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Prosecutor accuses D.C. police of making rioting arrests with insufficient evidence

Marchers protesting for racial justice toppled newspaper boxes and set some of them on fire in D.C.’s Adams Morgan area before converging near the White House on Saturday night.
Marchers protesting for racial justice toppled newspaper boxes and set some of them on fire in D.C.’s Adams Morgan area before converging near the White House on Saturday night. (Clarence Williams/The Washington Post)
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Federal prosecutors on Tuesday accused D.C. police of using insufficient evidence to arrest demonstrators accused of rioting, putting the U.S. attorney’s office and local authorities at odds over how to deal with days of unrest in the District.

The written rebuke came one day after D.C. Mayor Muriel E. Bowser (D) publicly criticized the U.S. attorney’s office for not pursuing most of the criminal ­charges filed by police against nearly 70 people arrested during protests since mid-August. She also sent a letter to prosecutors detailing her complaints.

Noting the mass arrests three weeks ago of 42 people who police said were in a group that spray-painted buildings and set fire to patio umbrellas in Northwest Washington’s Adams Morgan area, acting U.S. attorney Michael Sherwin told Bowser in his own letter that he had no choice but to drop charges against all but one defendant.

“The ‘42 rioters’ were arrested as a collective by MPD and presented to the Office without any articulable facts linking criminal conduct to each individual arrested,” Sherwin wrote in his letter. “Simply put, we cannot charge crimes on the basis of mere presence or guilt by association.”

In his letter, Sherwin says he met with police leaders to request help “to further develop these cases to establish a bare minimum of probable cause. To date, no sufficient evidence has materialized.”

Bowser’s office did not immediately comment on Sherwin’s letter. But the Bowser administration said Monday that Sherwin’s office has declined police applications for 28 arrest and search warrants related to the unrest and has not yet processed two dozen others. Sherwin did not address these warrants in his letter.

Mayor blames outside agitators for violence at demonstration

This new conflict over the response in the nation’s capital to months of disruptive and sometimes violent demonstrations against police brutality comes against a backdrop of deadly violence at demonstrations in Kenosha, Wis., and Portland, Ore.

It pits a federal prosecutor selected by the Trump administration against a mayor who has emerged as a leading Democratic voice on issues affecting cities and a sharp critic of President Trump. It comes two months before an election in which the president is portraying himself as the “law and order” candidate and accusing Democrats of being soft on crime.

The discord brewing in the District appears to flip that script, involving broader disagreements over tactics and strategies used to shut down civil unrest. It puts Bowser in an unusual position — a Black mayor of a liberal city defending law enforcement and accusing a U.S. attorney of failing to support her officers and residents affected by unrest.

Black Lives Matter DC tweeted that Bowser is asking for Trump’s assistance in “creating political prisoners,” while Sherwin’s letter echoes complaints heard from criminal defendants and defense attorneys who accuse police of making indiscriminate and mass arrests.

Police arrest 42 suspects after tense standoff in Adams Morgan

Meanwhile, Trump has been calling for Bowser and her police force to take a tougher stand, tweeting Sunday that she “should arrest these agitators and thugs! Clean up D.C. or the Federal Government will do it for you. Enough!!!”

Bowser fired back Monday, saying that her officers do make arrests and that it is Trump’s appointed prosecutor in the District who has failed to follow through. The tension seemed to grow as Sherwin responded in his letter, saying he cannot follow through on cases that lack merit.

“As I am sure you are aware, without some evidence to establish probable cause of a particular arrestee’s criminal conduct — e.g., a police officer’s observation or video footage of the alleged crime — we cannot bring federal ­charges,” Sherwin wrote. “Surely, by your comments, you are not suggesting that this Office skirt constitutional protections and due process.”

Authorities ran into similar evidentiary problems after the riot in January 2017 at the presidential inauguration. Officers arrested more than 230 people, many of them linked by police to a group called DisruptJ20, which authorities alleged was intent on vandalizing the city. In the end, 21 people pleaded guilty, five were acquitted at a trial and prosecutors dropped charges against the others, saying they were unable to link defendants to specific crimes.

Unlike states, where elected prosecutors handle serious cases, the District is unique in that the U.S. attorney’s office is tasked with prosecuting most local crimes and all federal cases. That means city police and federal prosecutors must work together on a daily basis.

Sherwin said his office has prosecuted more than 125 criminal cases since demonstrations began across the country in May, filing charges involving assaults on police and civilians, breaking into private property and destruction of monuments.

“This represents the most criminal cases charged by any United States Attorney’s Office nationwide,” Sherwin wrote.

But he said arrests at violent demonstrations this past weekend also had problems with evidence. Prosecutors pursued charges against just one of 19 people arrested, saying it was the one case that met the “minimal threshold” of evidence.

He added, “I can assure you that we will continue to aggressively charge any and all cases presented to this Office, but facts and evidence will dictate criminal charges, not political leveraging or personal agenda.”