The D.C. Superior Court judge overseeing the trial of six people charged in Inauguration Day protests that turned violent has dismissed one of the most serious charges of inciting a riot.
After hearing the cases presented by prosecutors and defense attorneys during the past three weeks, Judge Lynn Leibovitz on Wednesday said there was not enough evidence against the four women and two men to prove they urged others to riot and destroy property along 16 downtown Washington blocks.
"None of them engaged in conduct that amounted to urging other persons to destroy property," the judge said.
The six defendants are the first to go to trial in Inauguration Day rioting cases; more than 150 others who were arrested are set for trials in coming months. Prosecutors said the group of protesters smashed store windows with bricks, hammers and crowbars and damaged a limousine Jan. 20, the day President Trump was sworn in.
Leibovitz's decision to dismiss the felony charge was a blow to prosecutors, who aggressively argue that all the protesters in the group bear responsibility for the rioting and damage even though there is no evidence the six people on trial participated in any vandalism.
Defense attorneys said their clients were protesting peacefully and exercising their right to freedom of speech. They said that only a small number of protesters broke off from the group and turned violent and that police overreached by making mass arrests.
The charge of inciting a riot carries a maximum penalty of up to 10 years in prison and a fine of up to $25,000. Leibovitz dismissed the charge on a defense motion after attorneys presented their evidence and before closing arguments in the case.
The defendants still face seven charges, including five felony destruction of property counts, which carry up to 10 years in prison, and two misdemeanor engaging in a riot charges, each carrying up to 180 days in jail.
On Wednesday afternoon, Leibovitz denied requests from defense attorneys to dismiss those counts, saying there was enough evidence for jurors to weigh whether the defendants should be found guilty. She noted the government's argument that the defendants were aware of the destruction of property and that the crowd of protesters — dressed in black so it was harder to identify them — provided cover for the vandals among them.
On trial in the case are Michelle Macchio, 26, of Naples, Fla.; Jennifer Armento, 38, of Philadelphia; Christina Simmons, 20, of Cockeysville, Md.; Alexei Wood, 37, of San Antonio; Oliver Harris, 28, of Philadelphia; and Brittne Lawson, 27, of Pittsburgh.
During a brief intermission in the hearing, Wood's attorney, Brett E. Cohen, said he was "surprised and relieved" by the judge's decision.
"We still have a long way to go with the other charges," he said.
Steven J. McCool, Harris's attorney, called the judge's decision a "very positive development in the case."
In her ruling, Leibovitz said the incitement charge requires prosecutors to prove that the defendants made a deliberate attempt to encourage people to riot. The judge found that any excitement or enthusiasm shown by defendants that day didn't amount to incitement and that no reasonable juror could find them guilty of that count based on the evidence.
During the trial, prosecutors set out to re-create the chaos of the 33-minute march through downtown Washington the morning on Jan. 20. Employees of a Starbucks and a gas station described their fear as protesters pounded on or smashed windows, and prosecutors played video taken by surveillance cameras and cameras worn by police officers that captured the mayhem.
Assistant U.S. attorneys Jennifer Kerkhoff and Rizwan Qureshi argued that the six defendants were marching with the rioters at the time of the vandalism and failed to peel off from the group.
The protest was organized by a group called Disrupt J20, and authorities say the rioters used "black bloc" tactics — wearing all black and hiding their faces with masks and goggles so identifying them would be harder.
When the defense presented its case, friends and employers of the defendants took the stand as character witnesses, describing those on trial as peaceful people not prone to violence. The defendants did not testify.