Four years and millions of dollars later, a team of politically connected lawyers bankrolled by the Anti-Defamation League [ADL Announces Support for IFA’s Lawsuit Against Neo-Nazis, White Supremacists, and Hate Groups Responsible for Charlottesville Violence, ADL.org, November 19, 2019] and Amy Spitalnick’s laughably misnamed Integrity First have finally gotten to court. Note that this a private prosecution because law enforcement authorities didn’t think the case was strong enough. In a classic example of lawfare, wealthy Leftists are trying to buy injustice—specifically, by beating down poorer political enemies to deprive them of their First Amendment speech protections.
During their opening statements in Sines v. Kessler, crisis management attorney Roberta Kaplan and former federal prosecutor Karen Dunn cut priggish figures, playing audio and video of the defendants saying racial slurs or marching with tiki torches, which in their minds demonstrates their propensity to violence.
The main legal theory underpinning the Charlottesville lawsuit: the grab bag of organizers, speakers and attendees of the August 2017 Unite the Right rally are guilty of violating the Third Enforcement Act, also known as the Ku Klux Klan Act of 1871.
The Reconstruction law was passed under President Ulysses S. Grant with the intention of shutting down Southern resistance in the aftermath of the Civil War. The law allowed federal troops and prosecutors to round up citizens suspected of Klan sympathies or membership without having to worry about pesky Constitutional questions like due process or habeas corpus.
Sines v. Kessler is unique in that it seeks to civilly apply a law seldom used in almost a century and a half due to its flagrantly unconstitutional nature to 21st century nationalists who gathered to protest attacks on the Robert E. Lee statue in a Charlottesville public park.
In truth, both supporters and critics of Sines v. Kessler have admitted that it is a SLAPP (Strategic Lawsuit Against Public Participation) intended to introduce significant financial risk to silence people who politically disagree with them [Roberta Kaplan is crushing white supremacists in court — and she wants America to start taking them more seriously, by Laura E. Adkins, Jewish Telegraph Agency, January 21, 2021].
Kaplan is not merely interested in silencing white nationalists and Trump-supporters. In August, the so-called public interest lawyer had to resign from her anti-sexual harassment group Time’s Up for her work in trying to intimidate victims of Governor Andrew Cuomo…who will be arrested, in a subdued, upper-class way, for misdemeanor sexual touching soon: Cuomo Won't Be Arrested or Paraded for Cameras After Sex Crime Charge, Sheriff Says, nbcnewyork.com, October 29, 2021.
Though she presents herself and her plaintiffs in Sines v. Kessler as victims, heroes and underdogs, it’s clear that Kaplan’s moral compass is more tribal and power-affirming than it is principled and populist.
According to opening remarks by Kaplan and Dunn, defendants Jason Kessler, Richard Spencer, Elliot Klein, Christopher Cantwell, Matthew Parrott and numerous others—many of whom have never communicated or been in the same room until this trial—used secret codewords and incitement to premeditate the scuffles that suddenly broke out when torch carrying demonstrators encountered a group of Antifa supporters on August 11th and James Fields' (who defendants have already demonstrated they had never met or spoken to) driving into a crowd of Leftist rioters marching down the middle of the street after the police had declared a state of emergency.
Dunn and Kaplan’s presentation relied entirely on instances of defendants using racial slurs or engaging in hyperbole. They are forced to do this because, despite spending four years engaging in the highly invasive discovery efforts enabled by Judge Norman Moon, no evidence of a violent conspiracy has been uncovered. They also lean on Moon’s adverse inferences judgement against multiple defendants, some of whom have simply vanished. Many of the defendants no longer possessed email accounts, cellphones and even Christmas cards sought during discovery sometimes two or three years after August 2017. Some deposed personalities pled the fifth during interrogations. Dunn and Kaplan contend that the lack of evidence for their allegations is the evidence for guilt.
They further tried to focus on post-hoc comments made by a few rally organizers showing a lack of sympathy for Heather Heyer and other activists in communist groups as proof that this outcome—a sudden car crash that was impossible to predict—was in fact pre-planned.
But the secret conspiracy allegation took a hit when indigent pro se defendant Christopher Cantwell gave a memorable performance [Transcript] showing off the extent of his transparency.
Cantwell, knowing that the case against him hinges on the plaintiffs characterizing him as an unapologetic ‘racist,’ let it all hang loose by quoting himself using racial slurs and admitting that his big mouth regularly violates taboos and gets him in trouble. He owned up to the fact that he is currently incarcerated for making nasty comments during a dispute with internet trolls, showing that discretion is not his strong suit.
Richard Spencer, another pro se defendant, sought to counter plaintiffs’ “good vs evil” arguments by stressing that his political opinions are not what is on trial. He denies being part of any conspiracy, civil or criminal, and pointed out that he has not been held criminally liable for the events that took place at Unite The Right (neither has any of the other defendants). He painstakingly stressed that he was merely an invited speaker, not an organizer, and had little to no contact with the overwhelming majority of his fellow defendants prior to Charlottesville. He went through great efforts in appealing to the jury to judge him separately from all the others on trial.
This mirrored Kessler and Identity Evropa attorney James Kolenich’s strategy of abandoning their codefendants. Kolenich's goal appears to be to distance his client from those pejoratively described by plaintiffs as neo-Nazis. The fact that defendants accused of a widespread conspiracy cannot even conspire to mount a unified legal defense is perhaps the most striking proof of how fatuous the plaintiffs’ narrative is.
Other attorneys made more generic legal arguments, with the exception of Jeff Schoep's lawyer Edward ReBrook, who introduced himself as a “vaccinated Democrat” and ranted incessantly on how inhuman and evil his Nazi clients were. The speech was split 80–20 between polemic against the very people he is representing, and included positive references to the Tarantino snuff film Inglourious Basterds and legal arguments in their defense. Significantly, ReBrook was scolded and interrupted by Judge Moon more than the pro se defendants.
So far only two plaintiffs have taken the stand: Natalie Romero of the pro–Open Borders agitation group Movimiento Cosecha and another nonprofit employee, Devin Willis, who at the time the Charlottesville protests was an organizer for the University of Virginia’s chapter of the Black Student Alliance.
Her testimony focused primarily on the injuries she sustained after the car crash as a participant in the crowd of leftist counter-protesters, along with her non-white racial identity.
When cross-examined, Romero was not compelling. When asked to explain how defendant Jason Kessler was responsible for her injuries, Romero muttered: “He gave speeches.”
It is public knowledge that this witness is a political actor, including until recently in a paid capacity, yet under oath she was eager to distance herself from her activism. The defense repeatedly caught her in contradictions and made her appear misleading.
When questioned about her political persuasion, Romero stated that, despite attending a highly political rally in Charlottesville, she did not follow politics. Upon being asked why she was interested in living near Washington DC, Romero answered that she wants to be near the White House because she is an avid history buff.
On the Antifa strategy of physically confronting right-wingers at protests, Romero denied any involvement in a formal Antifa group—and claimed that her presence in a crowd of people physically putting themselves in the path of nationalist demonstrators was not meant to be confrontational.
When asked to describe the crowd of people she attended the rally with, Romero claimed they were students and mothers, omitting, as the defense pointed out, that most of the iconography used by counterprotesters expressed support and affiliation with militant anarchists and self-described communist organizations.
Because of the isolated nature of the James Fields car attack, Romero sought to try and tie defendants to the events of the torch rally the night before, which she described as physically and emotionally traumatizing her.
Josh Smith, lawyer for the Traditionalist Worker Party and Matt Parrott, asked Romero why she attended the August 12th rally if she was so shaken and damaged by her experience on August 11th. Incredibly, she responded that she traveled to the protest venue of Lee/Emancipation Park for a different event and her presence was an unfortunate coincidence.
The next plaintiff, who was until now listed as John Doe, was Devin Willis. Willis has yet to be cross-examined, but his testimony showed significant preparation and training.
Yet, even with his answers massaged out for him, Willis made a number of laughable claims. From 2017 to 2020, he was a public activist in Charlottesville, serving as leader of the Black Student Alliance at UVA and deeply engaged with local Black Lives Matter and anti-police activism.
According to Willis, he went to an unrelated Klan rally a month before Unite The Right as a neutral observer simply curious about the spectacle.
But the Heaphy Report [PDF], the only neutral summary of what happened in Charlottesville, contradicts Willis’ claim that the July 8 Klan protest was peaceful. Heaphy reported that the KKK was peaceful, but the counter-protesters began, without provocation, violently attacking the police once the Klan exited.
After the Klan’s departure, a group of counter-protesters focused their anger at law enforcement. Crowds failed to disperse when directed to do so and obstructed the actions of officers. This led to scuffles between officers and counter-protesters, multiple arrests, and the declaration of the event as an unlawful assembly. [Heaphy Report, P. 3]
Though still early in what is planned to be a four-week trial, the plaintiffs are either saving the best for last or actually banking on all 12 of the jurors in the case being thrown into an emotional tizzy.
Here’s what the jury looks like:
The final jury appeared to include four women, eight men and four Black people, and their views on politics and identity varied. They include a woman who thought the Unite the Right rally was “a tragic nightmare,” a man who believes far-left activists known as antifa are “troublemakers” who get into “racial riots,” and a man who dislikes Black Lives Matter because he claimed leaders say “they are trained Marxists.” There is also a man who had favorable views on Black Lives Matter and antifa, and a woman who often changes the television channel if news about these events comes up.
[Unite the Right trial opens with competing versions of deadly Charlottesville rally, by Ellie Silverman, Washington Post, October 28, 2021 (Links added)]
But with the polarizing Donald Trump out of the picture, the media-induced Moral Panic about “White Supremacy” may be played out.
For example, Terry McAuliffe has made Charlottesville and combating white nationalism a focal point of his political career and re-election campaign—he got a book out of it [At his book talk, Terry McAuliffe greets readers — and protesters, by Roxanne Roberts, Washington Post, August 2, 2019]. But McAuliffe, who until recently was favored to win, is now falling behind his rival Glenn Youngkin.
A jury verdict that finds in favor of defendants in Sines v. Kessler would be a decisive turning point. All the defense needs is to convince one juror—probably one of the eight non-blacks—of their innocence.
Email James Carson Harrington.