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  December 22, 2017

Despite Not Guilty Verdict in First Inauguration Riot Case, US Attorney Won't Drop Charges Against Others

The case was a test of First Amendment rights of free speech and association under Trump, and the verdict is a blow to federal prosecutors and the D.C. police--yet the U.S. Attorney has decided not to drop charges against the remaining 180-plus defendants. But one of those defendants, Elizabeth Lagesse, says she's cautiously optimistic
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BAYNARD WOODS: For The Real News, I'm Baynard Woods. A jury in Washington D.C. found six of the defendants in the Riot Act case surrounding protests during President Trump's inauguration not guilty on all counts today. The case is a test of First Amendment rights of free speech and association under Trump, and the verdict is a blow to federal prosecutors and the D.C. Police, who spent a year working on the case. The US Attorney's Office announced in a statement that they would still pursue charges against the remaining 180-plus defendants. With me is one of those defendants, Elizabeth Lagesse, who's also a plaintiff in a civil suit against the MPD police department in Washington. Welcome, Elizabeth.


BAYNARD WOODS: You're not only a defendant in this case but you've been, you weren't a defendant, one of these first six, but you've been sitting through all of the court proceedings. Tell us a little bit about what's been going on in court leading up to this acquittal today.

ELIZABETH LAGESSE: Yeah, the prosecution put on a long case. It took close to three trial weeks, so it was longer than they expected even, I think. They showed a lot of video. They showed a lot of repeats of the same scenes over and over again. They really have stuck with their case. They're basically alleging guilt by association. They led off with a comment basically saying "You're not going to see any of the defendants in this trial breaking anything or hurting anyone." And in getting feedback from the jurors after the verdict today, they mentioned that as one of the things that sort of clued them in to the, sort of weakness of the case right away.

BAYNARD WOODS: Right. Let's go back to set that up. So, it's inauguration day and there are protests all over the city, marches. One group was giving away joints to people in DuPont Circle. So, there are people gathering there, both for and anti-Trump, and one group of people wearing primarily black clothes is moving through the city and windows of a Bank of America and a Starbucks get broken in the process of this march.

The police then rounded up, in a technique called kettling, using pepper spray, billy clubs and grenades, rounded up a large group of over 200 people and cordoned them off in a kettle and charged the majority of those people with all of the counts of property destruction and with conspiracy to riot and rioting because of the clothes that they are wearing. And you were one of those people who was caught up into this thing, and they, as you said, they said that none of the six people who were on trial in this particular trial group were involved in any of those acts of destruction. But because of what they were wearing, they are guilty of all the crimes. Is that a good way of summarizing what's at stake in the case?

ELIZABETH LAGESSE: Yeah, and also in addition to the clothes that they were wearing, they mentioned that being present in the kettle, as they call it, which is the way that the police sort of section-off the people that they intend to arrest at protests, which is a controversial tactic. It's not supposed to be used in the District of Columbia but they used it. The prosecution was basically claiming that if you were present on that street and you got swept up in that kettle, then you had opportunities to leave, you should have known better, guilt by association.

BAYNARD WOODS: Right. I mean, they're saying that if you were moving with the group or anywhere near, and one of the defendants in this case, Alexei Wood, who was on trial these last weeks, is a journalist who was live-streaming it. And the fact that he live-streamed it made him, they said, an aider and abettor of the conspiracy because it could have had more people come and join it. Other people who were on trial, two of the people in this trial were medics, and the fact that they intended to help people who were injured was also seen as part of the conspiracy. What does this verdict say to you about those kinds of charges?

ELIZABETH LAGESSE: Well, on top of that, they also said that everyone there wearing dark clothes was aiding and abetting by virtue of being there and looking like the other people and making it harder to identify them. The jurors seemed to wholesale reject that characterization. I heard at least two jurors mention that the fact that they didn't have actual images or actual video of these people doing anything other than being present was a real problem for these jurors.

BAYNARD WOODS: Yeah. It's a tricky thing, especially with the medics who were going there to provide medical care in Charlottesville after the right-wing terrorist attack when a car was plowed into a number of people. The street medics, the kind of people who are being tried for being there in this case, were the only ones providing medical care for a number of minutes before city officials and professional medics arrived. The argument that Jennifer Kerkhoff, the prosecutor, made that anyone who went there with the intent of providing medical care was something like a getaway car driver strikes me as really pushing the limits not only of freedom of association but just of common sense.

ELIZABETH LAGESSE: Well, and on top of that, as you know, the people were detained on the street in January for hours with pepper spray all over them. Many people requested basic human needs like medical care, and toilets, and food, and water and were denied access to all of those things. So, the fact the medics were in the kettle is the only reason people in the kettle were able to get medical care.

BAYNARD WOODS: I mean, for full disclosure, I got medical care from medics, had my eyes washed out after I got pepper sprayed that day. I met up with the group that was kettled and arrested right as they turned the final corner into the kettle and ended up being able to get out because of my press badge, which other journalists like Aaron Cantú and Alexei Wood weren't able to do.

But there was a motion that was filed last week for the remaining cases that was alleging that the lead detective in this case, Greggory Pemberton, falsified testimony because he said that every defendant who was arrested, he told the grand jury that every defendant who was arrested in the kettle was with the march for the entire 33 minutes and the entire 16 blocks. Two of the defendants, it was admitted in motions and in court, had only been with the group for three blocks and less than seven minutes and yet are still being tried.

ELIZABETH LAGESSE: Yeah. It's really emblematic of the sort of bulk nature of these charges. He didn't know anything specific about any of the individuals involved with this case when he made his grand jury testimony, is what it sounds like. It sounds like he just said "Look, you were there. You got arrested. You must have been there for everything. You must have had equal culpability." They even said, various police officers said as part of their testimony in this trial, that they didn't make any effort to distinguish between people. They didn't make any effort to identify people before they were arrested. So, it's not surprising at all that medics, and journalists, and just random people on the street got swept up in this.

BAYNARD WOODS: One of the things important to note, and on the footage that we're showing, it showed a car in flames just then. That happened long after you all were trapped in the kettle. Basically, that's when many of the images that you see, a sort of street battle between citizens and the police was as a result of the kettle and a result of massive amounts of pepper spray. A FOIA requests that I filed ended up coming back showing that police used over 70 grenades that day, dozens and dozens of canisters of pepper spray, but much of that happened after the group that's on trial was already detained. As a-


BAYNARD WOODS: As a defendant, how does this make you feel that the US Attorney's Office has decided not to drop the charges against all defendants? They say they're gonna still continue with the case. You have a trial coming up and a, we'll come back to talk a little bit about your civil suit against the Department. But what does this mean to you as someone watching? Are you cautiously optimistic?

ELIZABETH LAGESSE: Yeah. I would say I'm cautiously optimistic. That's the perfect way of putting it. I'm very optimistic because this is the first time we've gotten real, solid input from an outside observer who doesn't have a stake in this game. The prosecutor clearly doesn't wanna let this go. They've pushed every possible boundary. They've taken a gag order on a Facebook warrant for people who weren't even arrested all the way to the Court of Appeals, so it's not entirely surprising to me that they haven't just seen the sign on the wall and decided to drop all the charges but it's disappointing. It's disappointing because it means that we're gonna have to keep fighting. We're gonna have to keep supporting each other, and it's gonna be a long year.

BAYNARD WOODS: Speaking of a long year, it's crazy. So, you were arrested on January 20th, the case is often called the J20 case or the 12th and L case because of the location of the arrest but that was last January, and the detective, Pemberton, has been working solely on this case for most of 2017 now, or for all of 2017 as we reach its end. This is over, and charging all of these people over a very small number of broken windows and a very small amount of damaged properties, which one person has already done four months in prison for and pled guilty to. Numerous people who were way behind or way in front of are still being charged with that.

It's hard to imagine what your year must have been like. Alexei Wood, the journalist who was on trial this time, he moved away from his home in San Antonio to Washington D.C. to be able to deal with the case and you've done the same thing. You moved from here in Baltimore to Washington D.C. and postponed a move across the country for you to have to deal with this case. What is it like to be a defendant in such a strange case?

ELIZABETH LAGESSE: It is just a parade of incredulity. Every time they do something, it's like "Oh, they never do this. Surely, they won't push this boundary. Surely, they won't force this issue. Surely, they won't whatever." And at every step, they've just pushed and pushed and pushed. I don't know why they're doing it but it's kind of insane. And it's getting frustrating because normally you imagine that if a prosecutor takes a case to a jury and the jury, a jury of your peers, comes back and says no to 42 counts that they might take that into consideration. But here, they've issued a statement the same day as those acquittals saying, "We're not backing down. We're doing this for all 187 defendants left." It's just crazy.

BAYNARD WOODS: Yeah, the charges, the judge, even before this verdict came back, dropped a felony inciting riot charge earlier this week. What charges were left that people were found not guilty of today, and what charges are left that you're facing?

ELIZABETH LAGESSE: Yeah, and I will say about that dropped charge, that was dropped on a motion for a judgment of acquittal which is a procedural thing that happens at the end of the prosecution's case in most criminal cases, and you don't really expect to win it. It's basically the judge saying, "There's so little here that the conviction shouldn't be sustained even if the jury decided to convict you." Defense attorneys I've talked to have said that they can go an entire career without ever having one of those succeed. So, that says something about the strength of this case. That was the incitement charge.

As they were giving the case to the jury, the remaining charges were misdemeanor for engaging in a riot, a misdemeanor for conspiracy to engage in a riot and then five property destruction charges that they did not think they personally did but that they were connected to the conspiracy, that they were the outcome of the conspiracy.

BAYNARD WOODS: Right. So, anyone who was wearing dark clothing, even within blocks of where property was destroyed or coming on much later than property was destroyed is still being charged with the individual destruction of property charges, which is really a new sort of culpability that they’re trying to make based upon political association. So, it will be interesting to see where they, how this goes throughout the rest of the year. The next trial was scheduled to begin this last week but obviously as this one went longer, it wasn't. So, what are we looking for next, Elizabeth?

ELIZABETH LAGESSE: Well, yeah. First of all, you're right about the political movements being targeted. They said multiple times throughout this trial, "It's the group that's the danger. It's the group that we're worried about," which is troubling. But the next trial is set to go forward in January. There's a status hearing on January 19th for that group and we'll learn more about exactly what that'll look like then. That group has only got misdemeanor charges pending. We're not entirely sure why the prosecutor dropped those charges but there's been some speculation. But they are gonna only go before a judge at that point, no jury. So, that could be better or worse depending on how that all shakes out.

BAYNARD WOODS: And so, you're also a part of a civil case against the MPD, the Washington D.C. Police Department, the chief of that department and several anonymous officers, which is striking. They claim that the protestors were all wearing the same clothes so they could be anonymous and yet the officers who sprayed people with pepper spray, used grenades, are also anonymous. What does this mean for that case that you're filing with the ACLU and a legal observer who was caught up in the kettle, a journalist who was caught up in the kettle, and really sort of horribly violated during a search, what does this do for that civil case?

ELIZABETH LAGESSE: It's definitely a good sign. It would be a bad sign for our claims of false arrest and violations of the Fourth Amendment if we had a bunch of convictions happening for that same set of events. So, it's certainly good news. I don't know how good that news is gonna be exactly. There are two plaintiffs on the civil suit that are also defendants currently under indictment, myself and one other person. It's gonna be an interesting year if all of the criminal trials go forward and now soon there's gonna be movement in the civil case.

BAYNARD WOODS: Well, thanks so much for coming on today. It's always good to check in with you on this. It seems to be a real victory for free speech and free association today.

As you know, we are in our year-end fundraising campaign here at The Real News. Without your generous support, we can't bring you this kind of coverage of cases like this that are vital to our democracy. So, I'm Baynard Woods, I'm with The Real News and thanks to Elizabeth Lagesse for coming on and talking to us today about the important developments in the J20 case.


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