By Baynard Woods
A motion filed in D.C. Superior Court last week claims that the lead detective in the case against 193 people arrested during protests of President Trump’s inauguration gave false testimony before a grand jury to secure charges against two of those people.
The motion claims that Greggory Pemberton, a detective with the Metropolitan Police Department and the treasurer of the Fraternal Order of Police union in D.C., told the grand jury that everyone who was “kettled” and arrested en masse on Jan. 20 “participated in the entire march,” including Jada Young and Sasha Hill, both of whom are scheduled to stand trial next month on three misdemeanor charges. But, the motion argues, this isn’t true—and so any charges brought by the grand jury on the basis of this testimony should be dismissed.
“It really undercuts the government’s whole theory of what people were doing there and caught up in the kettle,” said Scott Michelman, of the ACLU, which is pursuing a civil case against MPD based on the actions of individual officers and command that day.
More than 200 people were arrested by MPD officers during protests surrounding Trump’s inauguration in January. The government claims that, under the federal Riot Act, all of those people are responsible for several broken windows because by wearing black and being in the area they were part of a conspiracy to riot.
Michelman says that the motion shows that police and prosecutors “are guilty of overreach in terms of their willingness to ignore or not learn about the presence of individuals who showed up at the end. And the fact that people were coming and going throughout the march. All of which suggests they just wanted to round up a group of people and they didn’t care who they were or what they had done.”
The motion contains portions of grand jury testimony obtained by Young and Hill’s lawyers after a recent proffer that reduced their charges acknowledged that the two women had not been present for many of the crimes with which they were charged. “Contrary to the specific allegations of the indictment, neither Ms. Young nor Ms. Hill traveled with the march (which the indictment alleges was dominated by black bloc) for 16 blocks over a course of 33 minutes. Moreover, they did not have multiple opportunities to leave the march, including two specifically alleged by the indictment,” Kristen Robinson wrote in an earlier motion seeking access to the testimony.
“The grand jury indicted Ms. Young and Ms. Hill on all of the charges in the incident, without differentiating them from other participants in the march, based on the false testimony of Detective Pemberton,” the motion reads. Pemberton, the motion alleges, “led the grand jury to believe that anyone arrested in the kettle had participated in the entire march.”
“He did so even though by the time his testimony was complete on April 21, 2017, he had reviewed hundreds of hours of videotape and had the ability to describe Ms. Young’s and Ms. Hill’s very limited participation in the march to the grand jury and to differentiate it from everyone who participated in the march from beginning. Instead, he provided false testimony about their participation, whereupon the grand jury indicted them on all of the counts,” the motion reads.
The testimony, the motion argues, has been acknowledged as false by the government itself given that it has since decided “to only try them on three misdemeanor counts” rather than the eight charges brought against all of the defendants.
This case has far-reaching implications for the First Amendment and the ability for Americans to protest in the nation’s capital, where federal prosecutors who answer to the Department of Justice try even minor cases.
If Judge Lynn Leibovitz rules that Pemberton’s testimony to the grand jury in the cases of Hill and Young was false, the cases against dozens of other people caught up in the mass arrest could be dismissed. If the defendants in the case are found guilty, it could quell the ability to organize protests for fear that an entire group will be held accountable for the actions of a single individual.
Arguments in the trial of the first six defendants concluded last week and the jury is deliberating. In that trial, Pemberton’s own criminal history (DUI), troubles with internal affairs (“conduct unbecoming of an officer”) and social media posts that may show a bias (he claimed they were intentionally inflammatory) became an issue. He has spent the entire year working solely on this case at a salary of over $78,000. If a judge rules that he provided false testimony to the grand jury, it could have far-reaching results that go way beyond the charges that Hill and Young are facing.
The grand jury testimony—which is used to bring charges and is usually kept secret—included in the subsequent motion shows a grand juror trying to understand the grounds of arrest. “Is being—wearing black and being in the immediate area was cause for arrest?”
Jennifer Kerkhoff, the U.S. Attorney in charge of the government’s case, reframed the question for Pemberton. “So you’ve testified that the group itself that moved through the city was the one that was stopped. Can you explain a little bit more what you mean by that, the group that was moving through the city causing the damage was the one that was stopped?”
Pemberton responded that “anybody that appeared to not be associated with this group left and went in another direction, because of the fact that the destruction was so—it was proliferating.”
The group had, Pemberton testified, “coalesced into one group of individuals that was pretty much wearing all black, carrying flags, chanting, throwing bottles at people, throwing rocks at the police, breaking windows, breaking cars.”
“I don’t think that there’s anybody that just sort of happened to be there at that point in time. Because they were engaging in active violence against property and people and the police—anyone that was left at that location…they had obviously gotten it down to a group of individuals that were the most egregious of the group and that’s the individuals that were placed under arrest.”
The statements were not just general. The testimony shows that Pemberton was specifically asked about both Young and Hill. When he was asked “Have you identified Ms. Hill as having participated in this riot?” he answered affirmatively. With regards to Young, the question was even more specific, asking Pemberton if he had specifically identified Young in video evidence of the “riot.”
“Yes, I have,” he answered.
Lawyers for Hill and Young argue that the evidence makes it clear that their clients weren’t swept up in the march until near the end—for the final three blocks. They did not have opportunities to leave or witness any of the acts of destruction mentioned in the indictment. Nor did they cheer at those acts of destruction, the motion claims.
“The fact that the government now concedes that Ms. Young and Ms. Hill participated in the march for only three blocks and seven minutes makes clear that Detective Pemberton gave false testimony and, as a result, Ms. Young and Ms. Hill were deprived of their Fifth Amendment right to a fair hearing before the Grand Jury,” the motion concludes.