Brady Violations and Why They Matter to the J20 Case

By Defend J20 Resistance

One of the central hurdles in the J20 case has been the staggering number of videos collected as evidence by the prosecution. In a case that at one point had 230 defendants, hundreds of hours (and hundreds of gigabytes) of video footage were entered into discovery by the Attorney’s Office. A situation like a microcosm of the NSA’s PRISM program was at hand, with data coming from officer body-cams, aerial footage, store video, video from third party news and semi-professional individuals, photos and text messages from defendants phones, and data from a website called DisruptJ20. Defendant council, particularly those court-appointed, struggled to keep up with the many portals and services to access this information. Access to discovery material has had many practical barriers, even for proactive defendants who wish to devote weeks to going through the material.

The subject of the Supreme Court case Brady vs. Maryland has been a reoccurring theme at trial readiness hearings. Defense attorneys have debated whether material from electronic devices other than their client’s should be protected or considered as potentially exculpatory. AUSA Kerkhoff has been questioned thoroughly on Brady material for over a year, and is well aware of its complexity in this case. Judges have held her accountable when defense attorneys were not given access to discovery or had technical difficulties accessing material. At one point the prosecution issued a gag rule on discovery, out of frustration that an officer’s body camera footage was revealed in an article that did not portray the case in a favorable light.

The time spent discussing Brady and the mountain of evidence in this case makes the motion about Brady violations from the June 4th trial group particularly shocking. Furthermore, it concerns video footage taken by self-proclaimed news organization Project Veritas. Run on the personal whims of founder James O’Keefe, this group has made many enemies in journalism, most notably when they attempted a sting operation on the Washington Post. O’Keefe is motivated against those he perceives as holding anti-establishment or problematically liberal political views. He “infiltrated” meetings organizing protests for Inauguration Day for several weeks with an undercover crew. Several cameramen got one-on-one interviews with people they met, some of who became defendants in this case.

The videos that Project Veritas produced - in a hackneyed Law and Order style that included a “Murder Board” of photos and string – were heavily edited and heavily editorialized. O’Keefe proudly delivered these videos to the DC police and FBI, and filmed himself doing so. The way they have now resurfaced in this case is how they relate to Brady, and how the prosecutors are being accused of “the suppression…of evidence favorable to [the] accused” (Brady v. Maryland, 1963). The Project Veritas footage provided to defense counsel was not complete, as the May 22nd motion states, and cut out specific moments where the camera crew found the organizers innocuous. The trial group that submitted the Motion to Sanction includes those accused of organizing the protest, including several added to the case after the mass-arrest. The Brady violation, however, applies to all defendants, since the conspiracy charge has lumped the charges together and rendered all culpable. For the current trial of four, the evidence in question here has already been presented to a jury and discussed by a detective working with the prosecution.

A number of legal scholars have taken issue with the problematic nature of Brady, which stems from the faith that prosecutors will present both inculpatory and exculpatory evidence to the defense. Apart from the documented cases of prosecutors willfully withholding or hiding information, there is also a logical disconnect between prosecutors incentivized to win cases and a reasoned evaluation of evidence that incorporates theories of innocence. The judge can do little more than demand that a prosecutor turn over all evidence in open court. To make matters worse, there are few repercussions if the government does not follow this instruction. In a 2011 Supreme Court ruling, Clarence Thomas wrote that a DA’s Office could not be held liable for not training prosecutors on the constitutional rights of defendants. There are very few avenues to challenge a prosecutor on their conduct, which undermines the protections of the Brady ruling. Subsequent rulings have also narrowed its scope, requiring “material” evidence when seeking retrials or determining a mistrial.

A Brady violation is a serious offense and has a very particular stain on a process designed to uncover and present information. Prosecutors have a great deal of control over the trial process, from the grand jury testimony to the presentation of evidence. They are able to extract plea deals from defendants before the issue of Brady even comes into play, and capitalize off the defendant’s inability to know all of the potential evidence. Many public defenders attest that Brady violations occur regularly, and studies have shown that that about 1/5 of overturned cases have included undisclosed evidence. In the instance of the J20 case, the decision to bring multiple felony charges including conspiracy suggests an ideological motive on the behalf of the lead detective and head prosecutor. The desire for a win in this case goes beyond the normal pressure of the Attorney’s Office. All of these factors add to the motivation, conscious or not, of misrepresenting video evidence. It also reveals a detective informed by a specific bias toward protest, which is not tempered at all by the Attorney’s Office. The judges, and ultimately, the jury, have to be able to see this for what it is and recognize the Brady violations as a symptom of a larger problem.