Reporter's trial on George Floyd protest coverage exposes abuse of prosecutorial power

The prosecution of Andrea Sahouri, the Des Moines Register reporter arrested while on assignment covering Black Lives Matter protests in the city last year, was never about justice.

This was not about someone who broke the law and needed to be held accountable for her actions that evening. It wasn’t even about someone who might have broken the law, if you watched the trial and saw the state’s evidence, as I did.

This case was about the First Amendment, that 45-word sentence that enshrines the important freedoms of the press and the right to peaceably assemble, among other things. There is a reason it is the first amendment written in the Constitution, containing sacred tenets we must never take for granted.

But this case was about more than that: It was a gross abuse of police and prosecutorial power, even more glaring when you consider the protests themselves were over exactly that. Across the country, in the days following George Floyd’s killing, we saw police arrest, pepper-spray, tear gas and shoot projectiles at many innocent protesters simply exercising their First Amendment rights — as well as at journalists doing their jobs.

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This case also exposed many of the flaws, none new, that make our criminal justice system so unbalanced. It is a system designed out of necessity for volume and relative speed — consider that the Polk County Attorney’s Office, the one that prosecuted Sahouri, handles well over 10,000 criminal cases annually. That means the system must adjudicate about 40 cases a day.

The early years of my career as a reporter were spent in courtrooms, witnessing and reporting on the endless docket of cases. Often, someone accused of a crime would have just minutes to meet their public defender and decide whether to accept a plea deal.

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I sat in the courtroom during Sahouri’s recent trial on two misdemeanor charges — interference with official acts and failure to disperse — and was able to witness firsthand the prosecution’s case. Last August, amid repeated court delays due to COVID-19 and mounting pressure to dismiss the case, Polk County Attorney John Sarcone would say only “we … will do our talking in the courtroom.”

If prosecutors intended to do their talking in the courtroom, it turns out they had very little to say.

The case against the reporter

Here’s what we saw from the prosecution: A police body-camera video taken more than an hour before Sahouri’s arrest shows a chaotic scene at an intersection where protesters block traffic. Sahouri and then-boyfriend Spenser Robnett are briefly seen on the sidelines as police yell at protesters to “back up” (Sahouri and Robnett were already back) and to “protest peacefully,” words clearly heard on the video. Assistant Polk County Attorney Bradley Kinkade contended the word “disperse” was being broadcast on a passing patrol car’s PA system, although I never did hear that word despite the video being played multiple times.

This, in total, was their evidence that the crowd had been declared an unlawful assembly and that police had given clear dispersal orders for people to leave. If police were attempting to clear the crowd, it’s not unreasonable to expect them to actually declare that a dispersal order was being issued and that anyone who stuck around was subject to arrest. Why yell instead to “get back” or “protest peacefully?”

Prosecutors also had the testimony of the arresting officer, Luke Wilson, who, against department policy, hadn’t activated his body camera. He told the jury he’d used a “fogger” to spray an industrial-strength chemical irritant to clear the crowd and was then forced to arrest Sahouri because she wouldn’t leave. He claimed Robnett attempted to pull her away, leading to him being pepper-sprayed and arrested, too.

However, evidence contradicted that account. A video from a store in the area showed Sahouri and Robnett leaving, and moments later, an officer who appeared to be Wilson spraying a chemical irritant directly in the face of a man standing on the corner. The officer rounded the corner, and 18 seconds later, another officer who had his body cam on approached Wilson, who already had Sahouri in handcuffs. She cried out that she’s "press," and marks on her face mask made clear she’d been pepper-sprayed at close range. Robnett was at least 10 feet away on the sidewalk.

Rep. Karen Bass:Thirty years ago, I watched Rodney King beaten. We thought our fight was finally over.

The point of this is not to relitigate the case — the jury already determined the two were not guilty. It’s instead to highlight the ludicrousness of the prosecution itself and Sarcone’s statement after the verdict to the Associated Press when he said, “We felt there was more than sufficient facts to establish the case.” Clearly, he was not looking at the same set of facts the rest of us saw.

What this says about the system

Sahouri’s case, while troubling all on its own, points to a larger pattern of baseless arrests and charges during protests in Des Moines last summer. Already, 89 cases have been dropped.

The Backstory: A reporter arrested while covering a protest faces trial Monday. Here's why you should care.

It also speaks to a system that values expediency over justice.

The legal tenets of “innocent until proven guilty” and “reasonable doubt” are comforting concepts, especially for those never accused of a crime. We want to believe we’d be treated as not guilty until proven otherwise, although the overzealous prosecution of Sahouri tells a different story. 

What made her case so unusual — beyond the county attorney’s decision to prosecute a working journalist for being at the scene of a protest — was that it made it to trial at all. The overwhelming majority of cases (conservative estimates peg it at 95% of misdemeanor cases) resolve in plea deals, guilty pleas or dismissals before trial.

Kinkade tried hard to ensure Sahouri’s case didn’t make it to trial either. Last year, he argued the county should not have to produce discovery because simple misdemeanor cases are a "turn-and-burn" docket meant to be handled as quickly and inexpensively as possible. Thankfully, a judge disagreed and ordered the county to turn over evidence, which exposed the missing body camera footage and the contradictory evidence.

Without this, it simply would have been Sahouri’s word against that of the officer. And her acquittal may very well have been a conviction.

Kinkade also offered Sahouri a plea deal: Admit to one misdemeanor charge, and the other would go away. She rejected the offer because she’d done nothing wrong, but it’s not hard to see how other defendants can’t do the same when confronted with a system that cares less about their actual innocence or guilt and more about getting the case resolved.

The Backstory: A reporter arrested while covering a protest faces trial Monday. Here's why you should care.

Sahouri had a former U.S. attorney defending her in a misdemeanor case, funded by her employer, and the support needed to take this case all the way. Others aren’t as fortunate and are pressured into plea deals because they can’t afford attorneys or the time off to attend court hearings.

Rep. Karen Bass:Thirty years ago, I watched Rodney King beaten. We thought our fight was finally over.

The justice system, already overburdened by heavy caseloads and inadequate staffing, would surely buckle if a significantly larger percentage of minor offenses resulted in trials. Many defendants are guilty, of course, and plea deals often represent fair and just arrangements.

But watching the system at work up close in Des Moines, it’s clear the scales of justice are out of balance. The concepts of innocent until proven guilty and reasonable doubt will never ring true when their caretakers prioritize expediency over truth.

Where do we go from here?

When all is tallied, the county attorney’s office has spent significant taxpayer dollars defending a prosecution that never should have happened. A reporter early in her career has spent more than 10 months clearing her name. And a police department still has failed to say whether an officer has been or will be disciplined for violating department body camera policies.

In this country, we expect our government to be run openly and fairly. The Polk County Attorney’s Office and Des Moines Police Department need to openly and transparently explain to the public why they targeted Sahouri and what protections they will put into place to ensure this never happens again — to anyone.

Amalie Nash is senior vice president of local news for Gannett, parent company of the Des Moines Register, and a former executive editor of the Register.