it doesn’t matter. How you choose to dress is not against the law (except for indecent exposure but I consider that more of a lack of dress). It is the actions you take that are prosecutable. Anything other than that is a slippery slope to loss of freedoms. If someone in cosplay suddenly started shooting up the place, would you charge all the other cosplayers with conspiracy to commit a crime?

I was once accused (jokingly) of being a Boston Marathon bomber wannabe because I was wearing jeans, black hoodie, and had a large backpack stuffed full (it was college books, not a pressure cooker). Going down the road of prosecuting people based on how they dress is stupid and leads to there being a government mandated dress code that everyone has to follow or be jailed.

Killercool (profile) says:

Re: Re: Block Bloc

Red hats?

If dressing like a criminal is enough, then all those guys in blue uniforms are guilty of oh, so very much.

Because, forget association, quite a few departments with "bad apples" go so far as to suppress evidence and harass victims of "rogue" officers. Behavior that should be considered "accessory," not just "associate."

Anonymous Coward says:

Re: Re: Block Bloc

The difference is that everyone wearing the attire is wearing it for the purpose making it difficult to identify those who are actually commuting the crimes. That does make it a conspiracy. When one person commits a crime and slips into a crowd of people dressed the same way, how do you find that person? You don’t, you charge them all since the scenario was planned.

Stephen T. Stone (profile) says:

Re: Re: Re:

everyone wearing the attire is wearing it for the purpose making it difficult to identify those who are actually commuting the crimes. That does make it a conspiracy.

Yeah, to have bad fashion sense. (And also to hide their identities so they cannot be targeted for harassment or violence.) I still do not see how or why someone should be charged with a conspiracy count if they did not conspire to commit a crime or intentionally obstruct justice.

Anonymous Coward says:

Re: Re: Re:2 Re:

Because they did. Anyone who chose to wear Black Clothes and Masks did it specifically for that purpose. If it were the Klan doing the same thing, I doubt you would be opposing their arrest. A group of people dressed in identical attire specifically for the purpose of generating reasonable doubt to facilitate committing a crime. That is conspiracy. But you want to overlook the crimes just because they were committed by leftists.

Anonymous Coward says:

Re: Re: Re:3 Re:

You do not have a clue what you are talking about.
You don’t have even a SHRED of evidence that the were doing it to make it more difficult to identify those committing crimes.
They are far more likely to be wearing a mask to hide their identity, so they could protect themselves from harassment.

Anonymous Coward says:

“Do not thing we have rule of law,”

I keep hearing folk repeat this phrase while selectively enforcing the law(s) telling me it is not discrimination or bigotry but is necessary for (unintelligible) reasons. I’m sick of it. Rule of law is, apparently, only applicable to the masses and those with privileged do not need concern themselves with such trivia.

Uriel-238 (profile) says:

Re: Rule of law

It’s worse than that.

If you can’t afford a lawyer, don’t expect your rights to be honored. Don’t expect your public defender to have much time for your case. Don’t expect the prosecutor to play fair or share evidence during discovery (which he’s obligated to do).

If you can afford a lawyer, then you get access to some of your rights, and to the law.

And yes, if you’re rich enough, or are a state official, then you’re above the law, and can even murder with impunity.

SGOR says:

Re: HAHA...you used the present tense, lol...

Sure….they might do that….

Except: they have ALREADY DONE THAT.

Catherine McKinnons daddy George, and the FISA court…Patriot 1-2, and now niggling over Section 702,230,SESTA/FOSTA, and Reinhold Niehbur~cum~(fired)James Comeys rule 41 change via FBI distribution of child pornography, and exigent circumstances (please Save The Children who are harmed by the ICAC/FBI/JTRIG/Ipacac distribution/redistribution of previously distributed HIGHLY TOXIC AND ABUSIVE (!!!) child pornography!(which, for some reason never seems to catch, indict, or incarcerate the initial pornographer/s/ CIA Finders Cult/s))…

Sure- be afraid-VERY AFRAID of what could, might, maybe will happen.

Or, fight the fascism that happened here via all of the above, circa 2001-13.

Anonymous Coward says:

“hiding behind the First Amendment”

Hide, what do you mean hide. Its a right to be used, actually, its inherent, its not used, its passivlely active, ALL the time………….why are YOU trying to destroy it, what exactly is it you want to do that it gets in the way of, Mr lawyer thats thinks nothing off stepping over the heads of other fellow human beings

This is the world we live in, f depressing……

Anonymous Coward says:

Bad people given extra authority doing bad things

I cant help but think, that the glaring ingredient in that formula is the “extra authority” bit, we have bad people, but would they have caused the SCALE of damage that they did if they were’nt given the extra authority(or in the earliest of cases, taken)

Its not the whole solution, the idea being creating a world where people are to HAPPY, to WANT, to cause harm, but reducing the fucking monumental scale of the damage today by reducing, cutting or oversighting, seems like a fucking no brainer, until you realise that the bad guys run the things and thats why i feel we are stagnating as societies, hell, the system pretty much invites this use case

The one thing it seems is hard to write laws for aparently, is authority

That also would mean sacrificing those that anyone might believe would be GOOD in those positions, as we cant ask one thing from one and then not the other, we would fall into the trap that created the problem in the first place……a respectfull understanding in order to keep the peace, for peace’s sake……

Vote in the good as best you can, but reduce the authority across the board…..of the damn planet…..with a goal to understand the human condition, to improve our phsycological minds, our understanding, our intellect, our feelings, and learned things that are usefull, the kind of things that our ancestors had to struggle to survive that later generations improved, learn the the past to understand the present………not to become just another battery for an ever increasing immoral empire/s

SGOR says:

feminist jurisprudence

Isnt it wonderful that a class of persons who have never seen the inside of a jail, or have never been beaten/harrassed/shamed/bullied/STOOD FOR ANYTHING, EVER, like Ms. Kerkhoff, are allowed to speak for “the people”?

Recipes in disastrous court cases, and pseudo-feminist protectionism.

I would kuck her in the vahjayjay if I had a clear shot.

Only problem is, her vahjayjay is padded like a doubled up diaper, with waaaaaaaay to many sectarian, religious, and corporate interests all to willing to change it for her, every time she shits on due process.

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