A 'sea of black masks': Prosecutors open felony trial of inauguration protesters

WASHINGTON ― They may not have broken any windows, set any fires, tossed any rocks or thrown any bricks. But a United States prosecutor here Monday told a jury that six defendants facing felony charges in connection with the protests and mayhem surrounding President Donald Trump’s inauguration in January deserve to be found guilty of several felony crimes that would expose them to potential sentences of decades in prison.

Six defendants ― Jennifer Armento, Alexei Wood, Oliver Harris, Michelle Macchio, Brittne Lawson and Christina Simmons ― were among the 234 people arrested en masse during protests on Jan. 20, commonly referred to as the J20 protests. They’re the first group to go to trial, and their case could determine whether prosecutors continue pursuing felony rioting charges against the nearly 200 people who have trials spread out over the course of the next year.

In a dramatic opening statement, Assistant U.S. Attorney Jennifer Kerkhoff repeatedly referred to a “sea of black masks” that roamed the city causing chaos, violence and destruction. Authorities have said there was more than $100,000 in property damage that day. The prosecution’s first witness was the manager of a downtown Au Bon Pain cafe that had its windows broken.

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Kerkhoff, in her opening statement, told the stories of individuals who were working downtown that day and were affected by the unrest: a Starbucks worker who had to “dive for cover” as a window was smashed; a shop owner who was devastated to find her own window broken; a limousine driver whose vehicle was set on fire after the defendants had been arrested; and police officers who felt “helpless” as the large group overran the downtown area. 

Kerkhoff told the jurors that the six defendants “made a choice” to take part in a violent and destructive riot, arguing they “had countless opportunities to walk away, to say this was too much, this isn’t what I signed up for, this isn’t what I’m going to do, this isn’t how I’m going to express my opinion.”

Instead, she said, the defendants chose to stay, and “helped this path of destruction through the city,” moving together with the group as individual members popped out, caused destruction and were “reabsorbed” into the massive group.

“Each of them made a choice, and each of them played a role,” Kerkhoff said. “You don’t personally have to be the one who breaks the window to be guilty of rioting.”

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guests fill hte West Front of the US Caaptol in Washington, DC, on January 20, 2017, before the swearing-in ceremony of US President-elect Donald Trump. / AFP / Mark RALSTON (Photo credit should read MARK RALSTON/AFP/Getty Images)
U.S. First Lady Michelle Obama, left, wipes the shoulder of U.S. President Barack Obama while standing outside of the White House ahead of the 58th presidential inauguration in Washington, D.C., U.S., on Friday, Jan. 20, 2017. Trump is the first president since the dawn of national polling in the late 1930s to enter office with the approval of fewer than half of Americans -- in his case only 40 percent. Photographer: TKTK/Pool via Bloomberg
WASHINGTON, DC - JANUARY 20: (L-R) Tiffany Trump, Donald Trump, Jr., Ivanka Trump, Vanessa Trump and Jared Kushner arrive on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - JANUARY 20: The presidential motorcade drives down Pennsylvania Ave towards the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Joe Raedle/Getty Images)
WASHINGTON, DC - JANUARY 20: Former Democratic presidential nominee Hillary Clinton arrives on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Chip Somodevilla/Getty Images)
WASHINGTON, DC - JANUARY 20: Former President George W. Bush and Laura Bush wave as they arrive on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - JANUARY 20: Former President Jimmy Carter and wife Rosalynn Carter arrive on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Joe Raedle/Getty Images)
US Chief Justice John Roberts (C-front) arrives with US justice William Rehnquist (L) on the platform of the US Capitol in Washington, DC, on January 20, 2017, before the swearing-in ceremony of US President-elect Donald Trump. / AFP / Mandel NGAN (Photo credit should read MANDEL NGAN/AFP/Getty Images)
WASHINGTON, DC - JANUARY 20: Former U.S. Preident George W. Bush and former first landy Laura Bush arrive at the swearing in ceremony at the United States Capitol January 20, 2017 in Washington, DC. Donald J. Trump will become the 45th President of the United States today. (Photo by Doug Mills - Pool/Getty Images)
US President Barack Obama and Vice President Joe Biden arrive for the Presidential Inauguration of Donald Trump at the US Capitol in Washington, DC, on January 20, 2017. / AFP / POOL / SAUL LOEB (Photo credit should read SAUL LOEB/AFP/Getty Images)
WASHINGTON, DC - JANUARY 20: President Elect Donald Trump arrives on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Alex Wong/Getty Images)
WASHINGTON, DC - JANUARY 20: President Elect Donald Trump arrives on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Scott Olson/Getty Images)
US President elect Donald Trump (R) and Vice President elect Mike Pence seat during the swearing-in ceremony on in front of the Capitol in Washington on January 20, 2017. / AFP / Timothy A. CLARY (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)
WASHINGTON, DC - JANUARY 20: U.S. Vice President Mike Pence takes the oath of office from Supreme Court Justice Clarence Thomas as his wife Karen Pence looks on, on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Drew Angerer/Getty Images)
WASHINGTON, DC - JANUARY 20: President Elect Donald Trump shakes hands with Vice President Mike Pence on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Alex Wong/Getty Images)
US President elect Donald Trump (C) salutes his daughter Ivanka and other family members during the swearing-in ceremony on in front of the Capitol in Washington on January 20, 2017. / AFP / Timothy A. CLARY (Photo credit should read TIMOTHY A. CLARY/AFP/Getty Images)
US President-elect Donald Trump is sworn in as President on January 20, 2017 at the US Capitol in Washington, DC. / AFP / Mark RALSTON (Photo credit should read MARK RALSTON/AFP/Getty Images)
WASHINGTON, DC - JANUARY 20: U.S. President Donald Trump delivers his inaugural address on the West Front of the U.S. Capitol on January 20, 2017 in Washington, DC. In today's inauguration ceremony Donald J. Trump becomes the 45th president of the United States. (Photo by Drew Angerer/Getty Images)
Attendees listen as U.S. President Donald Trump speaks during the 58th presidential inauguration in Washington, D.C., U.S., on Friday, Jan. 20, 2017. Donald Trump will become the 45th president of the United States today, in a celebration of American unity for a country that is anything but unified. Photographer: Daniel Acker/Bloomberg via Getty Images
Attendees stand during the 58th presidential inauguration in Washington, D.C., U.S., on Friday, Jan. 20, 2017. Donald Trump will become the 45th president of the United States today, in a celebration of American unity for a country that is anything but unified. Photographer: Daniel Acker/Bloomberg via Getty Images
US President Donald Trump and First Lady Melania Trump(L) wait with former President Barack Obama(2nd-R) and Michelle obama before their departure from the US Capitol after Trump's inauguration ceremonies at the US Capitol in Washington, DC, on January 20, 2017. / AFP / Robyn BECK (Photo credit should read ROBYN BECK/AFP/Getty Images)
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Kerkhoff claimed that even as the defendants saw the destruction members of the group were causing, they stayed with the group until they were rounded up by police. “Each of these defendants still said ‘I’m in.’ ‘Let’s keep going, I’m in,’” she said. Alleging that one of the defendants was masked, she added: “That mask comes off today.”

Several attorneys for the six defendants, on the other hand, told the jury there was not evidence that their clients participated in any destruction. But they were indiscriminately treated by police, with defendants’ attorneys alleging that the D.C. Metropolitan Police Department ― which is facing a lawsuit for its tactics that day ― violated its own policies by “kettling” a large group of people. It’s much easier to treat everyone the same, call the protest a riot, and lock everyone up, rather than comply with the First Amendment, one lawyer argued.

Steven McCool, who was representing Harris, suggested the charges were being pursued because groups like the American Civil Liberties Union would sue the police department, and the government would lose. “They want to convict everyone they trap,” McCool said.

Defense attorneys prepared jurors to see lots of videos showing the destruction from that day, but said it was important for them to remember that the government wouldn’t be able to prove their clients took part in it.

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Former Vice President Joe Biden

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Sen. Bernie Sanders (I-Vt.)

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Sen. Elizabeth Warren (D-Mass.)

(Photo by Craig F. Walker/The Boston Globe via Getty Images)

Sen. Kamala Davis (D-Calif.)

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Sen. Cory Booker (D-N.J.)

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Sen. Kirsten Gillibrand (D-N.Y.)

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Colorado Gov. John Hickenlooper

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New York Gov. Andrew Cuomo

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Former Maryland Gov. Martin O'Malley

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Former Housing and Urban Development Secretary Julian Castro

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Sen. Tim Kaine (D-Va.)

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Sen. Al Franken (D-Minn.)

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Former Massachusetts Gov. Deval Patrick

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Dallas Mavericks owner Mark Cuban

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Environmental activist Tom Steyer

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Democratic National Committee Chairman Tom Perez

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Minnesota Gov. Mark Dayton 

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California Lt. Gov. Gavin Newsom

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Facebook COO Sheryl Sandberg

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Former Vermont Gov. Howard Dean

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Tammy Jacques, representing Christina Simmons, said that her client was “arrested for something she did not do,” and noted this was the first presidential election Simmons was old enough to vote in. “She was in the District of Columbia doing what she had the right to do. The right to protest,” Jacques said.

Brett Cohen was in court representing Alexei Wood, whose case has drawn particular attention because the 37-year-old videographer and photographer said he was there in his capacity as a photojournalist. 

Kerkhoff said in her opening that anyone can be a photographer in this day and age because of technology. She said that Wood did not hide his face, and darkly warned that Wood’s Facebook livestream, a key piece of government evidence in the case, was available on the internet for “anyone that wanted to watch.” Kerkhoff said jurors would see Wood “cheering when the destruction happens” and “celebrating” when someone was struck in the groin with a rock.

Cohen, Wood’s attorney, painted a different picture, saying his case was “a little bit different” than the others because it “involves the right to a free press.” Wood is a professional photographer, mostly working on weddings and commercial photography, Cohen said. But he developed an interest in photojournalism in recent years. “He’s independent, he’s up-and-coming, and he’s building a resume,” Cohen said. So, he argued, it made sense for Wood to attend the inauguration, a perfect opportunity to advance his work.

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Oklahoma

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West Virginia

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Massachusetts

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Vermont

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Rhode Island

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Connecticut

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Delaware

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Maryland

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Virginia

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Illinois

Approval rating: Below 40%

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Minnesota

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Colorado

Approval rating: Below 40%

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New Mexico

Approval rating: Below 40%

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Washington

Approval rating: Below 40%

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Oregon

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California

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Hawaii

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Cohen said that Wood may have said things on the livestream that are “disagreeable,” but he didn’t do anything illegal. Cohen also said Wood’s comments, which appeared to be supportive of the property destruction, were directed at the audience watching the livestream, not the people out on the street. 

The government, Cohen said, would have to prove that Wood’s statements or reactions were made with the intent of furthering the riot and the destruction of property. Prosecutors have dropped charges against seven of the nine journalists arrested in the kettle that day.

Kerkhoff said that people are allowed to have emotions and feel what they want, but that this case wasn’t about that. It was, she said, about the defendants’ choice to stick with a group that caused mayhem in downtown D.C.

“That is why we’re here. Violence and destruction was a choice,” Kerkhoff said. “And they made choices that day to participate in it.”

Ryan Reilly is HuffPost’s senior justice reporter, covering criminal justice, federal law enforcement and legal affairs. Have a tip? Reach him at ryan.reilly@huffpost.com or on Signal at 202-527-9261. 

  • This article originally appeared on HuffPost.
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