Prosecutor in Trump protest cases should be suspended for her 'narrow view' of disclosure duties, panel says
Updated: The lead prosecutor handling cases against protesters during the January 2017 inauguration of President Donald Trump should be suspended for three months for “simply untenable” discovery conduct, according to a hearing committee of the District of Columbia Court of Appeals Board on Professional Responsibility.
Former Assistant U.S. Attorney Jennifer Kerkhoff Muyskens should be suspended from practice for failing to disclose exculpatory undercover videos of protest planning recorded by the conservative activist group Project Veritas, the committee concluded in an Oct. 6 report and recommendation.
Concluding that Muyskens “routinely took a narrow view of her discovery obligations,” the hearing committee recommended a “first-of-its-kind” unstayed suspension for a prosecutor in the District of Columbia.
During the inauguration protests, some participants smashed car and store windows, vandalized a bakery and gas station, and dumped trash cans and newspaper stands into the street.
The government’s theory was that more than 200 defendants had joined a conspiracy to riot, even if many participants were peaceful. The first six defendants tried countered that they joined a peaceful protest and did not plan to riot.
As evidence of planning for violent acts, Muyskens relied on an edited undercover video recorded at a Jan. 8 meeting that was disclosed to the defense. She did not, however, disclose other “Action Camp” videos from Jan. 14 and 15 that showed instruction on de-escalation techniques and discussion of peacekeeping.
The hearing committee concluded that the de-escalation instruction in the undisclosed videos was exculpatory evidence that should have been provided to defense. The instruction contrasted with the disclosed video in which participants discussed property destruction, the hearing committee said.
Muyskens also should have disclosed that the videos were recorded by Project Veritas, according to a majority of the hearing committee. But the panel found that her editing on the disclosed tape did not violate ethics rules.
Besides taking a narrow view of her discovery duties, Muyskens “regularly interpreted the court’s discovery admonitions in the narrowest way possible, often straining credulity in doing so,” the hearing committee said. “More to the point, she persisted in her erroneous interpretation of her discovery obligations in the face of explicit court orders to the contrary and, when her conduct was finally discovered, continued to dishonestly obscure the nature and extent of what she had done.”
The committee cited mitigating factors, including that Muyskens was the sole lead prosecutor responsible for more than 200 matters relating to the riot. “She was burdened substantially by an overbroad charging decision that was mandated by office leadership, and she was later further burdened by understaffing for such a large matter,” the committee said.
But the mitigating factors didn’t outweigh the seriousness of Muyskens’ conduct, the committee concluded.
Muyskens had argued that a judge’s order to limit the volume of cellphone disclosure to the defense guided her decisions on video evidence. She also claimed that an order to disclose the entirety of edited videos applied only to one video, and de-escalation techniques shown in the videos were not exculpatory.
In a May brief, Muyskens had argued the evidence “failed to even come close to the incendiary hyperbole” of the Office of Disciplinary Counsel, Reuters reports in its story on the suspension recommendation. “The evidence showed there was no conspiracy to suppress evidence. There were no lies. There was no intentional misconduct,” the filing said.
The brief added that Muyskens resigned from her job in the U.S. attorney’s office in Utah and “quit the legal profession.”
Muyskens is represented by Adam Hoffinger of Greenberg Traurig.
“Because this is just the first step in the ongoing decision process,” Hoffinger told the ABA Journal, “we have no comment at this time.”
See also:
Federal prosecutor facing discipline for altering video evidence against anti-Trump protesters
Updated Oct. 8 at 2:38 p.m. to include Adam Hoffinger’s comment.
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