In late 2017, I represented a client who participated in a protest against the inauguration of Donald Trump in the District of Columbia on January 20, 2017. She was charged with conspiracy to engage in felony rioting, among other things, and faced the potential of decades in prison. The bizarre part is that she did nothing violent that day and the government knew it.
In the “J20” case, the DC U.S. Attorney’s Office adopted an incredibly broad theory of criminal liability that tried to hold peaceful protestors (like my client) criminally liable for the acts of a few people in the crowd who destroyed property (like breaking a Starbucks window and setting a limousine on fire). The theory was that if you showed up to the protest dressed all in black, you had joined a conspiracy. The indictment referred to the protestors as the “Black Bloc.” According to the indictment, one overt act in furtherance of the conspiracy was that “members of the conspiracy wore black or dark colored clothing . . . to conceal their identities in an effort to prevent law enforcement from being able to identify the individual perpetrators of violence or destruction.”
Another overt act was that they “cheered and celebrated the violence and destruction by members of the conspiracy and chanted ‘Fuck it up,’ ‘Fuck Capitalism,’ and “Whose streets? Our streets.”
(I am not making this up. This was really the theory of the case.)
The DC USAO charged over 230 people in the case. My client was in the first trial group of six defendants. It was a six-week trial. One of the key pieces of evidence for the government were videos taken by the right wing group Project Veritas of the protest organizing meetings. Although the defense moved to exclude them from evidence, the judge admitted them anyway. She, as so many judges do, believed the prosecutor when the prosecutor insisted that she had met all her Brady obligations with respect to the videos.
At the end of our trial, all six defendants were acquitted of every single charge.
The Revelation of Brady Violations
Our acquittals did not stop the USAO from continuing with this ridiculously overbroad prosecution. Things went seriously awry, for the government, however, as the next two trial groups pushed for Brady material related to the videos and did an excellent job making their case. Specifically, they uncovered evidence that the versions of the Project Veritas videos that had been shown to the jury in our case had been altered and that the USAO had not disclosed all the videos in DOJ’s possession to the defense so we could evaluate how the videos had been altered.
The judge in the second trial dismissed the charges based on this Brady violation. And the USAO then dismissed the charges against the remaining defendants. It was a massive black eye for that office—not only because it was, to use a legal term, a stupid prosecution, but because the result was the revelation of serious prosecutorial misconduct.
The lead prosecutor was Jennifer Kerkhoff. She now goes by Jennifer Kerkhoff Muyskens. (I am resisting calling it an “alias.”) After the J20 case, she apparently moved to Utah, where she is an AUSA.
Let me say that again: Even though a judge found that she had engaged in what he called a “serious violation” and even though the judge had determined that the prosecutor had misled the court and defense counsel about the undisclosed videos, Ms. Kerkhoff Muyskens remains a lawyer with the Department of Justice.
But the case is not over. Not surprisingly, someone (likely more than one person) reported Ms. Kerkhoff Muyskens to the bar. That ethics complaint turned into serious ethics charges against her.
The Ethics Complaint
It is worth reading the entire ethics 46-page complaint. It contains quite a bit of detail about the undisclosed videos and the statements that Ms. Kerkhoff Muyskens made to the court about them. For example, it quotes her as telling that Court that “she had provided defense counsel with ‘the full entirety of those videos from that day.’” (Paragraph 57) And it goes on to allege:
[Kerkhoff Muyskens] called [MPD Detective] Pemberton in rebuttal and elicited his testimony to “verify the authenticity as well as the accuracy and non-editing” of the Planning Meeting Video and confirm that the defendants “have exactly what we have.” Pemberton testified falsely that Project Veritas had produced only the four disclosed video segments of the Planning Meeting Video, and the only editing the government did was to combine the first three video segments into one exhibit to be played at trial. [Kerkhoff Muyskens] and Pemberton did not disclose how they had edited the original videos they received from Project Veritas, nor did they disclose that they had omitted from discovery many other videos Project Veritas videos of DisruptJ20’s planning meetings. (Paragraph 59)
I have written before urging judges not to let DOJ lawyers get away with Brady violations. And the District of Columbia has a somewhat unique rule that effectively makes it an ethics violation not to disclose Brady material. Rule 3.8 says:
The prosecutor in a criminal case shall not . . .
(e) Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, or in connection with sentencing, intentionally fail to disclose to the defense upon request any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
In the ethics complaint, Ms. Kerkhoff Muyskens is charged with violating six ethics rules:
a. Rule 3.3(a) (Candor to Tribunal), by knowingly making false statements, offering false evidence, and failing to correct material false statements to the court;
b. Rule 3.4(a), (c), & (d) (Fairness to Opposing Party and Counsel), by obstructing the defense’s access to evidence and altering or concealing evidence, or assisting another person to do so when she reasonably should have known that the evidence was or may have been subject to discovery; knowingly disobeying the court’s direct orders to produce information in the government’s possession without openly asserting that no valid obligation existed; and/or failing to make reasonably diligent efforts to comply with the defense’s discovery requests;
c. Rule 3.8(d) & (e) (Special Responsibilities of a Prosecutor), by intentionally avoiding pursuit of evidence and information because it may have damaged the prosecution’s case or aided the defense; and by intentionally failing to disclose to the defense, upon request and at a time when use by the defense was reasonably feasible, evidence and information that she knew or reasonably should have known tended to negate the guilt of the accused or mitigate the offense;
d. Rule 8.4(a), by knowingly assisting or inducing another to violate the Rules of Professional Conduct and/or doing so through the acts of another;
e. Rule 8.4(c) (Dishonesty, Misrepresentation, Deceit, and Fraud), by engaging in conduct that involved reckless or intentional dishonesty, misrepresentations, deceit, and fraud, which misled the grand jury, the defense, the court, the government, and disciplinary authorities about the evidence in the government’s possession and the government’s conduct; and
f. Rule 8.4(d) (Serious Interference with the Administration of Justice), by engaging in conduct that seriously interfered with the administration of justice.
Where Was OPR?
You may be wondering, where was the Office of Professional Conduct (OPR)? After all, the supposed purpose of OPR is to investigate prosecutors who do things like this. According to its website, “OPR’s primary mission is to ensure that Department attorneys perform their duties in accordance with the high professional standards expected of the nation’s principal law enforcement agency.”
Huh. Well. Ok. Not so much.
According to the ethics complaint, Ms. Kerkhoff Muyskens made misrepresentations to OPR during its investigation. So, there was at least an OPR investigation into her. As the ethics complaint alleges:
During the government’s investigation into [Kerkhoff Muyskens’] conduct, including the disciplinary investigation conducted by the Office of Professional Responsibility (OPR), and during Disciplinary Counsel’s investigation, [Kerkhoff Muyskens] repeated her false statements and material omissions about Pemberton’s and her responsibility for (a) omitting and editing the original January 8 Spokes Council videos to create the Planning Meeting Video; (b) withholding videos of Action Camp and Spokes Council meetings; (c) suppressing relevant information and evidence; (d) failing to produce complete Jencks material; and (e) making misrepresentations and omissions to the grand jury, the defense, and the court, and failing to correct known misrepresentations to the court. (Paragaph 136)
To be clear, OPR’s work is done behind the scenes. It does not make public any of its investigative reports and only brief summaries of findings without the prosecutor’s name. I have no issue with not disclosing the prosecutor’s name if OPR does not find wrongdoing but it’s kind of a weird policy for DOJ not to make public findings of wrongdoing against DOJ lawyers when DOJ literally exists to make public its allegations of wrongdoing against defendants.
For the most part, OPR is a “black box” (not to be confused with a Black Bloc, of course). So we will never know whether OPR found a violation and chose to do nothing about it, whether OPR simply slapped her on the wrist and decided she could stay an AUSA, or whether OPR ignored the whole situation entirely.
There are a few summaries on the OPR website that could be about Ms. Kerkhoff Muyskens. Maybe this one? We’ll never know.
Everyone <Gritting Teeth> Should be Treated Fairly, Even This Prosecutor
Of course, Ms. Kerkhoff Muyskens deserves the same presumption of innocence as anyone else in the disciplinary system. It will be up to Disciplinary Counsel in DC to prove these charges. I hope that Disciplinary Counsel treats her more fairly than she treated my client in the J20 cases. I hop she gets to see the evidence gathered against her in an unaltered format. I hope Disciplinary Counsel doesn’t keep evidence from her that she could use to defend herself.
One final note: This ethics complaint made its way around the criminal defense community quite speedily. There were a lot of us involved in this case in some way. No one seemed to be surprised, or unhappy, about this development. For all my criticisms of DOJ, the vast, vast, vast majority of prosecutors are diligent and honest. I have found the DC USAO to generally have a fair approach to criminal discovery. Perhaps that’s what makes this whole saga all the more disappointing.