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Commentary :: Organizing : Police and Prisons
Jennifer Kerkhoff Will Never be a Federal Judge
18 Jun 2018
The final admission of failure in the J20 case has made official what has been clear for some time - Jennifer Kerkhoff is done. As the public face of the prosecution, she's going to take the hit for all the gaffes, misconduct, sanctions, dropped charges, and acquittals, however much or little of that was urged on her by her superiors. The best guess right now is she won't be disbarred, and will keep her job long enough that it doesn't look like she's being fired for screwing up this case. But she can wave goodbye to her chance at a federal judgeship or a partnership at a fancy DC law firm. It couldn't happen to a more deserving person.
Kerkhoff is reportedly loathed even by her colleagues, and her handling of the J20 prosecution has been extraordinarily vindictive. This is a prosecutor who actually told a jury "reasonable doubt doesn't mean a whole lot". More substantially, she concealed 69 videos worth of exculpatory evidence from defense attorneys, and lied to a judge about it. Which, in a roundabout way, brings me to my next point.

Step back from the minutiae of day to day courtroom proceedings and look at the whole progression of the J20 case, and it takes on the inexorability of a Greek tragedy. In hindsight at least, the DC cops and US Attorneys have been stuck between a rock and a hard place since the black bloc stepped out of Logan Circle on the morning of January 20th, 2017. The rock is what we saw in the streets of DC that day - a 500-strong black bloc, masked up and pissed off, smashing every capitalist symbol in its path. Leaders of the DC Metro PD Special Operations Division, some of the most experienced riot cops in the country, knew what they were facing. They had seen it before, albeit not in a while. Dispersing the bloc wasn't going to work - smaller blocs would roam the city in multiple directions, doing more damage separately than if they were still condensed in one mass. They'd also be harder to track down. Even kettling the bloc and releasing protesters in a slow trickle, long an SOD staple tactic, wasn't a great option with such a large and militant march. They'd only reassemble in smaller groups and resume their rampage. Tactically, in the immediate situation the cops faced, kettling and mass arrests were the only things that made sense. They got out of it with only one torched limo, a few shattered windows, and a lightly dented wannabe trust fund fuhrer, seemingly a cheap price to pay for staying on Trump's good side.

But don't forget the hard place. The hard place has a history. On April 15, 2000, DC police kettled and arrested almost 700 anti-World Bank protesters, holding them on buses in plastic handcuffs with no water or bathrooms for eight hours. Almost a decade later the DC government was forced to cough up $13.7 million to settle the resulting class action suit. In the same month they had to pay another $8.25 million to almost 400 protesters who had been, you guessed it, kettled and arrested, this time in Pershing Park in September 2002. It all added up to $18,000 per kettlee, a record amount in protest class actions. To prevent a recurrence, Metro PD policy and DC law were amended to prohibit arresting protesters en masse, meaning that doing so could lead to even more damaging lawsuits.

This then was the choice that then-interim Metro PD chief Peter Newsham faced, and made, when he ordered the SOD to kettle and arrest the black bloc on J20. To either embarrass his department and his bosses under the gaze of every cop's favorite president, on Inauguration Day no less, by letting the bloc run wild, or open the District government up to a flood of bad publicity and expensive lawsuits. He went with door number two, and in doing so created a couple of problems.

One of them is obvious, of course. In order to fend off even bigger lawsuits than those DC faced in the global justice era, juries would have to be convinced that the actions of the black bloc justified the repressive tactics used against them. This was the imperative driving the major felony charges filed against the J20 defendants. Same goes for the novel legal theory of guilt-by-association-and-wearing-the-same-color-clothes advanced by Kerkhoff during the trials.

But before a jury was ever chosen, state functionaries would have to be convinced as well. This is more of a challenge than one might think. The DC Superior Court is a bureaucracy, and bureaucracies don't react well to the unexpected. Their usual routine of business looks nothing like the J20 circus. Serious felonies are comparatively rare, serious publicity almost unheard of, and nearly all cases are settled before trial. 200-plus must-win multi-count felony cases dropped into this cozy bubble must have caused severe consternation, especially since most of the defendants showed every intention of going all the way to trial. Many prosecutors would have responded by making examples of the handful of defendants caught on video breaking things, pleading everyone else down to summary offenses or dropping their charges entirely, and if necessary moving on to the private sector before the lawsuits hit. This was a fate the District government wanted to avoid at all costs.

You might have noticed there are a lot of assholes involved in the J20 prosecution. Not common or garden variety assholes either, but seriously committed douchenozzles even by law enforcement standards. It's not just Kerkhoff. The first trial judge, Lynn Leibovitz, is known to be one of the most prosecution-friendly judges on the DC Superior Court, and her conduct during her time on the J20 cases only cemented this reputation. Detective Greggory Pemberton, who compiled and presented the police video evidence for the prosecution, is an alt-right sympathizer who follows 4chan's /pol board, a hive of alt-right organizing and racist memes. Metro PD commander Keith Deville, in charge of the protest response forces at J20, has a history of homophobic jokes and antisemitism. Officer Michael Howden, a motorcycle cop called to testify at the first J20 trial, was recorded bragging about "herding" black residents of the Barry Farm neighborhood in DC. Another police witness at the second trial, William Chatman, spent several hours after his testimony, presumably on his own time, hanging around the courthouse wearing a t-shirt extolling police brutality in a crude attempt to influence the jury. Chatman also persisted in referring to the defendants as "rioters" on the stand, even after being told not to by the judge.

We can't know for sure how intentional all this was. Maybe the worst dicks in DC law enforcement just happened to end up on the J20 case by pure dumb luck. But maybe they were chosen because they're dicks. Maybe dicks were the only people who could be counted on to say what they had to say, and do what they had to do, to keep the J20 prosecution staggering along under the weight of its own stupidity for the last 18 months. Deville for example, insisted on the stand that that the concussion grenades and floods of pepper spray aimed at trapped and unresisting protesters "showed restraint". Chatman even testified that it “seemed as if there were people in charge” of the black bloc. You couldn't make this stuff up...

Imagine how fast the cases would have fallen apart under a prosecutor who took the normal course of not bringing charges for which there was insufficient evidence for a conviction. A prosecutor who, lacking any video record of protest planning meetings made by actual cops, and having to rely on footage from a sketchy right wing propaganda mill, might have decided that forgoing conspiracy charges was the better part of valor. Or perhaps a judge, anxious to reclaim her courtroom for what she might consider actual crimes, who declined to grant multiple extensions and continuances for the prosecution to get their shit together. Relying on dicks might have been the only way to overcome the laziness and apathy inherent in the DC court bureaucracy.

There is some reason to believe that DC officials anticipated this problem even before the inauguration. Speaking of assholes, why would DC Mayor Muriel Bowser have appointed an interim chief with a history of alcoholism, domestic abuse, and mishandling sexual assault cases - and the same guy who helped get DC into this mess by ordering the 2002 mass arrest in Pershing Park? Just maybe because she knew the inauguration was likely to be a shit show whoever won the election and wanted someone she could count on to keep order no matter what.

But whether spawned of design, coincidence, or some combination of both, willingness is not the same thing as ability. The lawsuits Kerkhoff hoped to avoid are in progress, with more on the way and not a single conviction in court to stave them off. Even if she had managed to squeeze out a few convictions here and there, her theory of the case was done in by Judge Robert Morin's surgically targeted decision to drop all conspiracy charges and prohibit a Pinkerton assertion, in sanction for the withheld video evidence. Absent that specter of a massive conspiracy to annihilate DC entered into by everyone who participated in the anticapitalist march, there is zero legal justification for so egregiously violating the consent decrees from previous lawsuits.

So most of the J20 arrestees are in line for a big payday sometime in the next decade, and no doubt even more legal barricades will be erected against future mass arrests of protesters in DC. This is good news for the folks who have had to put their lives on hold for the past year and a half, but it's hardly a fate worse than death for the District government. The few tens of millions they will likely fork over to protesters are a drop in a bucket compared to DC's total budget, and given the glacial pace of civil proceedings they won't have to cut a check for years. New restrictions on protest policing can be ignored as easily as the old ones, for a similarly modest expense. Maybe that hard place is a little squishier than it looks, but Kerkhoff's failure goes beyond the merely financial. By losing so completely, so publicly, and above all so pointlessly maliciously she has damaged the legitimacy of DC law enforcement (which remember is federal law enforcement) beyond the ability of money to repair it. And between ICE raids breaking up families, the DEA's failure to combat the opioid epidemic, and even Trump's ongoing feud with the FBI, federal law enforcement is already rapidly losing public support. To anarchists this can only be a good thing.

With the criminal cases behind us, it's time to ask what we can learn from J20. For starters, solidarity works, collective legal defense works. In fact they are essential, but we knew that already. Black bloc tactics work, but we knew that too. On the minus side, stringent vouching protocols have been known to work also, but to all outside appearances they were not employed by the J20 organizers. Out of the 70 videos taken at organizing meetings by Project Veritas, 69 had to be concealed from the defense in their entirety, and even the seventieth had to be surreptitiously edited to remove the exculpatory part. That's an impressive display of tongue holding that most groups couldn't have pulled off in planning a vegan potluck fund raiser, let alone an unpermitted anticapitalist march on Trump's inauguration. But it would still have been a lot better if Veritas' bootlickers had never been allowed in the room.

Beyond the immediately obvious, J20 reinforces once again a point David Graeber made in The Shock of Victory - that cops will do nearly anything to win in the short term. In this case they only managed to pull it off by kicking the can down the road.

A flaming can filled with dog shit.

That Jennifer Kerkhoff spent a year and a half jumping up and down on.

Nonetheless it's a good idea to keep Graeber's principle in mind before blithely assuming cops will follow their own laws. We should also not expect the DC cops, or any cops, to be quite this clueless in the future. Granted, it's hard for them to train on tactics they can't admit to, but they would only have had to screw up a little less for J20 to have been tragic for us instead of them. An undercover cop that remembered to charge the batteries in his hidden camera, a mass arrest procedure that managed to keep track of which backpack went with which protester - these factors could have made all the difference in front of judges and juries unsympathetic to anarchism and militant protest, and looking for any excuse to side with the prosecution. The hung juries in the cases of the three defendants accused of actual property damage, despite the poor quality of the video purportedly showing them committing it, give us a disquieting glimpse of what might have been.

We should also remember that the state's chief strategy is, as always, intimidation. For all the bullets the J20 defendants dodged in court, they still spent a tremendous amount of time and money fighting their cases. Doubtless this is part of the state's plan. The District government is surely happy to sacrifice Jennifer Kerkhoff's career to make sure no one dares to disrupt Mike Pence's inauguration in two and a half years. Let's not let them succeed at that either. Let's make sure Kerkhoff fails as thoroughly at intimidation as she has at prosecution. See y'all in 2021...

This work is in the public domain