FAQ for Jan. 20 Arrestees

Dear Friend and Comrade,

DC NLG is committed to lending support to defendants arrested on January 20 who are still facing charges. As these cases progress, we will continue to serve as a resource. If you have any questions that are not addressed in this FAQ, please contact us at dcmassdefense@gmail.com.

Before we go any further, we must point out the following information is not legal advice. Defendants should address any and all questions they have with their lawyers. We are forbidden from directly communicating with defendants who are represented by an attorney. If you are not represented, feel free to email us for assistance in finding an attorney.

We have received several questions about the court process and what defendants can expect in the future. What follows is our attempt to answer some of these questions. Defendants can feel free to share this FAQ with their defense counsel if they think it may be helpful. Please note DC NLG is not representing anyone arrested on J20 and cannot offer defendants any legal advice.

Frequently Asked Questions

Can the NLG represent me?

If you have a criminal charge pending against you, then you should have already been appointed an attorney. Even if you decide later to secure the services of another attorney, right now you have been assigned someone who represents you.

As a legal organization, the NLG cannot speak with a represented person about their cases unless we have explicit permission from your attorney. This is for your own protection—to ensure you do not receive bad or conflicting legal advice from people who do not know your case. While we want to serve as a source of support and provide you with some general information—some of our members are actively representing people facing allegations related to events that took place during Trump’s inauguration—as an entity we do not represent people with pending charges and do not have attorney-client relationships with individuals. Therefore, we cannot give specific legal advice about anyone’s particular case.

We note that you do not have to keep your court-appointed attorney; people are always free to hire their own lawyers. If you are dissatisfied with your court-appointed attorney and cannot afford to hire private counsel, then you can complain about your attorney to the judge. This does not guarantee that you will be reassigned a new lawyer, as there is no right to choose the court-appointed attorney who represents you.

Again we emphasize, we cannot offer you legal advice and this document is not intended to offer you legal advice, but rather to provide some generalized information about the DC court system.

I don’t know who my attorney is. How do I find that information?

Information about pending cases is available online at: https://www.dccourts.gov/superior-court/cases-online

You can look up each case at this link by defendant name or case number and see your case information, including the name of the appointed attorney, the charge, whether there is a “contribution order,” upcoming court dates in the case, and the outcome of hearings that have already been held in the case.

In order to obtain the actual documents, you must go in person to the Criminal Clerk’s Office on the 4th Floor of the DC Superior Court (500 Indiana Ave NW) and use the public terminals there. If you would like to print out documents you need to bring your own paper.

Now that I know who my attorney is, how do I contact them?

You can contact the Defender Services Office (DSO), which is a division of the Public Defender Service of the District of Columbia (PDS) and they will tell you who your attorney is and how to contact them. DSO is who interviewed you when you were assigned. DSO’s number is (202) 824-2830.

Can I speak about what happened to me with anyone other than my attorney?

The only confidential conversations you can have about what happened before, during, and after your arrest, are with your attorney. There is no “Facebook friend privilege,” there is no parent-child privilege, indeed even spousal privilege is not absolute. This means if a defendant talks about the charges pending against them and any conduct they may have engaged in with anyone other than their attorney, that person could be subpoenaed to testify against them.

Note: this is another reason why people should not reach out to the NLG with questions about the specifics of their case. Once again, this letter is intended for informational purposes only, and is not considered legal advice.

The court told some people they need to pay a certain amount for the services provided by their assigned attorney. Do I need to make a payment of some sort?

It depends, and this is something you can ask your attorney about. You probably don’t have to pay this amount before your next court date, and you may not end up having to pay this amount at all, or you may have to pay a different amount. You can ask your lawyer about the “contribution order” and discuss whether your order should be reassessed, reduced, or vacated.

What happens next?

Pretrial steps

The government is required to prove that there is probable cause to believe each defendant committed the crime with which she is charged, either at a grand jury or a preliminary hearing. The defendant is then arraigned, or formally notified of the charges filed against her.

After a defendant is arraigned, the defense attorney speaks with the defendant about the case, asks the government to disclose any discoverable materials, conducts an investigation of the allegations in the indictment, and files any pretrial motions to advance the defense’s case. While this is taking place, the court may schedule one or more status hearings to get an update from the parties about progress made towards finding a way to dispose of the case. The court may also schedule hearings to hear legal arguments in favor of or in opposition to any pretrial motions.

Once the defense and the government complete their exchange of discovery materials and their investigations, a status hearing is held where the defendant informs the court whether they want to plead guilty to the charge or take their case to trial.

If you decide to take your case to trial, the date of your trial will depend on the court’s calendar, the availability of potential jurors, and the amount of time requested by the attorneys to prepare for the trial. Your attorney will work with you to gather evidence and witnesses, and to prepare a legal defense.

Plea bargains

The government often offers the defendant a “plea bargain.” A plea bargain is an agreement where the defendant agrees to plead guilty to the offense in the plea bargain and the government agrees to only ask for the penalty that is listed in the plea bargain. The judge is not required to accept the plea bargain, but in most cases the judge will respect the agreement. Your defense attorney is required to communicate all plea bargains that are made to you and discuss the benefits and consequences of accepting the plea bargain. The final decision about whether to accept a plea bargain is made by the defendant.

Social media subpoenas

As part of their pretrial investigation, the government and the defense may issue subpoenas to secure witnesses or documents they need to prepare for trial. Some defendants have had information from their Facebook and Apple accounts subpoenaed by the government through grand jury subpoenas. This may happen to you, and your lawyer can advise you on what to do should it occur. You lawyer may be able to file a motion with the court to try and prevent the execution of the subpoena.

What if I am having problems with my lawyer?

The judge has the ultimate authority to decide whether the defendant can have a new attorney, especially when a defendant has a court-appointed lawyer. It is not uncommon for defendants to have problems working with their attorney, such as not being able to contact their lawyer or having a strategic disagreement. NLG cannot offer you advice on this point. But as a general matter, we hope defendants will work diligently to foster a strong working relationship with their lawyers.

However, if the disagreement cannot be resolved, the defendant may request the court appoint a new attorney or hire their own lawyer. Please note that defendants with the means to do so are free to hire their own attorney. If the defendant requests a new court-appointed lawyer, she should be prepared to give the judge specific reasons for requesting a new attorney.

The courthouse is not secure!

We are pleased that many concerned people have been attending the hearings at the DC Superior Court. However, we want to make sure everyone is aware that the courthouse is not a secure place. To begin with, there are police officers, U.S. Marshals, police investigators, and prosecutors throughout building. Beyond that, there have also been reports of plainclothes police officers attending the court hearings and recording the conversations of people in the gallery. There may also be informants in the courthouse. Please remember that when you are in the courthouse you should be very careful about what you say.

Do I need to appear physically for all of my court dates?

A standard condition of release is that the person will appear at all future court dates. Willfully failing to appear at a court date you have notice of could be treated as a violation of a release condition. Violating your release can result in sanctions, up to and including revocation of release and pretrial detention at the DC Jail. Failing to appear at a court hearing can also be charged as a separate felony. If you are unable to appear for your hearing for some reason, notify your attorney immediately so they can attempt to reschedule the hearing or perhaps waive your presence at the hearing and proceed without you.

I was arrested and my cell phone was confiscated. Do I need to worry about my privacy on my phone going forward?

In this day and age, it is possible for law enforcement to compromise phones. So, if you can afford to replace your phone taken by the police and returned to you, that is the safest option. Password protecting your phone with at least six characters is also a good idea. If you choose to keep your phone regardless of the risk, change your password. If the police did not return your phone to you, you can still transfer your phone number to a new phone through your phone service provider. Talk to your attorney about what to do if the police confiscated your phone.

Should I write down what happened to me during and after my arrest?

Do not write anything down until you have talked to your attorney about doing so.

What is Legal Solidarity?

Legal Solidarity is a decades-old strategy whereby arrested peoples unite together in order to lessen the impact of the court system on the group as a whole. Typically, people collaborate with each other by making decisions as a group–when people unite together they are far more powerful than they are as individuals, and this principle can also be true in court.

The goal of Legal Solidarity is to make people safer. For example, during incarceration, police often target specific groups, such as transgender and gender-nonconforming people. Legal Solidarity may help to combat or deflect such selective policing practices. A similar practice occurs in court with the prosecutor targeting certain individuals such as known organizers, people of color, and immigrants for harsher treatment.

Defendants may be interested in engaging in Legal Solidarity in their defense against the charges they are facing. We urge you to discuss any such desires with your lawyer.

The Midnight Special Law Collective Legal Solidarity Manual is an excellent guide for more information and a way to find additional resources.

What other support will the NLG be providing for people who were arrested and their families?

The NLG is committed to the protection of the civil rights of all demonstrators, including those who were arrested. In anticipation of anti-inauguration protests, we trained hundreds of Legal Observers and established a legal support hotline that we staffed 24 hours a day. We partnered with allied legal organizations in area, most notably Law For Black Lives DC, and worked together to provide jail support. We are currently sending Legal Observers and other volunteers to the courthouse to observe proceedings and offer our support.

Many NLG chapters are able to provide pro bono criminal representation for those subjected to arrests during demonstrations. Because of the unique circumstances of DC’s criminal justice system and of these cases, we are unable to do the same here.

Although ethics rules prevent us from communicating with defendants directly, we are instead have worked to help organize the lawyers. We have resources about the principles of jail and defendant solidarity and experience addressing the political nature of these arrests. We are also providing research and other resources and are tracking the cases of everyone arrested on J20.

For questions that come up, either from defendants or from family members, please continue to contact us at dcmassdefense@gmail.com.

What else can I do?

It is great that you want to help! One thing you and your friends and family can do is donate to the J20 legal defense fund that has been set up to provide financial assistance to defendants. We understand that much of these funds will go towards providing non-DC based defendants transportation for court appearances. At this point, the court has refused to waive personal appearances in court for scheduled hearings.

If you are a lawyer, law student, or legal worker who can help our effort by offering representation, visiting the courthouse, performing legal research, or filling other related needs, we want to hear from you! Please email dcmassdefense@gmail.com.

We hope defendants can rely on their support networks in this difficult time. Building community with each other is a strong strategy to lessen the impact powerful regimes have on us all.

One final note:

We are upset this happened to you, that you are facing these charges, and we know how scary the court system can be. You have our utmost respect for the strength you have certainly already shown in enduring this treatment. No one should be treated like this. We hope you have a support network you can rely on in this difficult time, and we encourage you to reach out. We will be here for you in any manner we can ethically be going forward, and will be watching your proceedings closely. There will be much to do in the years to come, and know that you are not alone.

In Solidarity,

DC-NLG Demonstration Support Committee