In the first days of jury selection this week in Sines v. Kessler, the civil case filed against the organizers of the “Unite the Right” rally in Charlottesville, Virginia, in 2017, nearly every populist conspiracy theory funneled through conservative social media directly into the right-wing media ecosystem made an appearance. Defendants in the case have indeed come to “unite the right,” viewing nearly every aspect of jury selection through their own partisan lens. In the intervening years since the case was filed, the right has birthed one right-wing boogeyman after another. They have battled for public attention with their ouroboros of populist conspiracy theories designed to keep and hold media attention in a society riven by multiple crises.
Plaintiffs have built their case on an unusually deep trove of evidence. In the weeks after the Unite the Right rally that devolved into chaos and violence, thousands of private messages between Unite the Right organizers and attendees were leaked and published. These messages reveal detailed plans about preparing for violence, improvising weapons, and even exploring the legality of running down protesters with cars. The evidence has been damning. Leaked messages and videos have led to federal and state criminal indictments and military courts-martial. One of the defendants in Sines, Robert “Azzmador” Ray, went into hiding after a felony warrant was issued for him in Virginia for his alleged conduct during the rally. He remains a fugitive.
In response, the defendants have built a strategy around pointing fingers at whatever right-wing boogeyman is most convenient. They have claimed, at various times, that local and state police conspired with antifa to allow violence to occur, that plaintiffs engaged in a conspiracy to commit racial violence against white people, and, bizarrely, that the KKK Act only bars conspiracies to commit violence against Black people and Republicans.
To this end, the defense has even tried to leverage the ongoing pandemic for their cause. During a pretrial hearing, defendant Christopher Cantwell, arguing on his own behalf, urged that jurors who refused to comply with court requirements to wear a mask properly and at all times should not be excluded. “The mask issue has become a politicized point,” argued Cantwell, who repeatedly claimed that excluding anti-maskers was a backdoor way to bias against Fox News viewers. This included Juror No. 160, who bizarrely claimed in his questionnaire that complying with COVID regulations would be a violation of his Christian beliefs, and Juror No. 175, a teacher with an autoimmune disorder who indicated on her questionnaire that she was a regular viewer of the network. They were both eventually struck for cause.
While probing jurors’ responses during voir dire, Judge Norman K. Moon took the unusual step, possibly because of the presence of multiple pro se defendants, of having counsel pass questions to him to ask jurors. In one case, a juror was asked about his relative lack of concern about racism against white people in America. When he responded that he believed white people had particular advantages and didn’t face significant prejudice, Josh Smith, the counsel for the now-defunct Traditionalist Worker Party, burst out, “This is classical critical race theory! This is an anti-white theory being taught—” before being cut off by Moon.
Antifa and Black Lives Matter continue to loom large in this case. All jurors were asked to rate on a scale of 1 to 5 how concerned they are about the amount of prejudice against certain groups of people, including “racism against white/Caucasian people.” Questions 33 and 34 ask about potential jurors’ familiarity with the Black Lives Matter movement and antifa, respectively. Neither Black Lives Matter nor antifa is a party to the case, nor do any plaintiffs appear to claim membership to any such groups. One plaintiff, the Rev. Seth Wispelwey, tweeted, “Jesus is antifa,” but Jesus, too, is not a party to the case.
Juror No. 274 indicated in his questionnaire that he believed that antifa were “terrorists,” a popular refrain in 2020 when protests against the police murder of George Floyd were engulfing the nation. During the 2020 U.S. presidential campaign, Donald Trump postured aggressively at naming “ANTIFA” a terrorist organization, even while FBI Director Christopher Wray testified that antifa represents a movement and an ideology, not a particular group. Google searches for the term “antifa” peaked in the United States on Jan. 7, a day after pro-Trump demonstrators stormed the Capitol, leaving five dead during the “Stop the Steal” demonstration. And conspiracy theories suggesting that the insurrection was the result of an anti-fascist false-flag operation to make Trump supporters look bad flooded right-wing social media.
What is Juror No. 274’s evidence that antifa is a terrorist organization? When questioned, he explained that he hadn’t seen any evidence, but he had watched the news the night of the attack and saw then–Virginia Gov. Terry McAuliffe condemning the right for the attack. When plaintiffs moved to strike the juror for cause, pro se defendant Richard Spencer responded that “these are opinions shared by millions of Americans, who probably sourced them from Fox News.” Juror No. 274 was selected.
Spencer isn’t wrong in his assessment. Defendants sought to seat a partisan jury, one whose viewpoints have been conditioned by years of right-wing media saturation. In one particularly strange incident, both he and Cantwell argued with their co-defendants’ counsel about approving a juror who stated he was “biased against the defense” and believed that the defendants are “evil.” The same juror also indicated that he liked Republican politician Ben Carson. “I have no idea what these two think they are doing,” said James Kolenich, counsel for lead defendant Jason Kessler.
However, the defense’s general strategy is clear. They are attempting to position themselves as victims: victims of antifa, victims of anti-white racism, and victims of “cancel culture” by the left. They seek a jury vulnerable to anxieties about the “great replacement” and the declining numerical dominance of white people in America. They will be arguing a different case in a different court: the case for white supremacy, fought in the court of public opinion. Defendants have been successful in striking potential juror after potential juror with preformed beliefs that neo-Nazis are evil or that white supremacy is bad.
At the same time, the defense’s litmus test for impartiality has favored jurors with preformed beliefs about antifa or personal beliefs about social ethics. Juror No. 250 was a civics teacher who told his class about the case and his potential duties as a juror. He wrote on his questionnaire that he felt the defendants were “heinous,” but that he would be able to set aside those beliefs if the evidence supported it. He was struck for cause. Meanwhile, Moon allowed Juror No. 226 to pass despite unfavorable beliefs about Black Lives Matter, because, in the juror’s words, “all lives matter.” Never mind that this phrase is a white supremacist–cum-populist slogan.
Moon’s action highlights one of the most glaring issues with the jury selection process. By insisting on treating jurors’ responses individually and without context, he has turned well-established concepts of racism on their head. Instead of attending to the systemic and structural aspects of racism, Moon’s feigned impartiality makes it seem as if racism ceases to exist so long as people don’t hold individually racist opinions. Of course, 400 years of American history have shown us otherwise. But in Moon’s courtroom, “all lives matter” is seen as an acceptable position while not believing in “anti-white racism” is considered unacceptable.
On Monday, the plaintiffs filed a Batson motion in an attempt to reseat Juror No. 197, a Black man whom plaintiffs claim was dismissed based on his race (you are allowed to strike jurors without a reason, but not if it is a pretext for striking Black jurors). Kolenich, lead counsel for the defense, argued “inartfully,” in the words of the court, that this particular Black juror was struck not only because of his race, but because of his demeanor. Cantwell told the judge that in his notes he referred to the juror as an “anti-white race nut.” Despite this, Moon denied the plaintiffs’ motion, a sign of the difficulties faced when seeking justice for racist violence in a district where massive resistance, the state-sponsored effort to refuse racial integration of public schools, is still a living memory.
Opening statements had a bizarre start Thursday morning. But the three-day jury selection gave us an insight into the stakes of the case and the defense’s overall legal strategy. In addition, the jury selection process gave us insight into how the judge intends to rule on issues pertaining to race and racism. For their part, plaintiffs revealed very little of their plans. They can rely on the troves of evidence, much of which was gathered and published by anti-fascist activists over the past four years. In this light, the defense strategy makes some sense: The plaintiffs rely on the legwork of anti-fascist activists who doggedly documented the alt-right over the last half-decade. So the defense believes themselves to be under attack by antifa’s lawfare division. But antifa is not a party in this case.
Like masks, vaccines, and so many other battlefields in our contemporary culture war, Sines v. Kessler will ultimately be a competition between actual and overwhelming evidence on the one hand and the fragile psyche of a declining social majority on the other.
Disclosure: Emily Gorcenski pressed charges against Chris Cantwell following an attack during the rally in 2017. Both parties settled a related civil lawsuit with a mutual release of claims in 2018.