As a disciplinary hearing opened for Jennifer Kerkhoff Muyskens, her lawyer, Adam S. Hoffinger of Greenberg Traurig LLP, described her as a "longtime dedicated public servant" who faced a "Herculean task" in handling the prosecution of more than 200 people who were arrested at a protest of President Donald Trump's first inauguration in January 2017.
Muyskens, at the time, was chief of the Violent and Repeat Offender Unit in the Superior Court Division of the U.S. Attorney's Office in Washington, D.C. She now faces six disciplinary charges related to her handling of the criminal cases, in which defendants were accused of felony rioting and other charges.
Officials with the D.C. Office of Disciplinary Counsel say Muyskens edited and withheld crucial evidence that would have helped the defendants in the criminal cases.
Muyskens "went too far" in a zealousness to convict, Assistant Disciplinary Counsel Sean P. O'Brien told the three-person hearing committee on Tuesday. He called such conduct from a prosecutor "a very serious violation, because it can result in the unjust conviction and loss of liberty to a human being."
"And in this case, that applied to over 200 human beings," O'Brien said.
O'Brien said that while some people at the Inauguration Day demonstration used weapons, such as crowbars and hammers to smash windows, most of the crowd "was not violent." The government charged hundreds of people who were arrested "under the theory that the crowd was acting as a unit," O'Brien said.
At issue in Muyskens' ethics case is her handling of video recorded by the conservative activist group Project Veritas, which secretly recorded meetings held by protest organizers with a group called DisruptJ20 ahead of the inauguration. Disciplinary authorities say Muyskens withheld video evidence that was exculpatory, as it consistently showed that protesters expected a nonviolent protest and were trained to use nonviolence and de-escalation techniques.
Muyskens understood that Project Veritas "had a reputation for editing videos in a misleading way," the disciplinary authorities alleged.
O'Brien said Tuesday that Muyskens displayed "a willingness to disregard the truth when it suited her purposes, even when she knew that so many people's lives hung in the balance." He said she knew that Project Veritas' involvement would be "a can of worms" and concealed that the group was the source of the video.
About 20 people pled guilty in the criminal cases, O'Brien said. Other defendants were acquitted, or their charges were dismissed.
Hoffinger, Muyskens' attorney, told the hearing committee that the government's cases against the protesters were "grossly understaffed" by the U.S. Attorney's Office and that Muyskens faced harassment and threats for her work on them.
"She worked seven days a week, 15 hours a day. She was a mother with two young children," Hoffinger said. "The marshals escorted her home and to the office because there were threats against her and her family. There was a bomb scare in her family's home on the first day of trial. She slept in her children's bedroom at night."
Hoffinger told the panel that Muyskens had followed the advice and guidance of her supervisors at all times, and that evidence in the ethics case would show that "there was no intentional misrepresentation" and no violation of the D.C. Rules of Professional Conduct.
Muyskens worked in the U.S. Attorney's Office in Utah after leaving the D.C. U.S. Attorney's Office.
Hoffinger said at the hearing Tuesday that his client is now retired and no longer practicing law.
The disciplinary hearing is set to continue for the rest of the week, with additional dates scheduled for later this month. The D.C. Court of Appeals has final say on attorney discipline in Washington.
Counsel for Muyskens on Tuesday declined to comment beyond what was said during the hearing.
Muyskens is represented by Adam S. Hoffinger, Michael R. Sklaire and David G. Barger of Greenberg Traurig LLP.
The Office of Disciplinary Counsel is represented by Hamilton P. "Phil" Fox III, Sean P. O'Brien and Mariah K. Shaver.
The case is In the Matter of: Jennifer Kerkhoff Muyskens, board docket number 24-BD-038, in the District of Columbia Court of Appeals Board on Professional Responsibility.
--Editing by Amy French.
For a reprint of this article, please contact reprints@law360.com.
