Filed D.C. Superior Court 12/13/2017 Clerk of the Court IN THE SUPERIOR COURT OF THE DISTRICT OF COLUMBIA Criminal Division UNITED STATES of AMERICA Plaintiff, Criminal Nos. 2017 CF2 001280 v. 2017 CF2 001267 Judge Leibovitz SASHA SANTER HILL, Next Event: Status Hearing 12/ 15/ 17 and IADA RONESHA YOUNG Defendants. IADA AND SASHA IOINT MOTION TO DISMISS THE INDICTMENT FOR PRESENTATION OF FALSE TESTIMONY TO THE GRAND As a result of pretrial disclosures by the government, the summary testimony of Detective Greggory Pemberton before the grand jury has only now become available to Ms. Young and Ms. Hill. Counsel?s review of that testimony makes clear that it was false with respect to Jada Young?s and Sasha Hill?s participation in the march, as the government now concedes in its extra-judicial amendment and reduction of the indictment. Under D.C. case law, the indictment must be dismissed because the false testimony of Detective Pemberton substantially in?uenced the grand juryFs decision to issue the indictment naming Ms. Young and Ms. Hill for eight felony counts. Without dismissal of the indictment, Ms. Young and Ms. Hill would be deprived of their constitutional right to have a felony case be presented before a Grand Jury. The fact that the government recognizes the impropriety of the indictment as to Ms. Young and Ms. Hill, and states a current intention to only try them on three misdemeanor counts does not lessen the constitutional infirmity of the indictment and the requirement that it be dismissed. I. FACTUAL BACKGROUND The grand jury found probable cause to charge that Ms. Young and Ms. Hill participated in the march for the entire 33 minutes, a period that included, the indictment alleges, many enumerated acts of violence and coordinated activity and many opportunities for Ms. Young and Ms. Hill to leave the march, which they chose not to do. The grand jury indicted Ms. Young and Ms. Hill on all of the charges in the indictment, without differentiating them from other participants in the march, based on the false testimony of Detective Pemberton. Recently-supplied Jencks material demonstrates that Detective Pemberton failed to differentiate Ms. Young?s and Ms. Hill?s individual participation in the march to the grand jury from others indicted for their participation in the march,1 but instead led the grand jury to believe that anyone arrested in the kettle had participated in the entire march. He did so even though by the time his testimony was complete on April 21, 2017, he had reviewed hundreds of hours of videotape and had the ability to describe Ms. Young?s and Ms. Hill?s very limited participation in the march to the grand jury, and to differentiate it from that of others who participated in the match from the beginning. Instead, he provided false testimony about their participation, whereupon the grand jury indicted them on eight of the counts. Detective Pemberton ?rst testified to the grand jury what participation in the alleged riot meant, claiming that everyone who was arrested participated in the entirety of the march from Logan Circle to the Kettle. At the very beginning of his testimony before the grand jury, he sets this idea up. In narrating a video, he testi?es: But, by the time that they reach the 1200 block of Street, which is ultimately where the arrests are made, it appears that everyone in this group that's cordoned off by the police is wearing all black, they're carrying these ?ags, and they're sort of knit and packed into a group that has boiled down or coalesced into one group of 1 Our Motion to Dismiss the Indictment for Constructive Amendment ?led on November 28, 2017, details the substantial differences between the indictments allegations and the government?s recent proffer. 2 individuals that all appear to be there for the same reason, chanting shouting, charging police lines, throwing things, and ultimately those individuals are the ones that are arrested. Jan. 31 G. Test. at 9?10. Later, Detective Pemberton gave testimony speci?c to Ms. Young and Ms. Hill that was intended to make clear that if they wore dark?colored clothing and were arrested, they should be considered included within the larger group of marchers indicted by the Grand Jury. The totality of the testimony as to Ms. Hill was: This is a picture of Sahsa Hill. Is Sahsa Hill one of the people who was arrested in The Kettle that day? A Yes. And in this picture, is Sahsa Hill wearing dark-colored clothing? A Yes. Have you identi?ed Ms. Hill as having participated in this riot? A Yes. And are there any other individuals who you have associated Ms. Hill with? A Yes. Ms. Jada Young and Mr. Ortiz-Vasquez. April 21 GJ. Test. at 71. His speci?c testimony as to Ms. Young was similar: This is Jada Young. Is Young one of the individuals who was arrested in The Kettle on January 20th? A Yes. And in this picture, is she wearing all black-colored clothing? A Yes. And are you aware of any videos in which Ms. Young -- well, have you identi?ed in any videos as someone who participated in the riot? A Yes, I have. Are you aware of any connections between Ms. Young and any other defendants? A I believe Ms. Young was there with Sahsa Hill. April 21 GJ. Test. at 104-05.2 2 Detective Pemberton had earlier identi?ed a photograph of Ms. Young wearing dark colored clothing and testifying that she was from New York. See Feb. 2, Test. at 40?41. 3 ?fte?iz'?tweJIM there for the same reason,? nor did he have evidence that they chanted or shouted, or that they charged the police line or threw anything. He further stated: ?80, as I said, they shut off the 1200 block there, and the group of individuals that was responsible for the damage really concentrated and just became almost like a ball of individuals, very knit, shoulder to shoulder in that grOup.? Id. at 20. As to Ms. Young and Ms. Hill, his review of the video and photographic evidence would have shown (as the government has now conceded) that neither Ms. Young nor Ms. Hill were engaged in any of those actionswhich Detective Pemberton claimed in testifying before the Grand Juty- r' i rum-?4 i? The grand jury was concerned about the limited amount of evidence presented to it One grand juror asked: ?Is being wearing black and being in the immediate area was cause for arrest?? The grand juror continued: want to find out if being in the area and wearing black, and these police of?cers were following the group for a certain amount of period, and then they were eventually cordoned off, and the wearing black at that time was cause for someone to be arrested.? Feb. 1 GJ. Test. at 43. AUSA Kerkoff then reframes the question to Detective Pemberton, seeking to make clear the government?s view that the group that was arrested contained the same people who had marched through the city from Logan Circle and had caused damage:3 Can you explain again how this group itself was stopped with respect to was everyone just coming here into the group? How was this group stopped? So you've testi?ed before that the group itself that moved through the city was the one that was stopped. Can you explain a little bit more what you mean by that, the group that was moving through the city causing the damage was the one that was stopped? Can you explain that? 3 See also id at 48 (AUSA Kerkoff referring to the group that was arrested as ?being af?liated with this group as it moved thrOugh the city?). 4 Id. at 43?44 (emphasis added). In response, Detective Pemberton explained that this group moved through the city appearing to move ?with one purpose, with that purpose to be to cause destruction and mayhem.? Id. at 44. He continued to explain the black bloc technique and claimed that anyone remaining in the group of people arrested had chosen not to leave: ?anybody that appeared to not be associated with this group left and went another direction, because of the fact that the destruction was so it was proliferating.? Id He testi?ed that during the march the people participating ?coalesced into one group of individuals that was pretty much wearing all black, carrying ?ags, chanting, throwing bottles at people, throwing rocks at the police, breaking windows, breaking cars.? Id. at 44-45. He emphasized that they could have dispersed earlier. Id. at 45. In particular, he stated that the of?cers who were closing in behind them on Street allowed people to go if they wanted to. Id.4 He concludes by saying. So at that time, that group of people that is actively ?ghting the police and trying to charge that line, those people are stopped, they?re stood up, and they?re stood up against that wall which you?ve seen in the 1200 block of L, and at that time the decision was made that those people were under arrest. So I don?t think that there?s anybody that just sort of happened to be there at that point in time. Because they were engaging in active violence against property, and people, and the police - anyone that was left at that location. And from our best estimates from command staff at MPD to include information from helicopters and aerial footage, the group was 4?to-500 when it smrted. The group of individuals that was arrested was about 230. So they had obviously gotten it down to a group of individuals that were the most egregious of the group, and that?s the individuals that were placed under arrest. Id. at 46-47 (emphasis added). 4 The body?worn camera evidence of the of?cers behind the marchers contradicts this assertion. The of?cers are pepper spraying the marchers, yelling for them to move, and forcefully propelling them forward with riot batons. People (including Ms. Young and Ms. Hill) were prohibited from leaving the march by escaping down allies and side streets, thus ensuring that those who complied with police orders could not leave the march and were arrested. 5 Again, Detective Pemberton failed to distinguish between Ms. Young and Ms. Hill from the other participants in the march. He claimed multiple times that people who wanted to leave could and did leave. In discussing the second time the group went to Franklin Square, he testified: from the interviews that I've conducted with police and command staff and the videos I've watched, anybody, regardless of what you'd done up to that point, probably could have just walked away and could have just left and got on a Metrobus or walked out of town, but they didn't and you can see from a number of the videos that they regroup again, and there's a lot of sort of coordinating, of "Stay tight, let's get together, this is the direction we're going to go." They're you can really tell from their the way that they're speaking and what they're saying is that they're trying to get together and continue the activity that they've been up to. Jan. 31 G. J. Test. at 16?17.5 Of course, Ms. Hill and Ms. YOung were not present in Franklin Square and they did not have these opportunities to walk away nor had they witnessed the violence that occurred before they were swept up in the march at 14th and Streets. II. ARGUMENT The Court of Appeals for the District of Columbia has established that in cases in which the presentation of false testimony before the grand jury is alleged, dismissal of the indictment is warranted if it is established that the false testimony substantially in?uenced the grand jury?s decision to indict or where there exists a ?grave doubt? whether the dec131on to indict was free from the substantial in?uence of the false testimony. Hunter a. United .S'taz?er, 590 A.2d 1048, 1051?52 (DC. 1991); see also Bank ay?Nom Scotia 0. United 5mm, 487 US. 250, 256 (1988) (testis whether the false testimony ??substantially in?uenced the grand jury?s decision to indict,? or if there is ?grave doubt? that the dec1s1on to indict was free from the . 7 lot of this damage occurring, one of the thing that 5 10 ?And as the Video continues if?gcfizsd?iat angzbody that doesn't appear to be directly af?liated With these mdiwduals sort of peels off and moves away other than a few members of media that are photographing or ?lming"). 6 substantial in?uence of such [false testimony]?) (quoting United States a Met/Jame, 475 US. 66, 78 (1986)). The above testimony from Detective Pemberton as applied to Ms. Young and Ms. Hill is false. They were not part of a group that met in Logan Circle and marched for 33 minutes through the city participating in numerous acts of destruction; they were not at Franklin Square. In fact, the government now concedes this point; In contradiction to the speci?c allegations in the indictment, neither Ms. Young nor Ms. Hill traveled with the march (which the indictment alleges was dominated by the black bloc) for 16 blocks over a period of 33 minutes. Moreover, they did not have multiple opportunities to leave the march, including the two speci?cally alleged by the indictment; they could not have been aware of any voice commands during those 33 minutes; and they could not have heard for most of the duration of the march the cheering that is alleged to have celebrated the claimed violence and destruction. Yet Detective Pemberton?s testimony led the grand jury to believe that Ms. Young and Ms. Hill had participated throughout the march from its beginning in Logan Circle, had seen the violence and chosen to say in the march, and had numerous opportunities to exit the march. Detective Pemberton grouped everyone arrested into one fact pattern, and failed to distinguish among different defendants doing different things. Clearly this false testimony substantially affected the grand jury?s indictment in this case. The grand jury indicted Ms. Young and Ms. Hill for participating in the alleged riot from its very beginning. The grand jury indicted them for four separate property destruction counts at times that they were not even with the march. It is reasonable to conclude therefore that the false testimony substantially affected the grand jury?s decision. This case is similar to Wright 12. United Siam, 564 A.2d 734 (DC. 1989). There, with the removal of the false testimony, the Court of Appeals concluded that its ?analysis of the charging decision in this case certainly has established that the false testimony ?substantially in?uenced the grand jury?s decision to indict? . . . Id. at 738. The fact that the government now concedes that Ms. Young and Ms. Hill participated in the march for only three blocks and seven minutes makes clear that Detective Pemberton gave false testimony and, as a result, Ms. Young and Ms. Hill were deprived of their Fifth Amendment right to a fair hearing before the Grand Jury. CONCLUSION For the reasons stated above, this Court should dismiss the indictment as to Ms. Young and Ms. Hill. Dated: December 13, 2017 Respectfully submitted, Kristin M. Robinson Mark A. Srere (D.C. Bar No. 414487) Daniel C. Schwartz (D.C. Bar No. 017749) Kristin M. Robinson (D.C. Bar No. 498216) BRYAN CAVE LLP 1155 Street, N.W. Washington, DC. 20004 Phone: (202) 508?6000 Fax: (202) 508-6200 mark.srere@bryancave.com Sax/3a Hill 2?7?]ada Young