It took a Johnson County jury just a few hours on Thursday to decide Tara McGovern was not guilty of both charges for which they had been arrested last November. The charges against McGovern, who was referred to as Tara Dutcher, their married name, throughout the proceedings, were related to an Oct. 16 protest at the Iowa Memorial Union and attracted much local attention and were even covered by the Washington Post.
The pre-trial discussions focused on what the case meant for First Amendment rights, because McGovern was charged with Disorderly Conduct under a section of Iowa Code that was modified by the “Back the Blue” bill Gov. Kim Reynolds signed into law in 2021. That code section now makes it a crime for protesters to, “without lawful authority or color of authority, obstructs any street, sidewalk, highway, or other public way, with the intent to prevent or hinder its lawful use by others.” It’s intended to criminalize protest marches that receive approval from local officials in advance. The changes were passed by Republicans in the Iowa Legislature in response to the 2020 street protest that followed the murder of George Floyd.
The bill contained other new restrictions on public protests, expanded some police powers and created new legal protections for drivers who hit protesters marching the streets with their vehicles.
The pre-trial discussion also focused on what the case meant for transgender people in Iowa, given the legislation targeting transgender Iowans Reynolds has signed into law in recent years. The protest was in response to a conservative student group hosting a speech by an anti-transgender activist at the IMU. Speaking to Little Village earlier this year, McGovern said they found it highly suspect that all seven people who were charged with crimes after the protest identify as transgender.
In addition to Disorderly Conduct, McGovern was also charged with Interference with Official Acts. The first charge is a serious misdemeanor, the second is a simple misdemeanor. If convicted of both, McGovern could have faced a maximum penalty of 13 months in jail and $3,410 in fines.
In the end, it’s likely the Johnson County Attorney’s Office’s failure during the two-day trial to produce clear evidence that McGovern committed any offenses, rather than broader constitutional or social considerations, that led to the speedy acquittal.
Some facts were never in dispute. Tara McGovern attended the protest at the IMU on Oct. 16. That’s no surprise to anyone acquainted with McGovern.
Since moving to Iowa City in the mid-1990s to attend the University of Iowa, McGovern has made a name for themself on the Iowa music scene as an accomplished fiddler, as well as an activist for social justice causes. On the witness stand, McGovern explained they wanted to attend the protest “as a trans person, as the mother of a trans person and as someone who loves a lot of trans people.”
Also not in dispute was that McGovern joined more than 100 other protesters who were already using the marked crosswalks to walk in a continuous circle across Madison and Jefferson Street in front of the IMU shortly before the event they were protesting ended, but before police officers ordered protesters to clear one part of the streets to allow vehicles to pass. McGovern is clearly visible in the video footage the University of Iowa Police Department (UIPD) presented at trial. They were carrying a Progress Pride flag over one shoulder and a trans rights flag over the other.
On the witness stand, McGovern explained they didn’t have enough time to make a sign for the protest, so they just grabbed the two flags they fly at home.
“This is a protest, it’s not illegal,” McGovern can be heard saying in a snippet of UIPD body cam footage the prosecution played in court. To attempt to prove it was illegal, Assistant County Attorney Jacob Behnke called three witnesses. All three were UIPD officers.
UIPD Detective Adam Herrig took the witness stand to confirm that the protesters circling along the crosswalks on Oct. 16 brought traffic to a standstill, which lasted for about 20 minutes before police took action to clear a lane for vehicles to use. Herrig said that as far as he was aware, he never saw McGovern that evening.
UIPD Lt. Travis Tyrrell did have two interactions with McGovern during the protest, both of which were captured on his body cam. The first encounter was McGovern telling Tyrell that the protesters weren’t breaking the law, and Tyrell responded that they were. McGovern also told Tyrell to “take your hands off” the protesters he was pushing as he was attempting to clear the street, and that police officers should only touch people if they are arresting them.
The second happened when McGovern had moved both flags to one shoulder and was holding up their phone to shoot videos of Tyrell and other UIPD officers engaged in what McGovern characterized as violent and aggressive grabbing and shoving of protesters. While testifying, Tyrell denied UIPD officers did anything violent or aggressive, saying they only used “soft” tactics to move protesters out of the way.
One of the protesters Tyrell put a hand on was McGovern, as body cam footage of the second interaction showed. Under cross examination by McGovern’s attorney Gina Messamer, Tyrell described his physical encounter with McGovern as incidental and unintentional, saying that McGovern had brushed against his outstretched arm when they approached him while videoing the officers. According to McGovern’s testimony, Tyrell had grabbed the wrist of the hand holding the phone, as they were videoing him.
A glimpse of that physical encounter was caught by Tyrell’s body cam. When the footage was slowed down, it appeared to show Tyrell releasing McGovern’s wrist from his grip, as McGovern tells him to take his hands off them. Other protesters can be heard telling Tyrell to take his hands off McGovern.
All the body cam footage introduced showed McGovern standing and walking in the area UIPD had told protesters to go to. Responding to questions by Messamer, Tyrell agreed that during his interactions with McGovern, McGovern wasn’t in the part of the street protesters had been told to vacate.
The body cam footage introduced by the prosecution showed both interactions between Tyrell and McGovern lasted less than 30 seconds.
The Interference with Official Acts charge was based on the second interaction. After the prosecution rested its case on Wednesday, Messamer asked Judge Jason Burns for a directed verdict, dismissing both charges.
As Burns explained for the benefit of the people observing the trial, in evaluating such requests he is legally bound to view the evidence and arguments of the prosecution in the most favorable possible light. But even so, he seemed uncertain exactly what action of McGovern’s could be considered interference. Burns gave assistant county attorney Behinke until the start of court to explain the basis of the interference charge.
On Thursday morning before the jury was seated, Behinke presented his argument. According to the Johnson County Attorney’s Office, McGovern was within their rights to speak to Tyrell and to take videos of the officers, but by coming close enough to Tyrell that he could grab their wrist, McGovern had prevented Tyrell from paying attention to other protesters. Even though that interaction lasted only seconds, that was enough to constitute Interference with Official Acts, Behinke said.
Judge Burns appeared skeptical, but said that as long as there was any factual question to resolve, the charge had to go to the jury. The judge rejected the motion for a directed verdict.
While he was being cross examined on Wednesday, Tyrell confirmed that he attached no importance to the two interactions at the time they occurred. Neither is mentioned in the report he prepared immediately after the protest. McGovern isn’t mentioned in the report at all. It was only weeks later that he was informed by UIPD Detective Ian Mallory that McGovern was on the list of people to be arrested for their actions at the protest. Mallory, who was in charge of the investigation related to the protest, ordered Tyrell to prepare a second report focused on McGovern.
Mallory was the prosecution’s third and final witness. He wasn’t at the protest on Oct. 16, but he was remotely operating a UIPD surveillance camera located next to the IMU. Messamer asked Mallory to explain how McGovern was selected to be arrested when they weren’t mention in Tyrell’s first report.
According to Mallory, when UIPD officers and members of the Johnson County Attorney’s Office were reviewing video footage of the Oct. 16 protest, someone on the county attorney’s staff recognized McGovern.
Mallory knew McGovern’s name, because as part of his duties he monitors social media for possible threats or potential disruptions on campus. In 2021, Mallory had monitored McGovern’s social media.
It wasn’t anything McGovern posted about UI that attracted Mallory’s attention in 2021. It was McGovern attending a Johnson County Board of Supervisors meeting to speak out against the county buying a new armored vehicle for the sheriff’s department.
Mallory said that after the meeting when the county attorney staff member pointed out McGovern, he determined McGovern’s married name was their legal name, and Tara Dutcher was added to the list of people to be arrested.
In all, seven people have been arrested for participating in the Oct. 16 protest. No one was arrested during the protest. The first arrests didn’t happen until the following month. Mallory explained the delay by saying it took time to identify the suspects to be arrested, and because he took a vacation shortly after the investigation began. All seven were charged with the same two crimes.
In December, Johnson County Attorney Rachel Zimmermann-Smith offered plea deals to the seven. In exchange for pleading guilty to the lesser charge of interference with official acts, the more serious disorderly conduct charge would be dropped.
McGovern is the only one who didn’t take the deal.
“I don’t want to plead guilty, because I feel I was within my constitutional rights to protest,” McGovern told Little Village in January.
McGovern said she understood why their fellow protesters took the plea deals, and supported those decisions, but felt that their own case needed to go trial to counter, or at least highlight, what McGovern sees as a growing hostility to peaceful protests by Iowa officials.
Prosecutor Behinke structured his final argument to the jury as a 22-slide PowerPoint presentation. It allowed him to focus on the exact wording of both laws he alleged McGovern violated.
In her closing argument, Messamer discussed the rights afforded to peaceful protesters and the weakness of the evidence presented by the prosecution.
In his brief rebuttal to Messamer’s closing statement, Behinke returned to the exact wording of the statues. He argued that the fact that McGovern had walked across the street on Oct. 16 without prior authorization from the police meant that the jury must find McGovern guilty.
The jury then retired to consider McGovern’s testimony and the evidence presented by the county attorney. All the prosecution’s evidence came from its three witnesses. One was a UIPD officer who wasn’t at the scene of the protest on Oct. 16. Another was a UIPD officer who was at the scene but never saw McGovern. The third was a UIPD officer who had two brief interactions with McGovern but didn’t think either was important enough to include in his report on the protest. The body cam footage of those two interactions showed McGovern standing and marching in the area police told protesters they could stand and march in.
The jury got the case shortly before noon on Thursday. The not guilty verdicts were announced at approximately 3:30 p.m.
“We respect the jury’s decision and thank them for their service,” Johnson County Attorney Rachel Zimmerman-Smith told the Gazette after the verdicts were announced. “The defendant got a fair trial and, regardless of the outcome, that is always the ultimate goal.”
This was the first time the 45-year-old McGovern had ever been arrested. Despite feeling apprehensive as the court date approached, McGovern appeared to be in good spirits throughout the trial. The public area of the courtroom was packed with supporters of McGovern both days. So many supporters showed up that the trial had to be moved to a larger courtroom prior to the beginning of jury selection.
Speaking to Little Village after the jury began its deliberations, McGovern said they felt “incredible pride” in how their attorney had handled the case from the beginning through the closing arguments. “I feel like Gina is a brilliant attorney who cares a lot about the law,” McGovern said. “I have less hopeful things to say about the law in general, but it does make me feel hopeful that there are attorneys like Gina, and, frankly, that there are judges like Judge Burns, who took the time to educate the public about the law during the trial.”
“My secondary feeling is that I’ve lost six months of my life to this.”
McGovern explained their oldest son is getting ready to leave for college, and that and other life events had been overshadowed by the charges that had been pending But McGovern said they weren’t the only one who lost something because of the Johnson County Attorney’s decision to charge her with two crimes for participating in a protest.
“I also feel the county was robbed of time and resources, while I personally was robbed of time and resources by having to go through this,” they said.
MCGOVERN ACQUITTED – Tara Dutcher, who goes by Tara McGovern, has been acquitted of both charges. Here at the dog park, their attorney just called with the news. pic.twitter.com/iZx7BsBPZd
— Zachary Oren Smith (@ZacharyOS) March 13, 2024
