The trial of six people facing more than 50 years in prison over felony charges related to January 20 protests against the inauguration of US President Donald Trump neared its conclusion on Friday as the jury began its deliberations.
Nearly 200 people were charged with various felonies and misdemeanours related to destruction of property – mostly windows of businesses – after being arrested during a protest in Washington, DC on inauguration day.
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The charges stem from the January 20 demonstration against the inauguration of Trump, organised by an umbrella group, named Disrupt J20, which included anti-capitalist, anti-fascist and other activists and individuals.
One of the accused in the first trial is Alexei Wood, a journalist whose live video streams show he did not participate in destruction of property.
He was arrested, along with more than 230 other people, including observers, bystanders, activists and medics.
Some have pleaded out and others have had their charges dropped, but more than 190 people still face felony and misdemeanour charges.
Jury deliberations began in the late afternoon on Friday and followed Judge Lynn Leibovitz’s dismissal of a felony count of incitement against the defendants on Wednesday, knocking 10 years off the 60 years of prison time the defendants faced.
Leibovitz dismissed the charge because the justice department‘s prosecution team, headed by lawyer Jennifer Kerkhoff, were not able to prove that the defendants incited a riot.
“I don’t agree that the state of mind of wanting a riot to occur is equal to the state of mind of aiding and abetting the incitement of a riot to occur,” Leibovitz told the courtroom, according to US media.
Scott Michelman, senior staff attorney for the ACLU-DC, told Al Jazeera that “this ruling confirms what we’ve known all along: that the government doesn’t have the evidence to prove all the charges”.
Michelman added: “As to the remaining charges, we hope the jury’s verdict will vindicate the principle that our system doesn’t allow guilt by association.”
Jude Ortiz, chair of the National Lawyers’ Guild Mass Defense Committee and part of the defence team in the trial, told Al Jazeera this “is a significant blow to the prosecution and the state’s theory of the case”.
In criminal trials, the prosecution and defence craft narratives that are meant to shape jurors’ understanding of the events in question. Kerkhoff’s prosecution has relied on evidence from far-right sources to craft their narrative.
The prosecution used a portion of a livestreamed video from Lauren Southern, a Canadian far-right blogger and YouTuber who tried to block refugees from crossing the Mediterranean Sea over the summer.
Southern was in the January 20 “kettle”, a police tactic that involves officers surrounding and closing in on a group of demonstrators in an effort to contain them, but was let out.
The far-right blogger has admitted to lying to police officers in order to secure her release, saying she was pregnant at the time.
Ortiz claimed the prosecution attempted to use Southern’s livestream, which was originally broadcast through The Rebel Media, a far-right political and social commentary website with ties to Trump-supporting groups, to show a people acting “in concert” in a “sea of black masks”.
Most of the protesters that day were clad in black attire associated with anarchist and anti-fascist groups.
Stills from Southern’s video and others were used to create collections that highlighted certain items, such as goggles or backpacks, and attempted to track said items throughout the protests.
By tracking the items, the prosecution attempted to place alleged offenders at certain locations in the protest.
Video from Project Veritas (PV), a right-wing nonprofit organisation whose stated mission is to “investigate and expose corruption, dishonesty, self-dealing, waste, fraud and other misconduct”, but typically targets liberal and left-wing groups in undercover “sting operations”, was also shown in court.
The footage came from an undercover PV affiliate who videotaped a January 8 planning meeting at a church in Washington, DC. This was used to aid the testimony of Bryan Adelmeyer, a DC police officer tasked with infiltrating the group.
Robert P Burns, a professor of law at Illinois’s Northwestern University, said that while the prosecution may not call a witness or enter evidence they know to be false, US courts give both the prosecution and defence “a fair amount of latitude in the story they choose to tell”.
Every aspect of this story or narrative must be “supported by … evidence that will be admitted in the case”, he said.
Concerns over this evidence coming from far-right or conservative sources can be easily brushed aside by the prosecution saying it has “to take believable evidence from where [it] can find it”, Burns added.
However, trial procedures allow the defence to challenge the “bias and prejudice” of the evidence, Burns concluded.
Undercover officer Adelmeyer was asked by the defence if was aware of PV’s political leanings.
Adelmeyer confirmed he had learned of PV’s conservative political ideology after several controversies, including a failed attempt to out the Washington Post as biased, circulated in the media.
Jurors had less than two hours to weigh evidence on Friday afternoon before a weekend recess. They will resume deliberations on Monday morning.
Sam Menefee-Libey, a member of the DC Legal Posse, a group that provides support to the J20 defendants such as transportation, hospitality told Al Jazeera it was troubling that the jury would be presented evidenced from “a plethora of neo-fascist sources” that are being used to “criminalise people from an anti-fascist march”.
If verdicts are not reached by December 22, jurors will have a holiday recess until December 27. That will be followed by another holiday recess that begins on December 29 and lasts until January 2. The jury could reach a verdict at any time.
While the trial could end before January, there is still a long legal road ahead.
Menefee-Lieby concluded by saying it’s “important to remember that these are just the first six of 194 defendants” in legal proceedings surrounding J20.
Trials for the remaining defendants are scheduled throughout 2018.