On January 20, 2017, thousands of concerned citizens took to the streets of the District of Columbia to protest the incoming presidential administration. More than 200 people were arrested after a smaller number of people engaged in property destruction in the vicinity of Franklin Square. Among those arrested were journalists, legal observers, and others who did not participate in the destruction of property. However, the U.S. government prosecuted over 200 demonstrators for being members of a criminal conspiracy to riot.
In October 2017, we filed an amicus brief in support of several motions filed by the first J20 Defendants on trial. Our motion described the important First Amendment implications of this prosecution, and described the history and application of a doctrine called strictissimi juris, which applies in cases where the government is prosecuting individuals based on their presence or membership in a larger group engaged in both protected First Amendment activity as well as unlawful conduct. In essence, this doctrine requires courts to apply their existing evidentiary and procedural rules in the strictest manner, in order to ensure that individuals who only intended to lawfully exercise their First Amendment rights are not wrongfully convicted based on guilt by association. Doing so ensures that the line between unlawful conduct and protected First Amendment expression and association is upheld, and that individuals are not chilled from exercising their rights for fear of criminal prosecution based on the actions of a few.
In December 2017, the first 6 defendants to go to trial were acquitted on all charges. In January 2018, the government dropped the charges against more than two-thirds of the remaining criminal defendants (more than 120 people). In spring 2018, the second trial resulted in one defendant’s being acquitted outright and several hung juries. Meanwhile, the court found that the prosecutor had engaged in misconduct by withholding from defendants video evidence that it was constitutionally required to turn over. As a sanction, the court ordered several additional defendants’ cases dismissed. The prosecutor then voluntarily dismissed charges against another 7 defendants at the end of May 2018. Finally, in July 2018, the government voluntarily dismissed charges against the remaining defendants. Ultimately, over the course of two trials and more than a year of litigation against approximately 200 people, the government obtained no jury convictions, lost several defendants as a result of sanctions for misconduct, and voluntarily dismissed its cases against more than 170 defendants.