By S.J. Harper
In the courtyard off of Independence Avenue outside of the D.C. Superior Court, a small crowd gathered around Michael Basillas, a 32-year-old trans woman of color and an activist—one of more than 200 people arrested and charged under the D.C. Riot Act on Inauguration Day in 2017.
“The system is not broken. The system is working perfectly for what it was built for,” said Basillas. In the distance, several suit-clad professionals looked up from their lunches .
“Was Sandra Bland’s life a joke? Was Tamir Rice’s life a joke? Was Michael Brown’s life a joke?” Basillas asked the congregation of defendants and curious passers-by. The activist, who uses they/them pronouns, has protested police brutality since they were a teenager.
Inside the nearby courtroom, D.C, Police Officer William Chatman had just testified that the t-shirt that he wore in the courthouse days prior, which read “Police Brutality: doing what their parents should have,” was “just a joke.”
Basillas declined the food that their friends offered, and instead spent their whole lunch hour addressing the impromptu audience. They recounted the police brutality that they witnessed throughout their life and detailed the arrest that brought them from their home in New York City to the D.C, courthouse, where they spent a beautiful summer day contemplating the possibility of spending 60 years in prison.
The J20 Demonstration and Mass Arrests
Basillas was among the 234 people arrested in downtown Washington, D.C. while protesting Donald Trump’s presidential inauguration on January 20, 2017. Two hundred and fourteen of them—including Basillas and three other activists—Anthony Felice, Casey Webber, and Seth Cadman —were were charged with felony counts of rioting and inciting a riot and were threatened with 60-year sentences. The charges against all protesters were dropped on July 6, but those swept up in the mass arrest are still struggling to heal emotionally—and in some cases, physically—from the severe injuries and alleged sexual abuse inflicted during the group arrest and the life-halting 18-month judicial process.
As thousands marched throughout D.C. for the J20 protest, some individuals broke from the group to smash in the windows of a Bank of America, a Starbucks, a limousine, and several police cars, leaving a trail of anarchy symbols through the elite social hub of our nation’s capital. Police, who later testified that they could not identify a single one of the vandals, encircled, detained, and arrested protesters, journalists, and bystanders en masse. The police used a controversial tactic known as “kettling,” wherein officers block off exit points around a crowd, then close in to press them into one and other as closely as possible.
After prosecutors failed to convict the six protesters in the first trial group, they dropped charges against 130 protesters and claimed that all remaining defendants either “(1) engaged in identifiable acts of destruction, violence, or other assaulting conduct; (2) participated in the planning of the violence and destruction; and/or (3) engaged in conduct that demonstrates a knowing and intentional use of the black bloc tactic on January 20, 2017, to perpetrate, aid or abet violence and destruction.
Political Polarization and Conflicts of Interest
During opening arguments, U.S. Prosecutor Jennifer Kerkhoff said the trial was “not about political affiliation or right to protest,” but the prosecution was found to have committed a serious legal violation after they demonstrated both personal and professional ties to the far right, spurring questions about the limits of individual objectivity in a deeply politically polarized climate.
Prosecutors relied on videos that were covertly recorded by Project Veritas, a far-right organization that received funding from Trump’s presidential campaign and attempted to place a fake story in the Washington post that would discredit the women who accused Republican senatorial candidate Roy Moore of sexual assault.
The prosecution aimed to use Veritas videos to charge defendants who attended meetings with “inciting a riot” and withheld videos where the Veritas members acknowledged that they had not heard any plans to destroy property at those meetings. Detective Gregg Pemberton, who lead the prosecution’s investigation over the past year and a half, testified that he spoke on the phone with a Project Veritas member known only as “Matt,” and that another Project Veritas affiliate hand delivered the videos to him on a flash drive. The MPD detective testified that he does not remember and did not write down the name of the person who gave him the flash drive.
The defense noted that Pemberton’s under-documented collaboration with the far-right organization occured after he developed a reputation for using social media to disparage the Black Lives Matter Movement (BLM) and the American Civil Liberties Union (ACLU). The defense argued that Pemberton’s tweets demand examination of how his own political alignment could influence his work as a detective.
The ACLU has filed a lawsuit against the MPD and 150 individual police officers on behalf of five protesters who were arrested during the inaugural demonstration. The allegations against the officers include the the use of pepper spray and flash grenades against peaceful protesters, denial of due process of arrestees who were confined for extended periods of time before being charged, and the intentional use of unhygienic and unnecessary anal cavity searches, amounting to rape.
Pemberton publicized his political stance before the J20 demonstration, and because he would professionally benefit from discrediting BLM and the ACLU both as police union representative for the MPD and as leader in the prosecution, the boundaries between his personal and professional motivations merit scrutiny.
Throughout the trial, several police officers testified that they did not see who caused the damage, and did not differentiate between vandals and lawful protesters when making arrests. “I wouldn’t be able to say that I observed a specific person doing any damage or destruction,” Police Officer Robert Ranck testified. In the absence of eyewitnesses, the prosecution spent much of the first week of the trial attempting to use video footage to identify defendants attending the protest.
Prosecutors charged Basillas with felony-level vandalism, but were not able to convince the jury that the blurry screenshots submitted into evidence were, in fact, photos of Basillas. Throughout the trial, courtroom observers vocalized their doubt when prosecution claimed that screenshots of masked figures with blurred faces were recognizable as defendants. When prosecutors argued that an image of a person who appeared to be white was, in fact, Michael Basillas, laughter was audible as several observers exclaimed, “Michael isn’t white!”
Not only did the prosecution rely on footage from an alt-right hoax group, but their witnesses included Chatman, who has previously been sued for beating children and a pregnant woman in his capacity as a police officer, and thus could be personally interested in discrediting protesters who criticize police brutality. Chatman was initially summoned by the prosecution as a witness to the inaugural confrontation between police and protesters. He was called into the courtroom again after it came to light that he wore a pro-police brutality t-shirt in the courthouse just minutes after giving his initial testimony. The defense argued that the shirt called into question his judgement of police behavior and his characterization of protesters as “rioters.” When the defense council questioned Chatman about the shirt, he held that it was “tongue in cheek” and “not anything serious.”
Basillas was especially troubled by Chatman’s testimony because it normalizes the abuse that they personally experienced at the hands of the police on inauguration day, as well as the police abuse that trans women of color face at disproportionately high rates. A study by the Anti-Violence Project finds that trans people of color are six times more likely to experience police violence than the general population. “To say that it’s tongue in cheek is to suggest that police brutality is a necessary component to regulate people who are not in agreement with the system,” said Basillas.
Prosecutors further invited challenges to the claim that their case is apolitical when they argued that defendants’ union membership is incriminating. Webber’s union membership card was submitted as evidence against him, reinforcing his belief that the prosecution of protesters is an attack on working-class interests. “They went after my right of association which is supposed to be guaranteed by the first amendment of the U.S. Constitution. The fact that they could have gotten me convicted should terrify anyone, regardless of their political affiliation,” said Webber.
“It’s political to deem something apolitical,” said ex-defendant Caroline Unger, responding directly to Kerkhoff’s opening comments just hours after she learned that she no longer faced life in prison.
Before the second group of protesters was tried, 21 people were found guilty as a result of coercive plea deals that prosecutors offered to defendants who were known to be close friends or romantic partners. “It was so obvious how it was using people’s partnership as a source of leverage to get them to take a plea deal—and that was really hard to see, because if they didn’t take it they would have to testify against each other—and it was just very intense to see that wielded by the prosecution,” said defendant Caroline Unger, just hours after she learned that she no longer faced life behind bars.
In opening arguments, Kerkhoff argued that protesters who did not choose to leave at the first sign of vandalism enabled all of the property destruction that occurred at the demonstration. The prosecution relied on the Pinkerton theory of liability to argue that each protester who was present at the demonstration is individually responsible for all of the property destruction that occurred there, and suffered a severe blow to their case when Chief Judge Robert Morrin ruled to limit use of the Pinkerton theory.
During the first week of the trial, Pemberton praised his team’s response to the damaged property, even after his fellow officers testified that police violated protocol when they made the arrests. While D.C, police protocol mandates that officers issue dispersal orders before making mass arrests, several officers admitted in court that they failed to do so. “Not once did they ever say to disperse, it was just grenades exploding and them shooting people with super soakers of mace. They were just chucking grenades all over the place,” said Felice on the phone after their charges were dropped. “They hit people with batons who were already in the kettle, they maced random people on the street.”
Officer Robert Ranck testified that protocol specifies that “stingball grenades” should not be thrown directly at people, and that police threw at least two of the devices into the group of confined protesters. The weapon, which releases rubber bullets and heat, caused substantial injuries to those arrested.
“I could hear people screaming behind me. I got knocked to the ground both times so I couldn’t tell you too much,” said Webber. “Everybody was being crushed into each other by the force as the police closed in. I had two teeth knocked out by the rubber bullets and the grenades. My hand was burned quite severely; I had it bandaged for about three weeks after that.”
A week into the second trial group’s proceedings, Chief Judge Robert Morrin ruled that the prosecution commited a Brady violation when Kerkhoff looked him in the eye and denied the existence of 69 videos that the prosecution received from Project Veritas. The Brady Rule prevents the prosecution from withholding evidence that could work in favor of the defendants. The defense council for the third trial group filed a motion declaring the Brady violation before their trial begun, and because different judges presided over the second and third trial groups they enacted different remedies to the legal violation. Morrin ruled to drop all charges against the eight protesters in the third trial group, while Judge Knowles gave the second trial group’s defense council a private interview with “Matt” of Project Veritas, who provided prosecution with the videos that they withheld.
While the prosecution’s failure to disclose evidence resulted in a mistrial for some defendants and not others, Judge Knowles’ decision to continue the trial was not necessarily intended as a blow to the defendants. University of Maryland Law Professor Douglas Colbert says that that a not guilty verdict would set much stronger precedent for future defendants than a mistrial based on prosecutorial misconduct. While any analysis of the judge’s motivations are speculative, Colbert says that to unpack the judge’s decision, we must understand that she still could declare a mistrial as remedy to the Brady violation, even after the jury announces their verdict. “The judge has the ultimate power to overrule any jury’s verdict if it’s inconsistent with the law,” Colbert said.
While the prosecution’s Brady violation could be seen as ethical grounds for disciplinary action or even disbarment, Colbert says that even if there is sufficient evidence, any kind of disciplinary action would be hard won. “I teach legal professions and when we review some of the most atrocious prosecutorial ethical violations- invariably courts find that the violation does not merit disbarment and invariably does not require a disciplinary violation,” said Colbert.
The law professor believes that our criminal justice system will not be fair or effective until prosecutors are held to a higher ethical standard. “Holding prosecutors to their ethical duty would send a strong message to every prosecutor that they must disclose evidence that tends to exculpate the accused. We see too many instances where people have been unfairly convicted due to prosecutorial misconduct,” said Colbert.
During closing arguments, Kerkhoff played an audio clip of the police confrontation and appealed to the jury’s sympathy for police officers who had described feelings of fear during the inaugural chaos. The federal prosecutor then said that the defendants showed “privilege and entitlement” when they expected police to issue a dispersal order before making arrests, as mandated by the Metropolitan Police Department’s protocol. Many protesters say that the police officer’s account of their discomfort was misleading. “The cops were up there on the stand testifying they heard explosions. The explosions were the grenades that they were throwing at us,” said Felice, in a phone interview.
Transphobia in the Criminal Justice System
Basillas says they were continuously subjected to explicitly transphobic harassment, beginning with their arrest and continuing throughout their trial. The activist is well versed in the legal protections they are entitled to, and they routinely take care to inform other gender non-conforming people that if they are in police custody, they have the right to be patted down by someone of the gender they are most comfortable with. Still, Basillas says these rights were ignored when they were arrested at the inaugural protest. “When I was being transferred to the courts, we were being patted down by a U.S. Marshal, and the U.S. Marshal who was patting me down swiped through my legs, even though I told them I wanted to be patted down by a female. They didn’t care at all,” said Basillas. “He [a U.S. Marshal] aggressively rubbed his hand around my thing and grabbed the middle part of my genitals and said, ‘If you are a woman why do you have this between your legs?’” said Basillas, sitting outside a cafe in sight of the courthouse, minutes after hearing that their case was ruled a mistrial. Basillas was unable to identify the officer, and says that none of the U.S. Marshals were wearing identification.
On the second day of the trial, Basillas’ attorney Billy Jacobson went to Kerkhoff to request that she refer to to Basillas with “they/them” rather than “he/him” pronouns. Basillas conferred with Jacobson about his meeting with Kerkhoff, and returned to a large group of defendants and supporters in the courtroom hallway to report that Jacobson had said, “I’m so sorry. She said ‘Well then what should I call it?’” The hallway, which had been nearly silent, erupted into a cacophony of voices expressing outrage and condolences.
As the trial wore on, Basillas’ attorney, Billy Jacobson, cautioned them against appearing transgender in the courtroom. “My lawyer wanted me to play the safe role. He wanted me to not wear makeup, he wanted me to pretend to be cis. I don’t think it was malicious. I think it came from the fear that it could endanger me even more,” said Basillas, who was undeterred.
After the activist had appeared bare-faced during the first several days of the trial, “I was completely empowered to walk in there with lipstick, eyeshadow, and glitter. I did it because I need to feel like who I am and what I stand for is not wrong. And doing that gave me solace in a time of darkness. Part of me is still there and no one is going to take it away,” said Basillas.
The Verdict and Impact
After a week of deliberation, the jury was unable to reach a consensus regarding many of the charges pressed against Basillas, Felice, and Cadman, but acquitted Webber’s charges completely. Judge Knowles ruled Basillas, Felice and Cadman’s cases as a mistrial, meaning that the prosecution could re-file charges against them within 30 days of the July 6 ruling. Weeks after the second group trial concluded, charges against all defendants were dismissed without prejudice, meaning that the prosecution could re-file charges against anyone who was not acquitted by a jury.
Despite the political tension of the trial, jurors say that the mistrial was determined by ambiguous identification of defendants rather than the prosecution’s misconduct or political ties. Outside the courthouse after the ruling was given, a juror said the three protesters were granted mistrials because “ID-ing defendants in video evidence that they [the prosecution] provided was very difficult. Some of the defendants could be identified in the video, but were they doing anything criminal there? No.”
The prosecution’s efforts to use Project Veritas’ footage of planning meetings against protesters failed when jurors decided that even the videos that the prosecution hand-picked depicted constitutionally protected activity. Minutes after the trial ended, outside the courthouse a juror said, “The videos of the planning meetings were actually in the defense’s favor. We felt that was people exercising their First Amendment rights.”
Amidst the widespread celebration that all charges were eventually dropped, the activists who stood trial must now reckon with the damage done to their lives, educations, financial stability, and mental health.
Many of those who faced charges still live in fear of becoming the targeted victim of violent crime. “The very day after we got out of jail the police gave out the list of people who were arrested to an alt-right media site. I’ve seen spreadsheets made by neo-Nazis on alt-right forums with my name and town. They listed our families’ names and addresses, and there were comments like, ‘we should pay a house visit’ with pictures of burning houses,” said one ex-defendant, who chose to remain anonymous to avoid confirming the identifying information.
Unger says that she was turned away from jobs and internships because of the charges against her, and now has a better understanding of the reality of the American criminal justice system. “For me personally, it’s been a very important experience for me to understand a tiny slice of what people go through in the punitive system. People have to face this system that’s set up against them every day, predominantly poor people of color. It’s been incredibly taxing on every level, emotionally and physically.” The demands of the trial forced Unger to pause her graduate education, and she now looks forward to finishing her degree and becoming a trauma therapist.
Ex-defendant Elizabeth Lagesse left a graduate program in Chemistry and moved to D.C. to accommodate the trial’s schedule. She is unable to return to the program now, and is unsure of her next career move.
Many who faced charges don’t have a clear path to getting their lives back on track, and those who were born with the least money are the most deeply impacted. “I could have been in school right now. I graduated with honors, and was accepted into the University of Arizona. I just needed to figure out how to get the loans,” said Felice, who was forced to give up their landscaping job and apartment in Arizona in order to appear in D.C. court throughout the past 18 months. Even though Felice was able to finish their associates degree while under the mental duress that comes with the threat of life behind bars, the demands of the trial prevented them from holding a regular job and left them financially ruined. Felice is now staying with their mother in North Carolina, without the finances even to travel back to Arizona. They hope to be able to resume their education.
The financial strain of the demand that defendants appear in D.C. regularly disrupted their lives, and was often only possible due to the donations that the high profile case attracted. The newly freed defendants caution against the assumption that their personal victory is representative of the way the criminal justice system impacts citizens more broadly.
None of the 21 defendants who accepted plea deals stood trial before a jury, and one of them, Dane Powell, spent time in prison. The practice is shockingly common. “All of the principles that our founding fathers set up the system on are hollow, because the vast minority— 2% of people—end up having a trial,” said Unger, who was among the eight people whose charges were dropped as a result of the Brady violation. The Federal Court system reports that more than 90% of criminal cases end in plea deals. Unger is relieved that that the threat of life in prison didn’t pressure her into accepting a plea deal before her charges were dropped. “I was expected to make huge decisions about the trajectory of my case with no experience. And they wield that,” said Unger.
While the support that the public eye attracted was not enough to protect all J20 defendants from coercive practices, the moral and financial support they received lent them access to a fairer process then most people experience in the criminal justice system. “Having a hundred thousand dollars to support the defendants is not a common reality for many people of color or any political prisoners at all. Even in my situation, I felt really humbled and often guilty having to see black and brown people in that court system not having the luxury of a high-profile case getting a pro bono lawyer like myself. They don’t have the legal representation or the bail. Part of the success of this case was having that support system,” Basillas said.
Moving forward, Basillas hopes that the activists and supporters who focused on their trial will direct their efforts towards the plight of people who were arrested for non-violent crimes, including sex work and drug offences, while attempting to survive poverty.
“Create your own community affinity group and use direct action to be the change. Go to court to bring water and and food to people who just got out of jail, or write letters to your representatives about mass incarceration, talk to your neighbors about knowing their rights,” Basillas said, just hours after they learned that they no longer face the threat of life imprisonment, “You don’t need a large NGO [non-governmental organization] to do these things. If a small group can get together and pool money to bail a single person out of jail, that’s how you make movements.”