Federal prosecutor under ethics cloud still prosecuting; few DC prosecutors ever punished

Seven years after hundreds of people were arrested in D.C. protesting Donald Trump’s inauguration, those prosecutions are suddenly back in the spotlight after ethics violations were raised against the federal prosecutor in the case.

The group that investigates complaints against D.C. lawyers, the D.C. Bar Board on Professional Responsibility, recently filed a complaint against Jennifer Kerkhoff Muyskens. After the complaint was filed, Kerkhoff, the prosecutor, was ordered to respond and deny or explain her actions in a proceeding that could take away her law license.

At the time of the arrests, she was an assistant U.S. attorney in D.C. and the lead prosecutor on the cases. No one was ever convicted, but now the prosecutor has been accused of lying a dozen times.

On Jan. 20, 2017, hundreds of protesters took to D.C.’s streets. That afternoon, D.C. police mass arrested more than 200 people.

Alexei Wood was among the arrestees. He told the News4 I-Team he was there as an independent journalist.

"I was there; I didn't do anything illegal," Wood told the I-Team from his Colorado home.

Olivia Alsip, a recent college graduate at the time, was there, too.

“It was very feasible, in my mind, that I could go to prison for the rest of my life," she told the I-Team from Chicago.

Reporting from that day and since makes clear few of the 230 people arrested were directly involved in the violence, but more than 200 of them were indicted on felony rioting offenses. Some of the protesters, including Wood, were acquitted at trial. Charges against more than 100 other protesters, including Alsip, were dropped.

Lead prosecutor Kerkhoff worked with Gregg Pemberton, who was the lead detective on the cases. Pemberton is now chairman of the D.C. police union.

They came to court armed with plenty of undercover video from protest planning meetings they were going to use to try to convict the protesters. The I-Team obtained and reviewed some of the video entered as evidence from one of the defendants.

The investigation by the D.C. Bar Board on Professional Responsibility found there was more in the videos prosecutors didn’t turn over, including protesters talking about nonviolence and de-escalation. According to the recently filed ethics complaint against the prosecutor, those key moments in the video were either edited out or never turned over to the defense team.

Now the prosecutor must explain if it’s true and why it was apparently done.

In a recently filed specification of charges, the D.C. Bar Office of Disciplinary Counsel alleges Kerkhoff hid key evidence and made false statements about it at least 12 times during the cases — to judges, defense attorneys, even to internal investigators at the Department of Justice. That's not allowed. Long-standing rules insist prosecutors share all the evidence with the defense, especially evidence which could help prove their innocence.

In 2018, a D.C. Superior Court judge in one of the protesters’ rioting cases ruled Kerkhoff "acted intentionally to withhold evidence.” D.C.'s American Civil Liberties Union complained to the Department of Justice about the prosecutor in 2019, but five years later, the News4 I-Team found Kerkhoff is still prosecuting federal cases. She now works for the U.S. attorney in Utah.

When asked about the prosecutor’s move to Utah, DOJ said it was not to avoid scrutiny over professional misconduct accusations.

Beyond that the U.S. attorneys in D.C. and Utah and DOJ headquarters all "declined to comment on the D.C. Bar allegations." Jessie Liu, the former U.S. attorney for D.C. who was in charge at the time of the arrests and is now in private practice, did not reply to the I-Team’s emails.

“What we’re talking about is an egregious example of prosecutorial misconduct,” Michael Perloff, interim legal director of ACLU of DC, told the I-Team. "She absolutely shouldn't be prosecuting cases today.”

Neither Kerkhoff nor her lawyer replied to I-Team email requests for comment. According to the D.C. Bar, Kerkhoff’s reply is due Sept. 2. A hearing date has not been set.

“This really goes to what I think is a reason why people don't trust our criminal legal system institutions,” Perloff said, “because those institutions which we rely on to uphold and enforce the law too often will not follow the law themselves."

Georgetown Law's Philip Schrag studies cases like this and explained to the I-Team, “Judge (Alex) Kozinski of the Ninth Circuit once said in the opinion that Brady violations, withholding evidence from the defense, are an epidemic in this country. If that's the case, the only way to cure the epidemic is to hold prosecutors seriously accountable."

This case is just at the beginning of the disciplinary process. The I-Team found five similar cases in D.C. – they each took years to resolve — and only one prosecutor lost their law license as a result.

Years after their cases ended, the drama isn’t over for Olivia Alsip and Alexei Wood.

“I don't think you should be able to continue practicing law,” Alsip said, “if you can't be trusted to be an ethical person."

The D.C. Bar complaint discusses Gregg Pemberton’s actions, as well. Numerous times throughout the complaint, the D.C. Bar says Pemberton acted with Kerkhoff to withhold or edit evidence. The D.C. Bar, however, has no authority to discipline him as he is a D.C. police officer, not an attorney.

While they admit they are aware of the complaint, a spokesperson for D.C. police would not comment on Pemberton’s connection to the cases, and neither is Pemberton replying to text or email messages. 

Reported by Ted Oberg, produced by Caroline Tucker and Rick Yarborough, and shot and edited by Jeff Piper and Lance Ing.