USA v. Tammy Brown: Pre-trial hearing

Tammy Brown protesting at the US Supreme Court

In fewer than 10 minutes, the first pre-trial hearing in the federal Class B misdemeanor charges against Tammy Brown was conducted virtually beginning at 10:40am today. Motif and about 100 other members of the public called in to hear the proceedings. Brown had encouraged friends and supporters to call in to demonstrate the public interest in her case.

Brown, a regular Motif contributor, is charged for her participation in a protest October 25 outside the US Supreme Court building that she streamed on Facebook Live – facebook.com/tammy.brown.712/videos/10219973699747021 – during which she chained herself to government property. The charges, according to the Womxn Project HQ sponsoring the Facebook event encouraging supporters to call in, are “parading” and “destruction of property.” The protest was against the confirmation and seating of new Associate Justice Amy Coney Barrett. Because of where the alleged offenses took place, the case (20-mj-0217) is in the US District Court for the District of Columbia, and Brown is represented by a federal public defender.

Magistrate Judge Michael G. Harvey sounded mildly annoyed with the government prosecutors for not yet having offered “diversion,” which would mean avoiding the 60 days in prison or $5,000 fine, or both, that Brown said in a public October 28 Facebook post – facebook.com/tammy.brown.712/posts/10219994522027565 – constitute the maximum sentence for the offenses charged. The prosecutor told the judge that she is waiting on approval from her office as to what offer can be made to the defense, suggesting the possibility that political considerations account for the delay. The term “diversion” encompasses a range of possible outcomes, from a traditional plea bargain where the defendant admits guilt and accepts an agreed sentence, to deferral of the charges entirely resulting in no criminal record upon “good behavior” for a period of time such as a year.


Most of the time in the short hearing was devoted to scheduling a time acceptable to all of the parties, and 11am on Thursday, December 3, was chosen for the next status conference. At that point, the prosecution is expected to have made its offer to the defense, and Brown will have made her decision whether to accept the deal or request a trial. The judge said that the charges are not serious enough to entitle Brown to a jury trial, which would be effectively impossible during the pandemic, but he would attempt a virtual trial if that was what she wanted. (In some jurisdictions, minor charges can be adjudicated without a jury at a very low level of the court system, and if the defendant loses they have the option of either accepting the verdict or being tried by a jury de novo as if the first trial had never taken place.) Risking trial would expose Brown to the possible maximum sentence, including prison time, although her lawyer said during today’s hearing that she has no criminal record.

Brown said her cell phone was seized when she was arrested and is not expected to be returned to her. Friends and supporters encouraged financial contributions to her via PayPal and Venmo, and Brown said any extra money will go to the Womxn Project HQ. Brown wrote, “Finally, thank you for all of the financial donations that have come in so far. I obviously need a new phone, and I’ve incurred significant expense in doing the action already, so this will all be helpful. As of right now, I have no idea what I’ll be on the hook for in the end … could be significant fines, could not be. We just won’t know until I get my sentence. Until then I ask that any further donations go directly to The Womxn Project HQ. They have been my emotional support through all of this, and you have NO IDEA how hard they fought behind the scenes to get me released. My case is kind of complicated, and I could have easily fallen through the cracks, but they WOULD NOT ALLOW THAT. Also their mission is my mission, and I would’ve NEVER found my voice as an activist without them. So if you believe in voter education, in racial justice, in reproductive freedom, in the democratic process, in bucking the system. Then donate! Like I said, I don’t know what my future needs will be, so I would just feel more comfortable directing the money to an organization that is dear to my heart, and is continuing to do the work on the ground right now.”

If the case persists past the inauguration of President-elect Joe Biden on January 20, although the Justice Department in theory tries to avoid political considerations in criminal prosecutions, the changed circumstances may affect what the prosecution is prepared to offer by way of diversion, or even whether the continue to pursue the case at all.