US Attorney’s Office That Prosecuted Inauguration Day Protesters Has History of Misconduct Findings

Oliver Harris finally felt vindicated when he heard the jury announce “not guilty” last December, as the first of the J20 trials came to a close.  Relief would come later. The then 28-year-old, disturbed by what he perceived as Donald Trump’s violent and fascist language on the campaign trail, had traveled to Washington, D.C., on Inauguration Day—Jan. 20, 2017—to protest the Trump administration as part of a direct action organized by the group #DisruptJ20. 

During the protest, which was hundreds strong, a small group destroyed property, including a police car and business windows.  The Metropolitan Police Department (MPD), in turn, used pepper spray, tear gas, and Sting-Ball grenades against the protestors.  By the end of the day, Harris was arrested, along with over 230 others, charged under the D.C. rioting statute despite no credible evidence he incited or engaged in a riot or caused any property damage. The United States Attorney’s Office for the District of Columbia, which handles both local and federal cases, later added numerous other charges against 214 defendants.   

Throughout 2017, Harris, who faced up to 60 years in prison, joined the other charged protestors and hundreds of defense attorneys to prepare for their trials.  But thanks to his acquittal in December, he could go home to his partner who was pregnant with twins, return to his teaching job at Drexel University and his Ph.D. studies in chemical engineering, and resume a normal life. Earlier this month, after another trial that ended with no convictions, prosecutors finally dropped the charges against all defendants.

One of the prosecutors in the case, Rizwan Qureshi, shook the defense attorneys’ hands.  But not Jennifer Kerkhoff, the lead prosecutor and a central figure in the J20 legal saga.  Harris told The Appeal that she refused.  “She does this thing,” Harris explained, “where she just kind of—it’s like her jaw is really clenched and she is just grinding her teeth and she just stares at the table. She seemed livid.”  

“Even in little kid soccer,” Harris continued, you still have to “shake the other team’s hands.  I think it says a lot about her as a person.”

The J20 trials captured national attention, featuring media coverage in the Washington Post, The Intercept, and on CNN.com, as commentators weighed in with their disgust at the government’s decision to charge hundreds for destruction committed by a few.  And the prosecutors also made headlines after defense lawyers accused it of withholding evidence that could have damaged its case and helped hundreds of defendants prove their innocence.  The government’s malfeasance—and Kerkhoff’s in particular—caused the chief judge of the Superior Court to dismiss numerous charges against one group of defendants and preclude future prosecution on the primary charge. “I do think it’s a serious violation,” he concluded. “It was intentional in the sense that the government made intentional decisions that it made not to disclose.” These trials revealed something, as Harris put it, more “sinister” about the D.C. United States Attorney’s office: its willingness to hide evidence to win. 

An examination of Kerkhoff’s prior cases by The Appeal suggests that this misconduct did not occur in a vacuum.  It is present in other cases prosecuted by Kerkhoff, who was promoted to chief of the felony major trial division after she lost Harris’s trial, a division regularly given the office’s most important cases. And it speaks to a greater culture problem in the D.C. United States Attorney’s office.  The J20 trials placed this misconduct in the national spotlight.

The J20 trials

On Feb. 8, 2017, a grand jury in the District of Columbia handed down an indictment charging the J20 defendants with felony rioting, and two months later, they issued a superseding indictment charging 214 people with eight different felonies.  Lacking evidence that most of the more than 200 defendants caused any property damage, the government needed to show that the protesters engaged in a conspiracy to riot—in other words, that they agreed to participate in a protest that would cause destruction to persons or property. If prosecutors could prove this, each charged protester could be responsible for the damage caused by the other.  

As evidence, the government relied primarily on an undercover video filmed by Project Veritas of a Jan. 8 meeting by #DisruptJ20 as organizers planned the inauguration protests.  During the meeting, organizers discussed using blockades, and one organizer said he would make the inauguration a “giant clusterfuck.” The government’s use of the video drew extraordinary criticism on social media and in the press, in large part because of Project Veritas founder James O’Keefe’s reputation for deceptively editing videos. (In 2009, he disguised himself as a pimp and shot a video that falsely accused the voter-registration group ACORN of offering advice on using underage girls in the sex trade. In late 2017, he also tried to plant a false story with the Washington Post during the Alabama election involving the failed U.S. Senate candidate Roy Moore.)

Kerkhoff introduced the Veritas video at the first J20 trial on November 28 to demonstrate that activists (but not Harris or his co-defendants) discussed disrupting inauguration activities. She relied on it in her opening and her closing statements as significant evidence of a conspiracy. Nothing that occurred during the protest was “a coincidence,” she argued—it was planned.  She also assured the court this was the only Project Veritas video in existence, and that it was unaltered, “in complete, unredacted form.”

This was not true. In May of this year, long after the acquittals in Harris’s December trials and during the second set of trials, defense attorneys learned that the Veritas video was edited.  Either the prosecutor or the lead detective — defense lawyers could not figure out which —  removed a section of the video where the Veritas mole stated, “I was talking to one of the organizers … and I don’t think they know anything about any of the upper echelon stuff.”  That statement could blow apart the government’s theory that the protesters engaged in a highly organized plan to commit violence.  As one defense lawyer wrote in a pleading: “What better exculpatory evidence for the defense than the words from the person sent to capture a nefarious meeting stating right after the meeting ‘I don’t think they know anything.’”  The court found a Brady violation.

Later that week, defense attorneys learned that Kerkhoff had also failed to disclose 69 additional Project Veritas videos, 35 of which captured “action camps” or planning meetings for J20 where those present discussed how to de-escalate violence—the opposite of the government’s theory that the attendees were planning violence to ruin the inauguration.  Kerkhoff did not attend the May 31, 2018, hearing on the defense’s motion for Brady sanctions, allowing Assistant U.S. Attorney Ahmed Baset to respond to D.C. Superior Court Chief Judge Robert Morin’s repeated questions about why Kerkhoff misled the court.  Baset had no response.  Judge Morin dismissed the conspiracy charges against the six defendants before him and barred prosecution on that count forever, finding the government intentionally suppressed the video evidence.  “It was a glorious day for all of us,” Harris told The Appeal.  (The United States Attorney’s Office has since asked Judge Morin to reconsider his finding in a pleading that Kerkhoff did not sign, describing the court’s finding that an “Assistant United States Attorney made an intentional misrepresentation” as a “serious matter.”)

These were not the only Brady violations that defense counsel alleged in the J20 cases.  Harris says that just before the first trial, the government dropped a mountain of MPD body cameras—at least 933 video recordings—that had never been disclosed.  Harris says that many of the videos depicted officer violence — notable also given that one of the government’s key testifying witnesses, Officer William Chatman, wore a T-shirt that read, “Police brutality … or doing what their parents should have?” as he entered Superior Court to testify during the second trial.

In another pleading, defense lawyer Roy Austin accused Kerkhoff of committing a “fraud on this Court.” Kerkhoff previously believed Austin’s client had attended a planning meeting. Kerkhoff then changed her mind, but failed to correct her prior representation to the court or alert defense counsel. “AUSA Kerkhoff has ignored and continues to ignore her Brady-related discovery obligations,” Austin wrote.

Past allegations against Kerkhoff

Defense attorneys told The Appeal that this is far from the first time that Kerkhoff has exhibited questionable behavior in court, often in cases with even higher stakes involving poorer defendants.

In 2011, for example, Kerkhoff and another prosecutor tried five men for a series of 2008 shootings that rocked the Trinidad neighborhood of Washington, D.C., leaving a 13-year old boy caught in the cross-fire dead and several others injured.  Defense attorneys immediately requested any Brady material, but only a few weeks before trial, two years later, did they receive medical records showing that Kerkhoff’s key eyewitness reported experiencing bipolar disorder, schizophrenia or schizoaffective disorder, and hallucinations, and to hearing voices, around the time of the shooting. They also learned, for the first time, that the witness had used alcohol, marijuana, and PCP since the age of 7.  Defense attorneys wrote in a pleading filed with the court, this undermined the witness’ ability to “distinguish reality from fantasy,” accurately observe, and fairly report events. It was just the kind of information that should have been disclosed to the defense two years prior.  

Kerkhoff and her team received no sanctions from the court for this late disclosure and trial proceeded.  A jury nonetheless found all but one of the five defendants not guilty, and the D.C. Court of Appeals overturned that sole conviction in 2013, finding that the trial  judge’s instructions had coerced at least one juror into voting for guilt.

Kerkhoff’s assertions in a September 2017 federal court filing also reveal either her misunderstanding of her Brady obligations or her willingness to ignore them. Responding to the defense’s request for early disclosure of Giglio material—a subset of Brady that includes any material that negatively affects a witness’s credibility (like prior inconsistent statements about the same incident or examples of previous lies), she wrote that “the government need not disclose this material until after the witness has testified on direct examination.” This interpretation, albeit one often advanced by prosecutors, ignores the Supreme Court’s clear directive that prosecutors’ Brady obligations extend to any information that casts doubt on its case, regardless of label.  They must disclose that evidence before trial, not after it has already started.

Other examples include an allegation in a 2011 child sex abuse case, for example, Kerkhoff ran into the jury foreman on another colleague’s case.  The foreperson was an MPD detective she knew, and the jury was still deliberating. That night, she wrote an email to the prosecuting attorney, in which she said that she “spent the evening drowning my sorrows with a familiar face. You will have the remainder of the verdict tomorrow. Congrats on the guilty verdicts.” It is, of course, impermissible for jurors to talk anyone about the case that has not concluded, and prosecutors should never talk to a jury member about a case active in their office, lest they risk influencing the outcome, even inadvertently. The defense attorney moved for a mistrial, but Kerkhoff claimed that she merely spoke to the foreperson about whether he would soon be able to return to work.  The trial judge accepted her explanation and found no misconduct.

A broader problem

But allegations, and often findings of misconduct, are a problem that is office-wide.  Court pleadings and decisions reflect a broader culture problem in the office.  In 2010, for example, then-Assistant U.S. Attorney Amanda Haines stood proudly after a jury convicted Ingmar Guandique of murdering Chandra Levy—the Capitol Hill intern who had an affair with Congressman Gary Condit—as she ran through Rock Creek Park in the early morning hours of May 1, 2001. Because of Levy’s involvement with Condit, the case captivated the country for years as it went unsolved. In 2016, the government dismissed the case, (also standing before Judge Morin), as allegations mounted that prosecutors lied and allowed perjured testimony when its key witness, jailhouse informant Armando Morales, denied asking for any favors in exchange for testifying that Guandique confessed to the murders. As The Appeal recently reported, jailhouse informants “are a particularly risky and unreliable category of criminal informant” responsible for widespread wrongful convictions.  

Haines also found herself in hot water in 2005, when she tried Thomas Zanders for murdering Allen Lancaster as part of a retaliation for a robbery.  A jury convicted him, but the D.C. Court of Appeals found that while she disclosed that someone else had an argument with Lancaster at some point before the murder, she failed to mention the argument actually occurred the day before the murder in the exact same place as the subsequent shooting.  Ms. Haines went on to become a federal death penalty prosecutor for several years.

Similar allegations against the office abound in other less newsworthy but no less significant cases. In 2009, a trial judge granted Joseph Harrington a new trial in a stabbing death case after Assistant U.S. Attorney Vivien Cockburn failed to disclose to the defense that witness “L.G.” saw the government’s key eyewitness, “R.M.,” with a knife attached to her dress soon after the stabbing, looking disheveled.  She also never mentioned that R.M. stated: “Self-preservation is the first rule of law” when L.G. asked if she was involved in the stabbing. That evidence certainly implicated R.M. in the murder and provided her with a motive to falsely implicate Harrington. The trial judge called the nondisclosure “conscious and deliberate.” After an investigation, the D.C. Bar issued only an informal admonition to Cockburn. Cockburn continues to prosecute cases for the office.  

And there are other  examples. In 2011, the D.C. Court of Appeals reversed Tyree Miller’s assault with attempt to commit murder conviction because the government waited until after the trial started to disclose that the eyewitness believed the shooter used his left hand—a critical fact because Miller was right-handed.  In 2014, it reversed Carl Morton’s convictions for assaulting a Delaware prison guard because the government never mentioned officials were investigating the accusing officer eyewitness for making a false allegation in another prison guard attack case. And in 2016, it found that the trial court erred when it failed to adequately consider sanctions in Terry Johnson’s second-degree murder trial, because the government waited for over a year to disclose that someone other than Johnson had a motive to kill the decedent, and that this person was rumored to have placed a $20,000 bounty on the decedent’s head.

And yet this is just the misconduct available in published pleadings or captured by reporters watching high profile cases. According to Phil Andonian, one of the attorneys on the J20 case: “Brady violations are nothing new, and are hardly ever treated this seriously.  The difference in the J20 cases, sadly, is that hundreds of lawyers from all over the city — from solo practitioners to Big Law institutions — worked together to hold the government accountable in a case that was unpopular from the beginning.  This magnitude of defense resources and public backlash are rarely features of the criminal-justice system. Which is why the government so often flies comfortably under the radar.”

(Asked about the misconduct allegations in the J20 case and whether there is a Brady violation or culture problem in the United States Attorney’s Office, a spokesman told The Appeal, “We have no comment beyond what we have submitted or stated to the Court.”)

Perhaps change will come to the D.C. United States Attorney’s office because of the high-profile failures in the J20 trials. Several of the J20 defendants recently expressed their intent to file a complaint with the Office of Disciplinary Counsel.  They are well positioned to do so, with all eyes watching and little chance of future repercussions.

But prosecutors rarely receive meaningful punishment.  Often, bar counsel never learns about alleged prosecutorial misconduct.  Defense attorneys are usually in the best position to report it, but tend to worry that prosecutors will stop giving favorable plea deals to their clients or will even target their clients for enhanced or future prosecution. And even if aware that a prosecutor is violating the Constitution, bar counsel rarely acts. There is the occasional exception: In 2012, bar counsel suspended U.S. Attorney Paul Howes’s license after attorneys learned that he distributed $42,000 in illegal witness payments in various cases, failed to tell defense attorneys about those payments, and also lied about them in court. But just five years later, the D.C. Court of Appeals reinstated his law license after an initial suspension. Until trial judges, the bar, and the United States Attorney’s office, whose mantra is “the fair and impartial administration of justice for all,” punishes bad behavior, it most likely will be business as usual in D.C. Superior Court.