The Washington PostDemocracy Dies in Darkness

Opinion I was a defendant in an Inauguration Day protest case. I got off. That’s justice.

Police in riot gear contain a group of protesters at the corner of 12th and L streets NW on Inauguration Day in 2017. (Jahi Chikwendiu/The Washington Post)

Elizabeth Lagesse was a defendant in one of the Inauguration Day protest cases.

In recent interviews, D.C. Police Chief Peter Newsham showed a troubling lack of regard for the core principles intended to ensure that justice is the aim of our justice system. Remarks from local prosecutors also support a conclusion that many officials within that system seek victories above just outcomes.

Newsham clearly views the outcome of the “J20” inauguration protest cases as a miscarriage of justice. Only one person spent a short time in jail as part of a plea agreement, despite charges that threatened more than 200 defendants with sentences of up to 70 years. The vast majority of those charged were acquitted or had their cases dismissed by prosecutors. Two jury trials for 10 defendants ended without a single conviction — a stark defeat for the prosecution team.

If the possibility that justice was served by these acquittals and dismissals occurred to Newsham, we would not know it from his recent public statements. Speaking to WTOP’s Neal Augenstein, Newsham placed the blame on the standards required of prosecutors at trial: Establishing probable cause for facilitating a crime “is much easier than establishing it beyond a reasonable doubt.”

Newsham added that he thinks the District’s rioting statute should be tweaked to enable “facilitation cases.”

In his frustration at the difficulty of persuading a jury to convict defendants based on their mere presence at the J20 protests, Newsham seems to forget that proof beyond a reasonable doubt is required for all criminal convictions. That will remain the standard no matter how broadly any new statute is written.

It is also worth noting that several defendants stood trial accused of more overt acts, including specific instances of property destruction. A new law making it easier to charge bystanders as accessories wouldn’t change the uncomfortable fact that even cases against alleged principals generated not one guilty verdict from a trial. (Twenty-one people pleaded guilty before trial.)

Both juries in the J20 trials — as with those in all criminal cases — were told that every defendant is presumed innocent and that the presumption stands “throughout the trial, unless and until the government has proven that he or she is guilty beyond a reasonable doubt.” Does Newsham think this is too much to ask of prosecutors? Perhaps he has grown used to a plea system that reduces that standard in more than 90 percent of criminal cases to a cost-benefit analysis on the part of the defendant, leaving him or her to weigh fundamental rights against the disruptive power of a lengthy prosecution, regardless of guilt, innocence or strength of evidence.

This view seems to be shared by the lead prosecutor for the inauguration cases. In her closing remarks to a jury in December, Assistant U.S. Attorney Jennifer Kerkhoff made her feelings plain: “The defense has talked to you a little bit about reasonable doubt. You’re going to get an instruction from the judge. And you can tell it’s clearly written by a bunch of lawyers. It doesn’t mean a whole lot.

This, from the representative of a system that for centuries has held, in the words of Benjamin Franklin, “that it is better 100 guilty persons should escape than that one innocent person should suffer.” Instead, the gamelike mechanics that have grown up around that system encourage the rise of skilled players concerned mainly with keeping score.

When asked to comment on news that the remaining inauguration cases had been dismissed, Newsham noted that “in the American criminal justice system, sometimes the bad guys win.”

I couldn’t agree more.

They win every time an innocent defendant takes a guilty plea because he can’t afford to mount a defense. They win every time a black defendant faces a jury from which her peers have been stricken, based on their race. But when a thoughtful jury concludes in good faith that prosecutors have not proved their case? Surely that goes up on the scoreboard for the good guys.

Read more:

The Post’s View: D.C. police can learn Inauguration Day about managing protests

Gabe Rottman: Memo to D.C.: Protesters are not rioters

Erin Lemkey: I could face prison for protesting. A man who sexually abused a hotel worker got a $50 fine.