The second trial stemming from Inauguration Day protests ended Thursday with no convictions, a blow to federal prosecutors who have struggled to hold people accountable for vandalism that included smashing windows of businesses.
During the course of nearly five days of deliberations, a D.C. Superior Court jury considered cases against four defendants. One person was acquitted on all charges. For the other defendants, the jury delivered not-guilty verdicts on some counts and deadlocked on others.
Prosecutors had expected they would be victorious, contending that the cases against the four defendants were among the strongest they had built in connection with the January 2017 mass arrests. The disturbance stretched over 16 downtown Washington blocks, with many participants wearing all black and covering their faces with masks or scarves. In all, 234 people were charged.
At the start of the trial last month, prosecutors rolled out numerous photographs and videos, including those from police body-worn cameras and cellphones, which they said depicted three of the four defendants participating in the vandalism during anti-Trump protests.
Defense attorneys argued the images were grainy and said their clients were not the ones shown smashing widows and causing other destruction.
In the end, jurors said, not all of them were convinced by the government.
“It came down to identity. We could not without a reasonable doubt say that these were the ones who were rioting,” said the jury foreperson, a 52-year-old woman from Adams Morgan who spoke on the condition of anonymity to protect her privacy.
The jury was unable to reach a verdict in the case of Michael Basillas, 32, of New York, who was accused of participating in the vandalism. Judge Kimberley S. Knowles on Thursday declared a mistrial.
Also Thursday, the jury acquitted Anthony Felice, 26, of Wilmington, N.C., on a charge of assaulting a police officer. Jurors deadlocked on a rioting charge against him.
Earlier in the week, Seth Cadman, 27, of Virginia Beach, was acquitted of most criminal charges, but jurors deadlocked on one count of engaging in a riot.
Prosecutors will decide at a hearing next month whether they will retry those three defendants.
“Given the government’s success rate, or lack thereof, I would hope the U.S. attorney’s office would do what is appropriate and dismiss these charges,” Basillas’s attorney, Billy Jacobson, said outside the courtroom.
One defendant, Casey Webber, 29, of the District, was found not guilty of all charges. Webber was charged with helping to organize the riots. Prosecutors displayed private messages taken from his social media account, but jurors later said the messages proved only that Webber was attending the protest.
The verdicts were the latest sign of the struggle prosecutors in the U.S. attorney’s office in the District have had in the case.
The first trial in December resulted with acquittals for all six co-defendants, and jurors afterward said prosecutors failed to present any evidence linking the defendants to the vandalism.
So far, 21 defendants arrested in the protests have pleaded guilty before trial. Prosecutors also have dropped more than 150 cases — including 10 that were dismissed after a judge found that the U.S. attorney’s office failed to turn over some video evidence to the defense. There are 47 cases left scheduled for various trials throughout the year.
In the latest trial, no witnesses were able to identify the vandals in the videos. Instead, prosecutors used various articles of clothing, eyeglasses and details of sweatshirts to make their case that the defendants were the ones depicted.
Assistant U.S. Attorneys Jennifer Kerkhoff and Rizwan Qureshi argued that Cadman, Basillas and Felice could all be seen breaking windows.
“You will see for yourselves images of the defendants smashing windows, and one of them can be seen tossing a lit flare,” Kerkhoff told jurors.
As they did during the first trial, employees of businesses that were vandalized, including a Starbucks and a BP gas station, testified about having to hide as they watched rioters smash their windows with rocks and crowbars.
Halfway through the trial, prosecutors introduced a controversial video of a protest planning meeting. The video was made by the group Project Veritas, which uses secret recordings to target the mainstream news media and left-leaning groups. Prosecutors sought to use the recording to show the planning of the demonstration and the participation by the defendants.
Defense attorneys were able to determine that at least one edit was made to the video beyond the edits prosecutors had acknowledged. That edit, they argued, put them at a disadvantage because it deleted a comment made by the Veritas videographer.
Knowles agreed, ruling that Kerkhoff, who is the lead prosecutor, had violated judicial evidentiary rules. Kerkhoff recently was promoted to chief of the Felony Major Crimes section of the U.S. attorney’s office.
One 42-year-old juror from Shaw said prosecutors “made an error” using the Project Veritas video because it showed individuals at a Jan. 8, 2017, meeting planning to prepare for the protest but no one discussing vandalism.
Another headache that emerged for prosecutors was the testimony of D.C. police officer William Chatman, a motorcycle officer who told the jury that some rioters threw chairs at him as he drove through the crowd. Defense attorneys showed video from his body camera that captured other officers deploying pepper spray and tackling running protesters. They asked the officer if he thought his colleagues had used excessive force. Chatman replied that the response was necessary to curtail demonstrators who were violent.
Days later, a defense attorney called Chatman back to the stand to show the jury a T-shirt the officer wore to the courthouse during his earlier testimony but did not have on in the presence of the jury. The T-shirt read: “Police Brutality. Or doing what your parents should have?”
Chatman said the T-shirt was a joke and was “tongue [in] cheek.” Knowles put her face in the palm of her hand as Chatman testified about the shirt, and defense attorneys questioned whether he thought it was “appropriate.” As Chatman left the witness stand, several people in the audience whispered, “Boo,” and another member of the audience, a minister wearing a collar, said, “Shame.”