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Unresolved 2015 protest case reveals Denver police have been concealing evidence from all activist trials

Eric Brandt on the hoof
DENVER, COLORADO- A seemingly ordinary protester-in-the-roadway case has exploded in the face of Denver city lawyers from the prosecutor’s office to the department of civil liabilities. The case against activist Eric Brandt, for chasing a police motorcade which had falsely arrested a fellow demonstrator, today revealed that in arrests made at political protests, Denver police have been withholding key reports from the evidence disclosed to those defendants.

Denver police file what’s called an “After Action Report” for public protests that prompt a mobilized law enforcement response. But the department doesn’t release the report to arrestees who face charges stemming from those actions. Ostensibly the reports are kept secret to avoid public scrutiny of crowd control strategies, but the reports also document the attendance of officers who witness the purported crimes. Those –otherwise undocumented– personnel write reports which are then not included in the discovery evidence. That is what defense lawyers call “Brady Material”, witnesses who are not consulted about what they saw, possibly exculpatory evidence which is being denied to the accused. What role those officers might play in the circumstances leading to the arrests is also kept a mystery.

Last week just before Eric Brandt’s trial, a DPD After Action Report for the protest arrests of August 28, 2015 was accidentally brought to the court’s attention the morning of trial. DPD Commander Tony Lopez brought the AAR report with him as a crib sheet to help his officers corroborate their witness testimonies. The prosecuting attorney coaching the witnesses was offered the report as an aid and as a consequence she was obligated to reveal it to the defense. At first Judge Frederick Rogers gave the defense one hour to study the new document. An hour later, after everyone had pondered the implications, the jury pool was excused for good and Rogers conceded that more time was needed for further subpoenas.

At a pretrial conference today Judge Rogers tried to limit the extent of additional evidence needed before the case could proceed. He rejected a subpoena which he deemed too broad, and limited requests for further AARs to those filed August 26 and 28th. While a prosecuting attorney described such reports as so rare she’s never encountered one before, another city attorney sheepishly admitted that a paralegal in his office had unearthed three AARs that may meet the criteria. So much for rare, that’s three in as many days. Another city attorney insisted that she needed to vet those beforehand, but a peeved Judge Rogers volunteered to assess their applicability himself. If they weren’t in his in-box by 4pm, he’d assume they were forwarded to the defense as ordered.

In question in this particular case was a mention that the head of Denver’s Dept of Public Works had ordered the police action on August 28. This is at odds with all previous police testimony which denied communication with Public Works. It goes toward impeachment of those officers as well as establishing whether Denver police have been abusing the city’s “encumbrance” ordinance. The encumbrance code is what Denver has used to squash sustained protests beginning with the original 2011 Occupy Denver encampments.

This is not the first time After Action Reports have come to light. A lieutenant testifying against an activist last November mentioned in his testimony that the reason he was fully confident in answering how many officers had responded to the protest in question was that he’s just reviewed the AAR. Unfortunately the lawyer defending that case didn’t bite.

And the public learned about AARs when one was accidentally included in the discovery evidence of an Anonymous protester arrested at MMM2015. That report famously revealed that the police outnumbered the protesters, 27% of whom were undercover “Shadow Teams”. Unfortunately the furthest defense attorneys got to more evidence were reports sent for in-camera review by the judge, in that case municipal Judge Espinosa, who ruled there was nothing relevant to the case. The case by the way is under appeal.

Now it remains for someone to file a CORA Colorado Open Records Act request for the missing AARs. There’s one for every public protest countered by police. Anyone who has been convicted of an infraction at a protest, or was coerced into taking a plea deal on the face of one-sided evidence, was denied the full story they needed to defend themselves.

For Eric Brandt’s current case, his being the last of charges filed against activists who occupied the Lindsey Flanigan Courthouse plaza in Fall months of 2015, the defense is seeking the AARs for the 26 police raids made against the protest, from its start on August 26 to its terminal extraction on October 22. Were the police acting within their authority? Were their orders legal? Did Denver abuse an ordinance to curtail free speech in the plaza? Ultimately authorities curbed the protest by imposing a curfew. Was that a flagrant work-around to circumvent a federal injunction meant to prevent their harassment of protected activity in not only a traditional free speech area but a designated free speech zone. That battle is already scheduled in April 2017 in federal court.

NOTES:
Those dates, if you’re interested, were Aug 26, 10am & 11pm; Aug 28, 6pm & 7:30pm; Sep 2, 6pm; Sep 8, 4:30pm; Sep 12, 1am; Sep 13, 3am & 11pm; Sep 14, 11am & 1:30pm; Sep 15, 3am; Sep 16, 12am; Sep 17, 1:20am; Sep 18, 1:20am & 5pm; Sep 19, 2:40am; Sep 22, 12:30am; Sep 24, 3am; Sep 25, 8:30pm & 9:30pm; Sep 26, 2:15am; Oct 9, 1pm; Oct 10, 10:20am; Oct 21, 2pm; and Oct 22, 10am. There may have been more.

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