Six More J20 Protest Prosecutions Dismissed As Gov't Admits To Hiding Exculpatory Evidence From Defendants

from the self-defeating dept

Fri, Jun 1st 2018 3:42am — Tim Cushing

The government has dismissed more defendants from the J20 protest prosecution. A mass prosecution that ensnared journalists and activists -- along with those who may have actually participated in damaging property -- has gradually disintegrated as the government has undermined its own efforts again and again. (To say nothing of the multiple times the government tried to undermine the prosecution, starting with the mass First Amendment incursions of arresting journalists, before heading on to broadsides of the Fourth thru Sixth Amendments.)

The government isn't done blasting holes in its feet just yet. Alan Pyke, reporting for ThinkProgress, says the prosecutorial fiasco the government is trying to abandon contained a host of Constitutional violations.

Federal prosecutors hid scores of videos from the hundreds of anti-Trump demonstrators they charged with serious felonies in an unprecedented crackdown on Inauguration Day protests, defense lawyers alleged in an overnight filing Wednesday.

The new accusations exacerbate an existing crisis for prosecutors, who already admitted last week to hiding one 55-minute video and misrepresented edits they made to another video. That initial screw-up, known to lawyers as a Brady violation, already jeopardized the case.

But that initial, single Brady violation is actually part of a much broader pattern of evidence-concealing, the lawyers now say. The government has concealed another 69 separate recordings — three audio files and 66 videos — of planning meetings for the Inauguration protests known as #DisruptJ20, defense lawyers say in the motion.

The government had an unlikely ally in its prosecution -- right-wing, half-arsed sting operation Project Veritas. The prosecution relied on videos supposedly containing protesters discussing plans for mayhem and violence. This is what the government needed to rope 50-some protesters in on conspiracy charges, something it could salvage when tying defendants to actual violence or destruction proved impossible.

But the videos the government obtained -- but did not turn over to the defense -- showed something else.

The recordings, which were made by employees of the right-wing Project Veritas, purportedly show defendants discussing de-escalation tactics and their intent not to initiate physical violence with anyone unless they are attacked first. The prosecutor had previously told the judge that no recordings existed from the meetings where the newly revealed audio and videos were made.

The government now says it will not use any videos from Project Veritas in the trials of the 59 remaining defendants. This gesture may be too little, too late. It's also completely self-serving. If the government ditches the Veritas videos, the defense will struggle to have charges dismissed because of the government's Brady violation. The court may rule the violation only concerned evidence the prosecution isn't using -- a "no harm, no foul" ruling that lets the government have its Brady violations and its prosecutions too. Hopefully, the court will take note of the government's attempt to have it both ways and deny it in full.

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Filed Under: brady violation, doj, free speech, j20, protests, withholding evidence
Companies: project veritas

37 Comments

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That One Guy (profile), 1 Jun 2018 @ 1:58am

What's a few lies in court between friends, right?
The new accusations exacerbate an existing crisis for prosecutors, who already admitted last week to hiding one 55-minute video and misrepresented edits they made to another video. That initial screw-up, known to lawyers as a Brady violation, already jeopardized the case.

But that initial, single Brady violation is actually part of a much broader pattern of evidence-concealing, the lawyers now say. The government has concealed another 69 separate recordings — three audio files and 66 videos — of planning meetings for the Inauguration protests known as #DisruptJ20, defense lawyers say in the motion.

Yeah, if the judge involved doesn't, at a minimum dismiss the charges with prejudice after that they might as well just let the prosecutor have their seat, because it'll be clear they aren't there to do anything other than whatever the government tells them to and are more than willing to be lied to directly by the prosecution.

If anyone can get away with such blatant contempt for the law and concept of justice in the court then the judge might as well retire in disgrace and let someone who's actually competent and/or not completely corrupt take the job.
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That Anonymous Coward (profile), 1 Jun 2018 @ 4:01am

If only there was some sort of governmental agency...
like a Department of Justice that upheld the law & pushed to punish those who violate the law of the land & pervert the course of justice.

So the witch hunt gets worse...
I mean they already tried to tell Jurors that reasonable doubt wasn't a thing...

We are wasting millions of dollars trying to frighten people into not protesting Trump.
They can't manage to find the people who actually committed crimes, so they try to portray all of them as bad apples.
By that metric, shouldn't they arrest themselves?? Their oversight in Congress engages in insider trading so because they are in the same place we should arrest all of them.

'Merika.... and you all laughed at the idea that giving up rights was a slippery slope.
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Daydream, 1 Jun 2018 @ 5:10am

And the sad part is:
There won't be any protests, or riots, or even anybody bothering to complain about this other than the regular bunch of internet commentators going tut-tut.
Because the whole world is so used to prosecutorial misconduct in America, or heck, government misconduct in general, that we've all been completely desensitised to stories like this.

Now, I shall attempt to pretend that this sort of story isn't normal.

"Oh my god. Oh my fucking god. I can't fucking believe this. This is beyond disgraceful. These prosecutors are a disgrace to the entire world. Hiding and editing evidence to get a conviction is something only a totally corrupt dictator could possibly allow.
I've started a petition at example.com/petition_badprosecution to get these monsters fired for daring to fabricate crimes so they can send innocents to prison; share the link so we can get as many names as possible to show our president, and spread word of just what these scumbags tried to do."
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Anonymous Coward, 1 Jun 2018 @ 5:21am

Re: And the sad part is:
Your are presuming that the president isn't behind these prosecutions, which is almost certainly a mistake.
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Bruce C., 1 Jun 2018 @ 5:30am

Re: What's a few lies in court between friends, right?
If this does end up going to trial, what's to prevent the defense from introducing the exculpatory recordings as evidence even if the prosecution doesn't introduce the others?
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Anonymous Coward, 1 Jun 2018 @ 5:33am

Re:

Department of Justice

Sadly, the only US institution by that name seems to be intent on using it in an Orwellian fashion.
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Stephen T. Stone (profile), 1 Jun 2018 @ 5:41am

I'll bite the bullet on this one.

The government has concealed another 69 separate recordings

Nice.
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MathFox, 1 Jun 2018 @ 5:42am

Re: Re:
It is not the only US institution that uses it's name in an Orwellian fashion... What to think of
- House of Representatives
- Democratic Party
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Toom1275 (profile), 1 Jun 2018 @ 5:48am

made by employees of the right-wing Project Veritas

Well there's your problem

Deception and attempted entrapment, followed up by doctoring the secretly-obtained videos until they appear the show the complete opposite of the source material, to prop up bizarre right-wing theories that otherwise have zero "evidence" behind them, is Project Veritas's one and only function for existing.

They're the ones behind these lies, and the videos that "prove" them:

"Planned Parenthood sells baby parts"

"WaPo's reporting on Roy Moore are deliberate hit pieces"

"Twitter is specifically targeting Conservatives for silencing."

It's like when Lamar Smith and Judicial Watch based their "NOAA faked global warming data" lawsuits (that failed) on a whole-cloth made-up claim in an article from the Mail on Sunday, a sister tabloid to the Daily Mail.

One would think basing your court case on works of sensationalist tabloid fiction, like they did and the J20 prosecutors are doing, wouldn't exactly be the smartest course of action. But hey, if you have no integrity like this administration, than anything that fits your narrative must be automatically valid.
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Toom1275 (profile), 1 Jun 2018 @ 5:50am

Re:
Sigh.
When "preview" mode lies to you about how the formatting will actually look.
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Anonymous Coward, 1 Jun 2018 @ 5:54am

Re: Re: What's a few lies in court between friends, right?
That assumes that the defense can get copies of the recordings. As the government is not going to use the recordings, do they have to hand copies to the defense?
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Anonymous Coward, 1 Jun 2018 @ 6:16am

Goodhart's law strikes again
It is my continuing belief that all too many government prosecutors consider the justice system to be a zero sum game where the objective is "winning" instead of actually justice. And this makes sense since there performance evaluations are based upon win/loss records.
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Anonymous Coward, 1 Jun 2018 @ 6:26am

Re: Re: Re:
Homeland Security is going to end up being the end all be all of Orwellian insanity once its deeds have been made public.
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Anonymous Coward, 1 Jun 2018 @ 6:29am

Re: Goodhart's law strikes again
Why shouldn't they? It costs them nothing, has no negative ramifications back onto themselves and causes their victims to suffer financially, even if they manage to stay out of jail. Certain states have been using this kind of judicial punishment for years on those they hate.
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BentFranklin (profile), 1 Jun 2018 @ 6:32am

In cases of prosecutorial misconduct, the most fitting penalty is for the prosecutors to receive a sentence equal to the sentence that the defendant would have received.
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wshuff (profile), 1 Jun 2018 @ 6:45am

Re: Re: Re: What's a few lies in court between friends, right?
I would think yes. As it appears exculpatory, it is certainly relevant, and it could lead to other admissible evidence that helps the defense. I don't think allowing the government can simply wash its hands of the Brady violation by claiming, "Oh, it's ok, though, because we're not going to use this evidence that completely undermined our case. We'll just withhold it."
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Anonymous Coward, 1 Jun 2018 @ 7:00am

Re: Re: Re:
Well, at least the Executive Branch likes killing people...
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Anonymous Coward, 1 Jun 2018 @ 7:19am

Re: Re: Re: Re: What's a few lies in court between friends, right?
But it might require the defense to fight for the evidence as far up the appeals process as the DOA care to take it, and who will pay for that fight?

Also, if the DOA think they might loose, they are likely to drag out the case as long as possible out of pure vindictiveness, if they cannot use the delay to force a plea bargain.
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Anonymous Coward, 1 Jun 2018 @ 8:06am

They hate us for our freedoms
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nerd bert (profile), 1 Jun 2018 @ 8:37am

Re:
When you politicize "Justice" to serve your partisan agenda, you get things like this. We've been seeing increasing politicization in recent years, and now it's just seen as the norm in that department to serve the current master.

The question is how we get back to a bureaucracy that actually is non-partisan. Perhaps a first step is to prevent partisan appointees from "burrowing-in" to various departments at the end of each administration. Right now it's very typical for political appointees to become allegedly unbiased administrators at the end of each administration. Preventing that would certainly defuse things like Lois Lerner's IRS behavior and the crap storm that raised.

Of course, routinely punishing Brady violators would be a huge deterrent if applied to prosecutors personally. It's actually quite disturbing that judges aren't more willing to slap down prosecutors for such a basic violation of Constitutional rights.
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nerd bert (profile), 1 Jun 2018 @ 8:53am

Re:
Your comments are not germane in this instance.

The Project Veritas folks released all the videos/audio. It is the government that lied about the contents. Reread that ThinkProgress report:

The recordings, which were made by employees of the right-wing Project Veritas, purportedly show defendants discussing de-escalation tactics and their intent not to initiate physical violence with anyone unless they are attacked first. The prosecutor had previously told the judge that no recordings existed from the meetings where the newly revealed audio and videos were made.

Further:

“The Government has succeeded in misleading over 200 co-defendants, their attorneys, and three Honorable Superior Court Judges to believe there were only seven videos in its possession from Project Veritas,” attorney Andrew Clarke wrote in the filing. “Only by Order of the Court and more recently, its own disclosures, we now know the truth, that the Government withheld 69 additional recordings by Project Veritas and altered others.”

In this case the Veritas guys are blameless and we need to blame the government and its prosecutors for both withholding and altering (!!!) the videos in question.
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Anonymous Coward, 1 Jun 2018 @ 9:46am

Re: Re: Re: What's a few lies in court between friends, right?
Reasonable doubt. We all know the recordings exist now. If they aren't presented as evidence, the knowledge of them and what they contain is something the Defense already has, and they can present that instead. The only way to counter this would be for the Prosecution to provide the material as evidence.

Seems to me that the Defense could also subpoena the videos,couldn't they?
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Anonymous Coward, 1 Jun 2018 @ 10:02am

Re: Re:
.. and we are all still supposed to believe that justice is blind.

LOL
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Anonymous Coward, 1 Jun 2018 @ 10:33am

Re: Re: Re:
clearly it is blind due to the DOJ trying to poke its eyes out.
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Uriel-238 (profile), 1 Jun 2018 @ 11:33am

"prosecutorial misconduct"
That's the phrase I was looking for.

Agents of the state (in the form of prosecuting attorneys) using deception to secure convictions is a gross betrayal of the people and the institution of justice and law.

So why aren't these people getting tried and imprisoned, if not drawn and quartered?

Considering how corrosive such methods are to the integrity of society, given it demonstrates the established system fails to serve justice, this may actually warrant vigilantism. Pirates might serve the people where emperors fail to do so.

I suppose, historically, this is how mafias gain power.
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Uriel-238 (profile), 1 Jun 2018 @ 11:35am

"They hate us for our freedoms"
The aristocracy always feels the rabble take too many liberties.
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That One Guy (profile), 1 Jun 2018 @ 12:24pm

Re:
I wouldn't say equal, I'd say doubled at the least, with an even higher multiplier when it can be demonstrated that they are knowingly, blatantly violating it, as is the case here.

Those who are supposed to defend and/or enforce the law should be punished all the more for violations of it, especially when those violations stand to make others suffer.
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Anonymous Coward, 1 Jun 2018 @ 1:17pm

Re: "prosecutorial misconduct"

So why aren't these people getting tried and imprisoned, if not drawn and quartered?

Because "prosecutorial immunity" trumps "prosecutorial misconduct," and that particular fact always benefits the people currently in power, and always will, so good luck getting them to change it.
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Anonymous Anonymous Coward (profile), 1 Jun 2018 @ 1:17pm

Question
Is there any chance those released could sue for false arrest?
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ECA (profile), 1 Jun 2018 @ 1:52pm

Love this idea..
WHO do we Sue for constitutional violations?
Police/state/fed??
AND getting back the videos??
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That One Guy (profile), 1 Jun 2018 @ 2:58pm

Typo spotted
The aristocracy always feels the rabble have too many liberties.
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Bergman (profile), 1 Jun 2018 @ 10:23pm

Re: Re: Re: Re: Re: What's a few lies in court between friends, right?
DOA? Who is Dead On Arrival? Or did you mean DOJ?
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Uriel-238 (profile), 2 Jun 2018 @ 12:49am

Sounds like a rap song...or something from HAIR
DAs DOA in the DoJ
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JEDIDIAH, 2 Jun 2018 @ 6:11pm

Slay that cow.
I also like how he tried everything he could to avoid giving any sort of credit or legitimacy to the real heroes here simply because they don't belong to the right partisan tribe.

They seem to be one of the only entities doing anything resembling investigative journalism anymore. Except they're willing to go after the wrong sacred cows.
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JEDIDIAH, 2 Jun 2018 @ 6:12pm

No. That's not the sad part.
All of this bitching and moaning and it turns out that the "evil machine" is actually working the way it's supposed to. It's not generating the result that the "conspiracy" is supposed to want.
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JEDIDIAH, 2 Jun 2018 @ 6:14pm

More blind tribal nonsense.
This is nothing more than bog standard yellow journalism. You just don't like the fact that they go after your own sacred cows. If they were really that evil, I am sure they would have been tempted to completely distort what they recorded.

Instead they went against what's supposed to be their presumed narrative.
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Toom1275 (profile), 3 Jun 2018 @ 6:11am

Re:
Whenever Veritas is involved, the truth that they record only finally comes out whenever some third party gets their hands on the unretouched source videos. There' no indication en either article that this was not also the case.

It's factually unsupported to claim that Veritas was a good guy here simply because someone got their hands on the before-intentionally-deceptive-edits videos. But that's par for the course for trolls and trash.
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