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The Jury In The Inauguration Day Rioting Trial Now Has To Decide What To Do About The First Amendment

Before jurors began deliberating, the judge explained that the First Amendment was not a defense if jurors found the government proved the defendants committed crimes.

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As jurors deliberate in the first trial to come out of mass arrests in Washington, DC, during President Donald Trump’s inauguration, a key question will be how much, if at all, the First Amendment factors into their thinking.

Prosecutors contend the case isn’t about protected free speech, even if the anti-Trump demonstration at issue on Jan. 20, 2017, involved people marching and chanting and carrying signs. The defendants came prepared for a riot and shielded people who caused more than $100,000 in property damage, Assistant US Attorney Rizwan Qureshi told the jury last week during closing arguments. They were now “hiding behind the First Amendment,” he said.

“The First Amendment is not a defense to violence,” Qureshi said. “By their conduct, they intend to hijack the First Amendment.”

The defense, on the other hand, is arguing that in the absence of evidence that the six people on trial were the demonstrators who broke windows or intended to support the violence that day, the case is very much about the Constitution’s protections for speech and assembly. The Justice Department was trying to criminalize people for exercising their First Amendment rights, Steven McCool, a lawyer for one of the six defendants on trial, told jurors in his closing arguments.

“The First Amendment is not simply about speech. It’s about our freedom to assemble with one another. It’s about our freedom to come together and share our opinions. It’s about our freedom to speak out against Donald Trump and his message of hate,” McCool said.

Following closing arguments and jury instructions on Friday, the jury began deliberating briefly in the afternoon, and was set to resume Monday.

Right up until the end of arguments, lawyers for the government and the defense sparred over what the judge should say to the jurors about how they could think about the First Amendment’s protections for speech and assembly in the context of the case. In the end, DC Superior Court Judge Lynn Leibovitz gave an instruction to the jury noting that it was not a crime to be present or sympathize with the views of people who become violent during a demonstration.

However, if the jury found that the government proved all the elements of the charged crimes, “it is not a defense that the Defendant also was expressing his or her views at the time,” Leibovitz said, according to a transcript.

The jurors are going into deliberations with a slightly shorter list of charges than they started with — on Dec. 13, Leibovitz granted a motion to acquit the defendants of one of the felony charges, for inciting a riot.

Any defense celebration was limited, though — the judge denied defendants’ bid to get the rest of the case tossed out. The jury will deliberate on five felony counts of property destruction, along with two misdemeanor counts of engaging in a riot and conspiracy to riot. The felony charges carry maximum penalties of 10 years in jail and a $25,000 fine. The misdemeanors have maximum penalties of 180 days in jail and a $1,000 fine.

With more trials scheduled for December and throughout 2018 for the nearly 200 defendants still facing charges, this first trial is serving as a test of arguments and evidence that the government and other defense lawyers are likely to pursue going forward.

The jury heard conflicting interpretations from the lawyers on both sides about whether and to what extent being present as violence took place constituted criminal activity on its own. Qureshi compared the situation to a bank robbery, where different people played different roles, but were all ultimately accountable. There’s the muscle, the lookout, and the getaway driver, he said. The crowd of people dressed in black on Jan. 20, referred to as a “black bloc,” was the getaway driver, he said, reabsorbing people who smashed windows to help them move away and evade arrest.

Each defense lawyer offered closing arguments tailored to their client, but many of the themes were the same: that the First Amendment meant that people didn’t have to leave a protest just because people around them were violent, that wearing all black or changing clothes later on wasn’t proof of criminal intent, and that evidence that someone was at the protest wasn’t the same as proof the person knew that people there would be violent.

Defense attorney Carrie Weletz said that even if the government had photos of her client, Jennifer Armento, at the demonstration — she didn’t concede that the person photographed was, in fact, Armento — there wasn’t evidence that Armento knew about the property destruction going on, let alone that she cheered it on or in any way supported it.

Armento didn’t come to Washington to cause violence, Weletz said — she came to protest. Continuing Qureshi’s bank robbery analogy, Weletz said that her client was “the fall guy” for the actual criminals that day.

Although the six defendants are being tried together, the government will have to convince the jury that each person, on his or her own, is guilty. One defendant, Alexei Wood, says that he was at the protest that day as an independent journalist, and press freedom advocates have been spotlighting his case as an example of government overreach against the media. Another defendant, Aaron Cantu, who works as a journalist, is also facing charges and is scheduled to go to trial next year.

The jury watched a livestream video of the protest that Wood recorded and narrated on Jan. 20. In some parts, Wood appears to be cheering and making comments that suggest his sympathies were with the protesters. Prosecutors noted that Wood was carrying what looked like a press badge with his photo on it, but featured a different name and the name of a media group that the lead detective testified he was unable to find, “Glass Bead Media Collective.”

In other sections of the video Wood identifies himself as media, and he spends most of the video describing what he is seeing to viewers. In an earlier interview with HuffPost, Wood said that he understood some people might take issue with his professionalism, but he maintained that he was there to document the protest and did nothing wrong.

Another defendant on trial in the first group, Brittne Lawson, argues she was at the protest as a medic. Her lawyer, Sara Kropf, noted in her closing argument that Lawson wasn’t trying to hide her identity in the crowd — she was wearing a white helmet with a red cross on it, with her face uncovered.

Prosecutors have argued that Lawson was part of the riot conspiracy, and that her role was to aid individuals who did cause property damage. Kropf said there was no evidence of Lawson intending to specifically help rioters or selectively providing aid only to people who broke windows.

“I’m not sure how we got to the place where a nurse providing first aid is a crime,” Kropf said.

Leibovitz tried to limit how much the defense made the case about the broader issue of political protest in the age of Trump. At one point during closing arguments, Kropf began to argue that if the defendants were prosecuted, it could chill future protests from taking place. Assistant US Attorney Jennifer Kerkhoff objected, and Leibovitz sustained it and called the lawyers up to the bench for a conversation out of the jury’s earshot. When they resumed, Leibovitz briefly addressed the jury.

“It is not the purpose of your decision-making in this case to send a message to the community or to others outside this case,” she said, according to the transcript. “It is your purpose to decide whether the government has proved guilt beyond a reasonable doubt.”

Zoe Tillman is a legal reporter with BuzzFeed News and is based in Washington, DC.

Contact Zoe Tillman at zoe.tillman@buzzfeed.com.

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