In his new book, Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law, Leftist legal celebrity Alan Dershowitz wrote about his concern that lawyers are refusing to accept controversial clients accused of crimes for fear of being blackballed, or worse, prosecuted themselves [Alan Dershowitz says lawyers are telling him they won’t defend Trump because they don’t want to be ostracized or ’canceled,’ by Cheryl Teh, Business Insider, August 30, 2022]. Well, hats off to Terrell N. Roberts III (right), who is not only defending J6 Insurrection Hoax defendants, but also representing the family of Ashli Babbitt, the peaceful protester shot to death by what was ultimately revealed to be a black Capitol Police officer during the protest.
But Roberts has another important client: August Invictus, a Catholic lawyer who attended the Unite The Right Rally in Charlottesville, Virginia, on August 11, 2017, and was indicted in April—six years after the protest—on a charge that he carried a torch. Even better, Roberts has filed a remarkably powerful motion to dismiss the politically motivated prosecutor’s claim: The statute under which Invictus was indicted doesn’t apply to his perfectly legal protest.
After the rally on August 17, and two others in which peaceful protesters carried torches—an old American tradition—area communists wanted Charlottesville’s then-Commonwealth’s Attorney David Chapman to prosecute the protesters under a 2002 statute that forbids “burning an object” to frighten or intimidate:
Any person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.
But Chapman declined to charge protesters under the statute because the protest didn’t meet the threshold for prosecution, as he explained in a memorandum to City Manager Maurice Jones and Police Chief Al Thomas.
“There is a threshold problem with the statute,” he said:
The statute refers to ‘burn an object.’ The question could arise—and would in criminal law—as to whether carrying a burning torch falls within the definitional scope of burning an object. That alone could prevent a prosecution.
[Charges won’t be filed over torch rally, by Chris Saurez, Daily Progress, October 11, 2017
Albemarle County’s prosecutor Robert Tracci said the same thing two years later, citing Chapman’s memo [Burning questions: Why hasn’t the county prosecuted the torch marchers? / Amend Virginia’s burning object statute, by Robert Tracci, C’Ville, September 11, 2019].
Because prosecuting protesters with the statute was legally problematic, Tracci recommended that the General Assembly amend the statute to cover torch marches.
But legislators failed to do so.
Invictus’ lawyer Roberts has filed a motion to dismiss the charges filed under the deficient statute by Jim Hingeley, Tracci’s Soros-backed successor.
Click screenshot or here to go to document.
Hingeley not only charged Invictus but also is likewise pursuing other protestors with the zeal of Inspector Javert chasing Jean Valjean [Soros-Funded Prosecutor Pushes Dubious Tiki Torch Prosecutions for Political Reasons, by Joseph Jordan and Glenn Allen, Free Expression Foundation, May 1, 2023].
Under normal circumstances, a judge would determine whether charging the protesters under the statues is permissible. This could go either way depending on his or her predisposition. (The judge in this case, however, is Cheryl Higgins, who dismissed politically motivated charges against me five years ago [Charlottesville protest organizer’s perjury charge dismissed, Associated Press, March 21, 2018]).
The judge will rule on Roberts’ motion as well, but not without consulting the Virginia General Assembly itself, at least if she carefully reads Roberts’ motion. As he masterfully demonstrates, we have an exceedingly rare example of legislators’ explicitly addressing whether a statute prohibits specified conduct.
Roberts quoted Gunn v. Commonwealth of Virginia to explain what the state’s top court wrote about how laws must be applied:
[C]ourts are nevertheless bound by the plain meaning of unambiguous statutory language and may not assign a construction that amounts to a holding that the General Assembly did not mean what it actually has stated.
Then Roberts explained why the statute’s plain language does not permit the charge against Invictus. “The plain and natural meaning of the words ‘burns an object’ does not encompass merely holding a tiki torch with an open flame without using it to burn an object,” Roberts argued. Matches and candles produce open flames, he continued, but “no sensible person would say that the flame burns an object until it is actually used to do so.”
Thus, Invictus’ protest was legal and “the indictment must be dismissed.”
Then Roberts delivered what should be a knockout blow to Hingeley’s politically motivated indictment. Roberts basically said, Listen to the General Assembly:
After the events in this case, there was an effort to amend the statute to include such conduct (as occurred on August 11). In 2019, HB 2010 was introduced to the General Assembly to amend § 18.2-423.01B. The bill read as follows:
Any person who, with intent of intimidating any person or group of persons, burns an object or uses any flame producing torch or other flame producing instrument or device on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear of death or apprehension of death or bodily injury is guilty of a class 6 felony.
The effort to amend the statute did not pass.
Legislators rejected the new italicized line.
The Motion to Dismiss is worth reading in its entirety. It is an exceptionally rare and effective demonstration that legislators’ intent was not to include simply carrying a lit candle or tiki torch during a Constitutionally protected protest.
“Burning an object” means burning a cross on someone’s front lawn or some other obviously illegal activity.
If Roberts prevails on this point, the other tiki torch lawfare victims may well be released.
I don’t see how the Albemarle County District Attorney’s Office gets around this, but one can never predict what judges will do.
“I feel pretty good,” Roberts told the city Daily Progress after Invictus’ post-arrest bail hearing on July 25 in Albemarle County Circuit Court. “He didn’t intend to harm anybody here” [Goat-sacrificing, warmongering Florida man indicted for 2017 torch march, by Hawes Spencer, Daily Progress, July 26, 2023].
Note the click-bait headline—despite “journalist” Spencer’s including that Invictus now attends daily Catholic Mass. How about Catholic convert Dad, daily Mass attendee indicted for 2017 torch march!
A personal note: I have not commented on these matters until now, not because I didn’t care, but out of an abundance of caution. I suspected that I might also be a victim of these tiki-torch sealed indictments, which are apparently very numerous.
This is what used to be called (when aimed at Leftists) a “chilling effect.”
But having confirmed that I am not the target of one of these indictments, I have decided the time has come to speak out.
Invictus, of course, isn’t the only target. Individuals whom I do not know and sought help from me were arrested. They have fared poorly, unfortunately, and some have pleaded guilty because of legal costs rather than stand trial.
Not so with Invictus. The hearing on the motion to dismiss is scheduled for September 27. A three-day jury trial is set for March 20, 2024.
I urge you to offer him your support, encouragement and prayers. He is the man in the arena and the avatar for the rights of many, many others. [Invictus on Twitter]
Jason Kessler (email him) is a journalist and civil rights activist. He was the permit holder for the 2017 Unite The Right Charlottesville rally, which was notoriously mugged by elected, uniformed, judicial, paramilitary and media Democrats. He has had bylines in VDARE.com, Daily Caller (which has deleted his archive in a fit of cowardice), and the now-defunct GotNews as well as on his own site JasonKessler.us. Follow him on Telegram, Gab, and Twitter. Subscribe to his news and opinion show ‘Happenings’ on Odysee and Bitchute.