In the moments before the hearing began, Jac Archer and Justice Forral sat quietly at the defense table, flanked on either side by their attorneys. Minutes later, after the gallery seats behind them had been filled with local activists, clergy members and a Spokane city council member, they were joined by the third defendant — Bajun Malvalwalla II, a tall Army veteran with hair tied back in a short ponytail.
Over the next two hours, the courtroom heard arguments from a fleet of attorneys representing the defendants and two representing the federal government around First Amendment rights, pronoun usage and the meaning of the word “officer,” presided over by Judge Rebecca Pennell.
At the end of a pre-trial motion hearing that could have cleared three Spokanites arrested on federal charges for June 11 anti-ICE protests who refused to plead guilty, Judge Pennell made one thing clear: the case is going to trial.
Archer’s lawyers had filed a motion to dismiss the case, saying the government’s charges would criminalize speech protected by the First Amendment, while Forral’s defense team had filed a second, more complicated motion. Andrea George, on behalf of Forral, said that the federal government did not specify who or what or what had been harmed by the defendants. She argued that three of the four counts of conspiracy should be struck because of an argument that the agents and staff impeded or injured by the alleged conspiracy did not actually constitute “officers,” under federal law.
Malvallwalla II joined both motions, and Archer and Forral joined each other’s, meaning if one motion to dismiss or strike succeeded, it would succeed for all defendants.
The judge was also hearing initial arguments on a last minute motion filed by the Acting Attorney General of the United States, Todd Blanche, and argued by Assistant US Attorney Rebecca Perez. Blanche’s motion asked the court to “exclude any argument or statements that Defendants’ conduct was a proper First Amendment protest,” mentions of former United States Attorney Richard Barker, any reference to policy directives given to the Department of Justice to go after protesters, any references to Minnesota protests, or any arguments that the two Venezuelan men — whose detainment initially sparked the protests — were in the country legally.
(Just two days before Archer, Forral, Malvalwalla and six others were arrested on federal charges, Baker had resigned as United States Attorney for Washington’s eastern district rather than issue the indictment that led to this hearing.)
Before ruling on the motions to dismiss, Pennell heard that argument, as well as others:
- a motion filed by Archer’s defense the night before the hearing to throw out the cases on the basis that there was no lawfully appointed US attorney
- a discussion on what pronouns to use for the defendants and how to phrase a question on the jury selection questionnaire inquiring about whether potential jurors would feel bias towards people using nonbinary pronouns.
Pennell ruled periodically throughout the hearing; on the key points, she found in favor of the federal government, deciding not to dismiss the case out of hand and instead see it through to trial, which is scheduled to begin May 18. Before that, another hearing is scheduled to decide on Blanche’s motion, what questions prospective jurors would be asked, the specific instructions they’d be given to find their verdict and any other motions filed.
“The remedy is to go to trial, and that’s scary, but that is the remedy we have here,” Pennell said. “The government gets to put out its evidence and at least attempt to make its case.”
Bajun Malvallwalla, the father of Malvalwalla II and a Congressional candidate, found room for hope in the judge’s rulings.
“ I heard very clearly that the judge was saying that the bar for the United States Attorney's Office was just raised,” he said. “And if you don’t meet it during your arguments, this thing could end halfway through,” — referring to the judge’s promise that she was willing to consider a Rule 29 motion during or after the trial to end the trial due to lack of evidence.
At a press conference organized by community leaders representing organizations like Peace and Justice Action League of Spokane, the Spokane Community Against Racism — which Archer works for — and Experience Matters, were less optimistic. The rain punctuated heartbreak as they huddled under the eaves of the Philanthropy Center.
“This was an obviously disappointing decision from the judge,” Liz Moore, Executive Director of PJALS, said. “It will always be ludicrous, the idea that was a conspiracy when it was the most spontaneous protest Spokane has ever seen.”
Organizer hadley morrow described the indictment as “a clear moment where the Trump administration is trying to villainize our dissent and criminalize our right to speak up.” They called the prosecution a “targeted attack,” and added that the three people choosing to fight the charges are queer people, people of color and in Malvalwalla’s case, a veteran.
The press conference ended with the soft lyrics of a hymn shared between organizers, many of whom had been outside the ICE office on June 11.
“We are here, with our voices, with our love for each other,” they sang. “Our love for each other will carry us through.”For more details on the ins and outs of the legal matters decided today, check back tomorrow.
