Jurisprudence

What Will Jurors Make of Charlottesville Trial Defendants’ Incoherent Defense?

White supremacist demonstrators march with tiki torchers the night before the Unite the Right rally in Charlottesville, VA in Aug 2017.
Demonstrators march with tiki torchers the night before the Unite the Right rally in Charlottesville, VA in Aug 2017. Reuters

The jury in Sines v. Kessler, the landmark civil lawsuit against the organizers of the 2017 Unite the Right rally in Charlottesville, began its second day of deliberations on Monday. After four long weeks in court, the jury is expected to return a verdict before Thanksgiving. Many who listened to the 16 days of testimony and argument expect that defendants will be found liable for forming a conspiracy to commit racial violence. The emotional and traumatizing testimony by both the plaintiffs and the defendants provides only a glimpse into the horrors the plaintiffs experienced in August 2017, when the defendants converged on Charlottesville. But juries can surprise even the most impartial viewer, and last Friday’s acquittal of Kyle Rittenhouse, who killed two people and wounded another during an anti-racist protest last year, shows that justice in the courts is not always the justice expected.

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The defendants spent most of the trial fighting from their back foot. Of the 14 days of witness testimony, the plaintiffs’ case accounted for roughly 13. The defense of those who organized Unite the Right, now a disunified amalgam of essentially seven different factions, brought only two non-party witnesses and had no expert testimony to support their claims. Instead, they depended on a hodge-podge strategy of trying to dazzle the jury with arguments about free speech, self-defense, and politics. In several instances, the defendants attacked each other, including an awkward exchange between Richard Spencer and his co-defendant Jason Kessler. “When did you determine I was a sociopathic narcissist?” Spencer asked. Kessler responded with a venom-laced invective, telling Spencer, “you were just despicable to everyone you came into contact with, like a robot, like a serial killer.”

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Ironically, given that the event was called “Unite the Right,” the several defendants seemed to have no coherent strategy. When the defendants weren’t pointing fingers at each other, they were spending their time arguing their case in the court of popular opinion. Defendants relied on the type of arguments more suitable for a heated Twitter debate than a structured defense dignified for a court of law. Spencer and his co-defendant Christopher Cantwell, who are both representing themselves, tried at various points in their closing arguments to make this a case about the legality of hate speech.

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Defendants repeatedly attempted to frame their comments about violence leading up to the rally as an issue of permitted speech under the First Amendment. Their defense hinged on the fact that Kessler had gotten a permit for the rally, suggesting that the violence was merely a byproduct of others trying to infringe upon their right to assemble. Josh Smith, counsel for defendants Matthew Heimbach and Matthew Parrott, former leaders of the Traditionalist Worker Party, even went so far as to openly allege that the plaintiffs had engaged in a conspiracy to deprive his clients of their civil rights by obstructing passage into the park. Smith provided no evidence linking the plaintiffs to such actions.

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While distancing themselves from James Fields, who was convicted of murdering Heather Heyer after plowing into protesters with his car, the defendants each tried to frame any violence as a matter of self-defense. If not for the mysterious antifa and the incompetent police, there would have been no violence at all, they claimed. Defendants argued that at similar rallies, such as the one in Pikeville, Kentucky earlier in 2017, no violence occurred after the police kept warring parties well-separated. (This argument resonates particularly well with Kessler, who is appealing a lawsuit alleging Charlottesville police failed to protect his right to hold the rally, which was thrown out last year by the very same court.)

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Many of the hours spent by the defense were consumed by the fabulous conspiracy theories that Cantwell has been chasing for years. He badgered nearly every plaintiff in cross-examination, asking them nonsensical questions about the color of bandanas worn by unnamed bystanders, whether people were wearing helmets, and whether or not they knew Emily Gorcenski (one of the authors of this piece). In this conspiracy case, Cantwell believes in an entirely different kind of conspiracy theory: that the lawsuit is the product of a Jewish plot in which the plaintiffs worked with antifa to sue him.

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Cantwell’s arguments for his conspiracy theory are as bizarre as his defense strategy. He has implied that the plaintiffs conspired with Gorcenski to capture their presence at the rally on tape, so it could be used as part of a pre-planned lawsuit against him and the other rally organizers. “Isn’t it strange that the only faces shown belong to you and your co-defendant, Natalie Romero?” Cantwell asked plaintiff Devin Willis while showing a livestream of the tiki torch rally shot by Gorcenski. In addition, Cantwell’s attempts at contradicting Romero’s testimony by showing graphic footage of her attack backfired. Cantwell asked Romero to identify anyone caught on video hitting her. “Someone is starting to hit us, then another one. It looks like you were literally… is that you?” She said, referring to Cantwell.

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When defendants weren’t exposing the jury to slow motion replays of the needless violence they themselves committed, they were trying to dazzle the jury with nuanced discussions of white nationalist politics. Heimbach, former leader of the Traditionalist Worker Party, painfully explained the media strategy of American Nazi Party founder, George Lincoln Rockwell, known as the “Rockwell Pivot,” to the jury. Spencer used his opportunity to defend himself to condescendingly describe metaphysics and metapolitics to the jury. Spencer tried to argue, in a rant suffused with antisemitism, that like Jesus he was being subjected to an ancient form of punishment known as “scapegoating” before Judge Norman K. Moon cut him off. Spencer lashed out, “you can’t cut me off for using poetry!”

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Their antics stood in direct contrast to the Plaintiffs’ two academic expert witnesses. Dr. Peter Simi, a sociologist at Chapman University testified about the “front stage” and “back stage” behavior of the white nationalist movement, the ways they layer irony to mask sincere invocations to violence, and the reliance on the movement’s use of “optics” to attempt to distance themselves from the very same violence they seek privately to foment. Perhaps the highlight of the trial was the questioning of Dr. Deborah Lipstadt, an expert on Holocaust studies at Emory University, who has authored several books on the topic of Holocaust denialism. Dr. Lipstadt testified to the symbolism used by the alt-right and how neo-Nazis seek to continue Adolf Hitler’s mission to exterminate Jews. Only Cantwell was foolish enough to significantly cross-examine Lipstadt, asking her at one point if the Holocaust was an easy target for jokes about Jews. She parried his attack easily, stating, “I find it hard to believe that genocide… is a good topic for jokes at all.”

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Though the plaintiffs put on a remarkable case against a fragmented and self-sabotaging defense, it was far from a perfect effort. Plaintiffs’ various counsel spent considerable time impeaching the defendants over discrepancies between their deposition testimony and their testimony on the stand, an important but ultimately wearying effort that was winning no favors from Judge Moon, who admonished them several times to keep the case moving.
Moreover, the plaintiffs failed to call any material witnesses to the violence aside from the plaintiffs themselves. This gave the defense plenty of openings to introduce just enough inkling of doubt as to whether the defendants’ violence could have been defensive in nature. Judge Moon inexplicably allowed the defense to call a witness, League of the South member Richard Hamblen, who attempted to claim that he was attacked during the rally by a woman not party to the case. And over objections, Moon allowed testimony claiming that Deandre Harris, whose brutal beating by six white supremscists in 2017 was caught on video, assaulted a member of League of the South, but prevented the plaintiffs from introducing testimony that Harris was in fact acquitted of this charge.

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As the jury was finishing its first day of deliberations, 12 jurors in Wisconsin acquitted Rittenhouse on all counts. The Rittenhouse verdict has raised critical questions about the threat armed vigilantes pose to American’s First Amendment rights. Against this backdrop, Sines v. Kessler is more than a case about conspiracy to commit violence in Charlottesville four years ago. The trial, and the impending verdict, is a reflection of our present zeitgeist. It is a question of whether the violence of white supremacy becomes unimpeachable when faced with even the slightest opposition. The legal avenues for combatting and punishing such violence are woefully inadequate as the Rittenhouse verdict shows.

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Now, eleven ordinary people in Charlottesville will have to decide if the neo-Nazis and white supremacists who have used the trial to spew more hate will be found civilly liable. One question looms: What will it mean if neo-Nazis and white supremacists can call for a race war, plan for a race war, and then go out onto the streets in an attempt to start that race war — without any fear of consequence?

[Ethical disclosure: Emily Gorcenski was attacked by and pressed charges against Chris Cantwell in a case related to the events in question. A related civil lawsuit between Cantwell and Gorcenski was settled with a mutual release of claims in 2018.]

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