June 20, 2024 • 46 mins
Molly and Robert discuss the hung jury in the first of the nazi torch march cases to go to trial.
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Speaker 1 (00:01):
Cool Zone Media.
Speaker 2 (00:05):
Welcome back to it could happen here in a daily
podcast about the widening cracks in society threatening to swallow
you whole. I am once again your occasional host, Molly Conger,
joined today by your friend and mine, Robert Evans him.
Speaker 3 (00:18):
Yeah, friends of all people, how are you doing?
Speaker 1 (00:22):
Molly?
Speaker 2 (00:23):
Billy started things off, I heard my feelings.
Speaker 3 (00:25):
Yeah, well, you know, you and I have been buddies
for a while. We're a special kind of friend that
can only exist in the era of signal loops because
we met in twenty twenty and then since then the
bulk of our socializing has been one or the other
of us being like, so, this fucked up thing happened
to me on the internet.
Speaker 4 (00:47):
Yeah, that's friends at the end of the.
Speaker 3 (00:48):
World's friends at the end of the world. Yeah, watching
the long slow slide together.
Speaker 2 (00:54):
Well, today I've got sort of an update on the
ongoing cases against the Nazis who invaded my local college
campus seven years ago. I see, it's sort of because
it's a messy story and the end result is nothing.
So we finally got a case to trial and nothing changed.
So for listeners who aren't keeping tabs on my local
(01:14):
county courts effort to apply an old anti clan law
to a Nazi rally that happened a lifetime ago. Just
a quick reminder, Yeah, long time ago. This is about
the August eleventh, twenty seventeen torch march held at the
University of Virginia on the eve of the Unite the
Right rally in Charlottesville. I've done a couple.
Speaker 3 (01:30):
This is not the rally. This is not the precise
like the rally where there was the James Alexfield did
his vehicle based terrorist attack. This was the thing that
happened before that.
Speaker 2 (01:41):
This was the appetizer, right, This was the night before
they all got together and held their torches. And so
I've done a couple episodes about these cases, and I've
been writing about them in my newsletter, The Devil's Advocate.
So if you want a deeper dive into the cases,
more generally, that is available elsewhere. So in the year
in change since these cases started getting filed, we've seen
eleven guys charged under this sort of obscure Virginia law
(02:04):
that makes it a felony to burn an object with
the intent to intimidate. It's based on an old anti
clan law criminalizing cross burning. But back in nineteen ninety eight,
a couple of clansmen got into some trouble for burning
some crosses. And I'm trying to break myself off the
habit of getting really deep into these sort of tangential
pieces of history that underlie a story, because it turns
out that's my special interest and not actually great podcasting.
(02:27):
But the long and the short of it is, Virginia's
cross burning statute had to be amended. The original law
banned it outright, with this sort of built in assumption
that like, obviously, if you're burning across you're trying to
communicate a certain kind of threat. But the law didn't
actually say that, it just made it illegal to do it.
And so the act itself of burning the cross under
(02:47):
the old law was prima facia evidence of intent to intimidate,
and the courts ultimately found that that's unconstitutional. So in
two thousand and two, the General Assembly amended the law,
and they just added in some specific language that you
have to be doue it with a specific intent, right,
you have to be doing this to intimidate someone. Again,
that's kind of implied, but the implication was not sufficient,
(03:09):
so they changed it. I know that sounds like some
really like C span level, like boring shit, like legislative
history is not why you're here, But I promise that's
gonna pay off. Right, So, the law doesn't specify what
you're burning. It's not just crosses, it's any burning object,
but it does say you have to be doing it
with a particular intent and in a way.
Speaker 3 (03:24):
Could you theoretically smoke a cigarette in an aggressive manner
and violate this law.
Speaker 2 (03:29):
Power The Nazis lawyers keep asking that, and I don't
know the I feel like the answer is.
Speaker 3 (03:34):
Iry to see great minds think alike.
Speaker 2 (03:36):
I feel like every every one of these guys' lawyers
has been like, what if I flicked a cigarette at you?
Speaker 4 (03:40):
And it's like, I mean, well.
Speaker 3 (03:42):
Flicking as I would say that that's clearly a sight
because you can actually hurt someone with it, but like
just smoking it right, like with that tex.
Speaker 2 (03:49):
Right, Like if I'm smoking a cigarette while harassing you, you.
Speaker 3 (03:52):
Know, yeah, yeah, I'd be like, you're gonna go up
like this cigarette, bro, and then I light this cigarette?
Like is that if I violated it?
Speaker 2 (04:00):
I mean, I guess maybe, but it's all sort of contextual, right,
so the language of the law is what it is.
Speaker 4 (04:06):
You could try to bring that case.
Speaker 2 (04:07):
I'm not sure that it would work, but anyway, so
you bring an object specifically in a way that would
make somebody feel like you're gonna hurt them, right, so
placing someone in fear of injury or death. But since
that change was made in two thousand and two, nobody's
ever actually been charged with it. So, like many laws,
like Virginia's prohibition on trying to incite a race war,
(04:29):
that is apparently a Class four felony.
Speaker 3 (04:31):
Yeah, Thomas Jefferson might have had a hand in that law.
That's scance.
Speaker 2 (04:35):
Actually it's from nineteen fifty and I'm really interested in
the legislative history. I'm gonna ask a law librarian. But
again I'm lost again, I'm lost again. So this has
just been sitting on the books for twenty years, waiting
for somebody to try it, and so last year somebody
tried it. Last year, somebody finally put the law to
the test and started charging the guys who participated in
that torch march. And what better application of this law, right,
(04:58):
I can't think of a clearer example. They're on fire,
they're chanting blood and soil, they're throwing Hitler salutes, they're
attacking people. And of the eleven men charged so far,
five have already pled guilty. Four of those have already
been sentenced, all receiving active sentences of a year or less,
and they've actually already completed those sentences. Only half of
those guys actually went home from here, though, And then
(05:19):
the little aside Tyler Dyke served a few months here
and then he got picked up by the US Marshalls
on federal charges for the insurrection. William Fears served a year,
and he actually just got picked up the other day
by a county in Pennsylvania. It's an old bench warrant.
He's been in jail so many times in so many
states for the last twenty years that they've actually been
having trouble getting a hold of him for violating his
(05:40):
probation fifteen years ago. They let him off on probation
for lying on a firearm application in two thousand and five,
but then he kidnapped a college freshman and stabbed her
in the face, which I think was a probation violation,
And by the time they got around to bringing him
in he was already back in prison for strangling a
different woman. Again another digression. Sorry, So even though we've
(06:01):
had five guilty please, we still hadn't actually seen this
case taken to trial. So we know five defendants looked
at the evidence and thought, oh, yeah, well that's a
video of me committing that crime. We still didn't know
what a jury would make of it. And this month
Jacob Dix took his case to trial, and we still
don't actually know what a jury would make of it
(06:22):
because it ended in a mistrial. After twelve hours of
deliberation over the course of two days, which was significantly
longer than they actually spent hearing the evidence, the jury
was deadlocked. They had eight not guilty votes, three guilty,
and one person who didn't have an opinion either way.
A source tells me the jurors all agreed not to
make any public statements or to discuss what happened in
(06:44):
the deliberation room, so we don't know for sure what
the debate was like in there. But I sat through
the trial, and honestly, I know what kind of case
I would have put on right, So obviously, obviously I
believe a guilty verdict is achievable in this case. But
given what I saw, I'm surprised even a single juror
voted guilty. There's just there's nothing there. But before I
(07:06):
tell you about the three days I wasted sitting on
a wooden bench in a courtroom they used to use
for clan meetings, let's hear from some advertisers.
Speaker 3 (07:14):
Ah, speaking of the nope, nope for ads. Ah, we're back.
What a what a time to be alive.
Speaker 4 (07:33):
We are alive.
Speaker 2 (07:34):
The trial started on June fourth, and it did not
go well. I've written about this at greater length in
my newsletter if you want some background on why the
case ended up with a special prosecutor. But basically, the
judge fell for a Nazi conspiracy theory and that's where
we ended up. So the case goes to try good. Yeah,
you know, I I have a problem with the system
(07:55):
in Virginia of these substitute judges. So we had to
bring in a substitute judge. And it's just retired guys.
So they take cases if they feel like it.
Speaker 3 (08:03):
They don't, yeah, so they just add yeah, just ad
hoc judging. Sure, that seems good.
Speaker 2 (08:09):
Hey, there's a retirement age for a reason like, I
don't know that you're keeping up with the case law. Anyway,
we had a substitute judge and a special prosecutor, so
the case goes to trial with an out of town prosecutor.
And because of how late in the game this motion
was granted. And there's the speedy trial clock, they had
a pretty limited amount of time to get up to
speed after being assigned the case to prepare for trial.
(08:31):
So they didn't know the case. They don't know the
local cops, they don't know the witnesses, they're not familiar
with the clerk of court here. Just like basic procedural stuff.
This is not their home turf, and they don't really
have any investment in this case. This isn't something that
they chose to charge. It's just assigned to them. And again,
this is the first time this law has ever been
(08:51):
put in front of a jury, So there's no playbook here, right.
They can't sort of look to how this usually goes
and just do that. The real problem, though, is something
that's not unique at all. A prosecutor is desperate for
a good victim. They want something that is clean and uncomplicated.
They want to be able to show the jury, a
little morality play with good guys and bad guys, and
(09:13):
no messy stuff. They don't want the story to have
any elements that could snag on a juror's ideas about
the world. So instead of telling a story about anti
fascists being attacked by fascists, which is what happened, they
shaped their case around testimony from a bystander.
Speaker 3 (09:30):
Oh good, the most reliable kind of testimony. Yeah, now, I.
Speaker 2 (09:34):
Remember I promised that boring stuff about the statutory requirement
of intent would pay off. Right, Well, I'm not sure
the prosecutor understood that well. And if I were to
tell you that something was making me feel intimidated, you know, generally,
sort of colloquially speaking, I'm saying I'm afraid. I'm being
made to feel timid. Is the root of the word, right,
I am uncomfortable. I am afraid, But it means something
(09:57):
really specific here. It doesn't just mean being afraid in
conjunction with that language about placing someone in reasonable fear
of bodily injury or death. We're not talking about feeling afraid.
We're talking about the legal idea of a true threat.
So a true threat is something that is not free speech.
It is conduct and expression that is no longer protected
(10:18):
by the First Amendment. And I'm not going to go
to bat here for the First Amendment. I'm not going
to defend this sort of like libertarian idea that actually
it's good and healthy for a society that people can
march around playing Junior Stormtrooper. But you know, technically they
can right love it or hate it.
Speaker 3 (10:34):
That's not what we're talking about it. It's the difference
between saying I think the government should round up and
kill this group of people, which is absolutely protected speech,
and saying I am going to murder you tonight in
your home at this address, which you theoretically can get
in trouble for, although a lot of times people don't.
Speaker 2 (10:51):
You know, in my experience, people who see that to
me don't get in trouble. But I'm not sure that's. Yes,
it's a legal thing.
Speaker 3 (10:57):
It's mainly they get in trouble with they do that
to FBI agents, as that one Trump fan did after
Hunter Biden's conviction.
Speaker 2 (11:06):
Or there's been a rash lately of people getting picked
up after they leave a voicemail at a congressional office.
Speaker 4 (11:12):
Don't leave a threat in a voice.
Speaker 3 (11:13):
Okay, don't don't that. Yeah, Wyatt, what are you? What
are you doing? How do you think this is going
to work out? People are cooked?
Speaker 2 (11:22):
So a lot of people are learning lately what a
true threat is.
Speaker 4 (11:25):
Right.
Speaker 2 (11:25):
So, you know, up until that point, there's a lot
of shit you could do that sucks. You can march
around and be a little Nazi with your pals, but
what you cannot do is engage in conduct that constitutes
a truth threat. And I think drawing that line in
a really clear way for the jury is what this
case should have been about.
Speaker 4 (11:44):
I think they.
Speaker 2 (11:44):
Needed to hold the jury's hand through that, you know,
and say, you know, the defense is making this a
free speech case. And if it had stopped here, if
it had stopped at this point, you know, show them
where it stopped, where it changed. But they didn't do that,
and they left that line really blurry because the problem
is the point at which that line was crossed was
(12:06):
when that march encircled the small group of counter protesters, right,
So they spent half an hour marching and then they
got to where they were going, and that's when it
crossed the line. You know, they lit their torches, they
marched they chanted. It was obviously intended to evoke Nazi Germany.
You know, there's same blood and soil. Jews will not
replace us. It's a real Hitler vibe. And a lot
(12:27):
of people who are on the fence about the prosecutions
are looking at that and saying, well, yeah, like that's disgusting,
But isn't that free speech?
Speaker 4 (12:35):
And it is.
Speaker 2 (12:37):
Most of that was right, So most of that conduct
was not against the law. You know, if you saw that,
you might feel afraid. People did, and that makes sense.
It was very alarming to see. It might make you
feel unsafe, and it could and definitely did eventually evolve
into a situation where people are unsafe, But seeing them
(12:58):
pass by doesn't actually put you in a position where
you might die. I mean, not right at the moment anyway. Right,
you know, the law doesn't really extend to the idea
that this is part of a larger societal shift that
ends violently. You know, this existential thread of the rise
of fascism doesn't constitute a true threat in the immediate
sense under the law. Right.
Speaker 3 (13:19):
Yeah, A guy, a dude in a similar situation in
DC in twenty twenty stabbed a person and got off
because it was very clear that he like, when you
are surrounded.
Speaker 2 (13:35):
That's true threat, right, that you are in imminent danger. Right.
Speaker 4 (13:38):
And it wasn't just a person.
Speaker 2 (13:39):
That was Jeremy I know, Yeah, that was Jeremy Bertino.
Speaker 3 (13:44):
One of my favorite stabbings.
Speaker 2 (13:47):
Yeah, just a weird turn of events for Jeremy because
the month before he got stabbed it was oh gosh,
it was one of the other Proud Way rallies in DC.
I was surrounded by a group of proud boys that
he was come and so I was in that the
same position, and I was getting a little nervous because
they were starting to, you know, get in my face
and touch me and try and move me around. Jeremy
(14:09):
actually made them stop. You know, you know, you don't chivalry,
You don't got a hand it to Jeremy. But I
think he knew it would have been bad for them
if they stabbed me.
Speaker 3 (14:18):
Little did he know, Yeah, he would be there, whereas
the guy who stabbed him was in block and such.
Speaker 2 (14:24):
Yeah, just a strange, strange twist of history for Jeremy.
Now he states, witness m h anyway, where were we
we could cut some of that. I'm out of it. Today.
We're both in a bad way right now.
Speaker 3 (14:39):
Yeah, I think everyone's always in a bad way these days.
That's it's worth acknowledging. I can't sleep anymore. You're frazzled,
like welcome to twenty twenty four. It's fine. We're doing
as well as either a presidential candidate.
Speaker 2 (14:53):
I had to wait until the recess in the city
council meeting yesterday to go outside and check on the
drive by on my block. Likes are going good.
Speaker 3 (15:02):
Yeah, things are things are solid.
Speaker 4 (15:04):
Uh yeah, Should I just take that whole paragraph.
Speaker 3 (15:09):
From the top, sure, yeah, started.
Speaker 2 (15:14):
Because I don't even know where to re start.
Speaker 4 (15:17):
Okay.
Speaker 2 (15:18):
It wasn't until the march encounter the counter protesters that
there was truly intentional intimidation that placed them in fear
of injury or death. The people who were trapped, and
I mean that literally, all avenues of escape were close
to them. The march formed a circle around them that
was ten men deep. Those were the victims of this crime.
They were beaten and punched and kicked and pepper sprayed.
It were shoved and hit with lit torches. They thought
(15:40):
they would die. But those people are complicated, aren't they right?
Those people were Antifa, they were activists, they were believers
in Black Lives Matter, they were communists, the anarchists, right,
queer people, trans people, people of color, people who attend
protests have attended more since there were people who hated Nazis.
(16:04):
There were people with skin in the game.
Speaker 3 (16:06):
People whose existence is inherently politicized, and thus attempts to
destroy them can't just be seen as a human being
being assaulted. They have to be seen as like, well,
is the thing that they believe and my opinions on
it as a judge a mitigating factor.
Speaker 2 (16:21):
Right. It's messy, it shouldn't be, but it is right.
These were people who believe that we have a duty
to each other to stand in the way of the
march of fascism, and that night, that's literally what they did.
And that's murky for a prosecutor. What if the jury
doesn't like that, What if maybe just a little bit
(16:42):
they deserved it? Right? Does the law really still protect
you if you make a choice a jury doesn't understand?
And so the prosecutor chose to rest this case on
the shoulders of a young woman whose front door the
march past that night on its way to the scene
of the crime. As a young Jewish woman alone in
her room that night, she was terrified to hear the
(17:03):
approaching Nazi march. She took off a necklace in a
ring bearing symbols of her faith and hid them before
she fled her home in fear. She was absolutely a
victim of white supremacist terror. But I do not think
she was a victim under the language of this statute.
And I want to be so clear about that, right.
I'm not saying what happened to her was okay, or
(17:26):
that it's her fault that the case was presented this way.
She was subpoena, she gave the testimony she was required
by the law to give, and she gave it well.
And she's obviously deeply traumatized by this. And so when
I say she's not a victim of the crime, when
I say that, you know, the fear that she felt
does not meet this legal standard, I don't mean anything
other than that there are far more ways to harm
(17:48):
a person and a community than have been contemplated by
our part time General Assembly. But under this statute, being frightened,
however reasonable, that is, however serious, does she felt that
fear is not the same as being placed in reasonable
fear of death or bodily injury. I think her testimony
(18:09):
could have been really valuable as a supplement to this
overall presentation because she was very emotional. I think it
was very moving for the jury, but it didn't move
the needle legally, and I think it was a really
perilous foundation on which to try to construct a case.
But you know, it would not be a perilous course
of action for you to take Robert Jesus Christ.
Speaker 3 (18:30):
So it would be perilous if I didn't get this
ad break in because Sophie has a taser now, So
let's just let's just move right along.
Speaker 4 (18:39):
Does it ever stop feeling dirty to do that?
Speaker 3 (18:42):
No?
Speaker 2 (18:42):
No?
Speaker 3 (18:42):
I mean, you know what doesn't feel dirty these days, Mollie.
What feels clean probably buying. I pay so much in
taxes and that always feels dirty. Like I know where
they're going. I see the celebrities signing the bombs they
helped pay. I don't feel good about anything. We're back,
(19:09):
and you know, here's a free ad, Molly. I found
out where I can buy the really good mace. I
learned about this mace the right way to learn about mace,
which is I had it used on me and was like, Wow,
that mace was much more debilitating than normal mace.
Speaker 4 (19:23):
You've got a free sample, cops.
Speaker 3 (19:25):
Yeah, I got a free sample from two different federal
agencies and it knocked me at a commission for about
a half hour each time, which is pretty good for mace.
It's called silver bullet and it's a like a ten
percent OC two percent cs. I maybe mixing those up mix,
but you're not supposed to be able to buy it
if you're not law enforcement. But it's not illegal. So
I finally just found a website that doesn't doesn't check,
(19:47):
and now I've got the good mace. I don't really
know what to do with it.
Speaker 2 (19:50):
But does it actually have silver in it? Will it
also kill germs?
Speaker 3 (19:54):
No? No, no, I have to use my anti microbial
silver wound dressings for that, but I do have some
of those. Jesus Christ always useful to have, Molly important stuff.
Speaker 2 (20:07):
Well, I'm glad you got yourself a little treat.
Speaker 4 (20:09):
I think that's important these days.
Speaker 3 (20:11):
A little treat, Yeah, sort of.
Speaker 2 (20:12):
One of my guiding principles in this increasingly awful world
is if you can get a little treat.
Speaker 4 (20:17):
You should get a little treat.
Speaker 3 (20:19):
Yeah. One of my guiding principles is like, whenever I
decide I'm depressed and I'm going to like do retail therapy,
just just pick a pick up a new kind of weapon,
a kind of weapon I don't have already. I got
a rungu the other day, which is a kind of
stick that you beat people with. You know, I'm making
sure that I'm like diversified my portfolio.
Speaker 2 (20:41):
I was thinking more like sometimes at Kroger they have
a new flavor of chips. But your thing's cool too.
Speaker 3 (20:47):
Mm hmm. It's good. It's good. Chips can be a
weapon anyway. But let's move back to the subject.
Speaker 2 (20:54):
Back to the courthouse. Right, the defense in this case
was right about one thing. I mean, they didn't say
very much. They didn't actually put on a case. They
put on no evidence and no witnesses. But he spoke
a few times, right, the attorney. He spoke a few times,
And in his closing defense attorney Peter Fraser said he
didn't have to put on a case because the prosecutor
made his case for him. The counter protesters could not
(21:16):
be intimidated. Now that means what he said, right, the
counter protesters in this case, they couldn't be intimidated because
they opted into this. The protesters brought this on themselves.
Their mere presence in this public space expressing their right
to protest was a waiver of their right to safety,
and they consented to whatever happened after that, and they
(21:38):
couldn't be victims of anything. Right, They wanted this. They
chose to be there, they knew the Nazis were coming.
And the prosecutor's failure to rebut this, to actively push
back against the idea that entering this space with some
sort of agreement to mutual combat right, that the failure
to push back on that at all can only be
(21:59):
seen an agreement they allowed. The court and the defense
and the judge himself said, well, no one was hurt,
and they failed to call witnesses who were hurt because
people were hurt.
Speaker 3 (22:11):
Yeah, yeah, that seems like a massive, like disqualifying oversight.
Speaker 4 (22:17):
They you know, they could have find sometimes.
Speaker 3 (22:19):
Especially with anarchists defendants, that could be hard to get
people who are willing to testify that I imagine you
can find some people in this case.
Speaker 4 (22:27):
Right.
Speaker 2 (22:27):
So the thing is is I acknowledge that there are
many of the victims and many of the witnesses who
have chosen not to participate in this process.
Speaker 4 (22:35):
Right.
Speaker 2 (22:35):
First of all, I'm not saying it would be good
if this happened, but technically you can subpoena them anyway.
Speaker 1 (22:41):
Right.
Speaker 2 (22:42):
There are people in this case who would have cooperated
had they been called. People like Alan Groves, who in
twenty seventeen was a dean at UVA who was burned
by the flames, or UVA librarian Tyler McGill, who suffered
a catastrophic stroke after being struck in the neck by
a torch.
Speaker 3 (23:00):
Folks Free advice There.
Speaker 2 (23:02):
Prosecutors they subpoened, but did not call my own friend God,
one of the counter protesters there that night, whose testimony
about being pepper sprayed put Christopher Cantwell in jail. They
did not call Devin Willis or Natalie Romero, who were
plaintiffs in the civil lawsuit and have already proven their
ability to testify with incredible courage and clarity about being
kicked and punched as they were trapped by the wall
(23:24):
of flames. In the civil trial, Devon recalled the moment
he realized he had been doused in lighter fluid. He
thought that they were going to burn him alive. He
was nineteen years old, and he testified that all he
could think about was that he had so much to
live for and he had to find a way out.
And Natalie, she testified about being trapped, about how small
(23:48):
she felt at the center of the screaming mob, and
that she thought she would be burned to death as
she covered her face and her head from the rain
of fists, and she described that she didn't really understand
the effects of pepper spray. She was a college student.
She'd never been pepper sprayed before. When she got home
that night, she sat down on her shower to cry,
just trying to process the experience of nearly being killed
(24:12):
by a crowd of Nazis, and the hot steam reactivated
the chemical irritants, burning her eyes and skin all over again.
They didn't call the people who were hurt, and they
let the jury think that there were none and the
only actual witnessed No, you go ahead.
Speaker 3 (24:31):
That's just I just such a dereliction of duty, Like
it's such a frustrating like it's not hard, like this
is not secret information that you're privy to because of
your deep Antifa connections. You can just like google this.
This is like thirty minutes of reading to have a
couple of those names.
Speaker 2 (24:47):
At least the federal court transcripts of this testimony exist,
they're free.
Speaker 4 (24:53):
I already paid for them.
Speaker 2 (24:57):
You know. And at one point when the judge said,
I mean, this was out side the presence of the
jury when the judge said it. But the judge said, well,
you don't at no one was hurt. And I'm sitting
in the courtroom next to someone who was hurt, right,
And I'm just like, I embarrassed to be in this
room with these people who are behaving this way.
Speaker 1 (25:17):
You know.
Speaker 2 (25:18):
The only actual witness to and victim of this crime
that they put on the stand at all was Emily Gresenski,
and this was not her first time on the witness
stand in that courtroom. She also testified against Christopher can't
well for pepper spraying her that night, and she handled
it well, she's testified before. She's good at it, yes, unshakable.
But a witness can only answer the questions they're asked.
(25:41):
A witness can't put on their own evidence. A witness
can't tell you a story. A witness can't do anything
other than give short answers to questions. Right, So even
the best witness is only as good as the questions
they're asked. And they failed to elicit from her the
most important part of the story, what actually happened at
(26:01):
the statue. So a lot of the evidence they put
on with her on this because I don't want to
get too law in order about this, right, But you
can't just put on evidence, right, you have to have
a witness on the stand to testify to it. You
can't just show stuff.
Speaker 3 (26:16):
It's not a conversation. Like somebody can't just like raise
their hand in the middle of this and be like,
well I got actually I actually did get hurt at
that thing. Like, That's not the way court cases were.
Speaker 2 (26:25):
And so they used much of Emily's time on the
stand to show two videos. One was a video she shot,
so it makes sense to have her testify to this
video that she recorded, right. So she was live streaming
from the very beginning right down where they were preparing
and lighting the torches, and then she was following them
along on the march, just sort of documenting what was occurring.
Speaker 4 (26:44):
And that's what she thought.
Speaker 2 (26:45):
She was there to do, right, She's just documenting that
this march is taking place. She's thinking, Oh, they're going
to give some speeches. I'll record the speeches so people
can sort of see what this event was about. She
did not go there intending to become trapped and assaulted, right,
So much of her time on the stand was sort
of answering questions about this video as it played, But
they also had her answer questions about a video that
(27:07):
was recorded from inside the march, and I'm I'm not
sure how effective it was to just show thirty minutes
of video of guys walking, and the defense leaned really
heavily into the idea that, well, obviously she wasn't scared.
Look at her, right, So she's clearly not intimidated. She's
really close to this march, recording it. And without a
(27:28):
concrete theory of the case that establishes that, well, no,
this isn't where the crime is happening, right these guys
walking isn't the crime. She's not intimidated yet, that's that's
not happening right now. So without that sort of concrete
explanation for the jury that the crime occurs at the end,
they might take away from that that will, Oh, yeah,
she doesn't really seem scared here, right, that this whole
(27:51):
part where she's walking and narrating, she doesn't really seem scared.
And leaving aside the finer philosophical point that you can
be brave even if you're scared, her testimony was really
clear here she wasn't afraid for her life. Then she
testified that she arrived at the plaza where the statue
stands before the marchers did. Right, So they are marching
(28:12):
through UVA grounds and it ends in this sort of
plaza out in front of the rotunda where a statue is,
and she got there before the march did, and she
saw that the group of counterprotesters was very small, and
she knew what was coming, right. She watched these guys
get ready. She watched them put on their helmets and
their weighted gloves and their brass knuckles and lighting their torches,
(28:32):
and you know, guys are wrapping their hands like they're
getting ready for an mma fight. So she knows what's
coming and they don't. And so she looks at this
small group of young people and she's afraid for them.
She's afraid for their safety. She feels a duty to
these people, they're mostly college students, and because you can
be brave even if you are scared, she stayed with them,
(28:56):
and once they were surrounded by this increasingly violent mob,
once she was live streaming her own assault. Of course
she was in fear of bodily harm. She was being harmed, right,
There's not a debate about whether someone might be in
fear of bodily harm. You're watching them get harmed.
Speaker 3 (29:14):
Yeah, but if you aren't scared of that, then it
doesn't like that. That's I guess kind of the problem.
It should be like, would an average like a normal
person consider this to be an objectively threatening situation?
Speaker 4 (29:31):
And that is the standard.
Speaker 2 (29:33):
Yeah, this is not a crime that actually requires a
complaining victim to say I did feel this way. It's
a really it's what's called a reasonable person standard. Right,
So what a reasonable person in this situation feel this way?
The answer is yes, okay, right, the reasonable person would
be afraid, afraid of getting hit in the face.
Speaker 3 (29:53):
Yes, I would say so.
Speaker 2 (29:55):
And there was a lot of argument pre trial in
this case and some of the others that like, well,
you know, what does that even mean? What does it
mean for a reasonable person to be afraid. I mean,
that is a valid philosophical conversation, but it is not
a valid rebuttal to the idea of this charge because
that is the standard for many of the of the
statutes in our code. Right that like, it's the legal
(30:16):
standard for assault.
Speaker 3 (30:18):
Right.
Speaker 2 (30:19):
But again, much of the time she's on the stand,
they're just showing thirty minutes of people walking, and there
was so little time spent showing what happened when they
got there. They could have shown the jury the moment
of the video where at the top of the steps
to the rotunda, right, So they're at the top of
these stairs looking down at that plaza below, and these
(30:40):
counter protesters are just coming into view to the for
the first time for the marchers, and Daniel Borden looks
down and sees them and yells, you're outnumbered, Antifa, watch
out leftist scum. And now it matters that that's Daniel Borton,
because Daniel Borden.
Speaker 4 (30:58):
Was with Jacob Dix. They came together.
Speaker 2 (31:00):
Yeah, they're friends from back home in Ohio. Daniel bordon
is a name you might remember because the following day
he nearly beat a young black man to death. So
you know, he's looking down into the plaza and seeing
these people and stating the intent. Right, He's saying, like,
you know, watch out, Like I see you. There's more
of us than there are of you. You better watch out.
That is intimidation, right, Yeah, seems like it.
Speaker 3 (31:24):
If I'm the judge, the case has been made.
Speaker 4 (31:28):
But they did not.
Speaker 2 (31:29):
I'm not though they didn't highlight this portion of the video.
They just this long, uninterrupted presentation of video evidence without
any sort of discussion of what any of these moments meant.
Because moments after that, after Daniel Borden yells you're outnumbered Antifa,
he shouldered a shoulder with Dix. A few seconds later,
they're walking clockwise around the statue. They're starting to form
(31:51):
that circle, that ring that would trap the counter protesters in.
Borden looks at Dix again and says, why can't we
confront them? And then they continue to walk side by side,
taking their place in that ring of men, closing off
any path to safety. And you can see in photos
that Jacob Dix is face to face with some of
the counter protesters. He's not just in this sort of
(32:13):
mob of people, in this sort of nebulous zone he's
in the inner ring of people who are choosing to
physically trap the counter protesters. That is the intent that
they needed to show the jury, and they didn't rebut
the conjecture that he was only here because he loves
Confederate statues, right, he has Confederate heritage, he cares about
(32:34):
the monuments.
Speaker 3 (32:35):
Yeah, this is like prosecuting a drunk driver and having
having a breathalyzer test and just not introducing it into evidence,
being like, nah, I'm just going to be like, you know,
vibes wise, it seems like he was probably drinking. Yeah,
that's what it was. It was so irresponsible.
Speaker 2 (32:54):
The vibes were bad, and they were the vibes were bad,
but that's not the legal standard.
Speaker 3 (32:58):
Vibes are terrible, but that's not what you should be.
You have a much better case to make based on
the evidence easily available to you.
Speaker 2 (33:06):
If there was if none of this evidence existed, if
this was all they had, maybe don't take it a trial.
But this evidence was right there for them. The moment,
the moment where they're looking down the steps that's in
the video they played.
Speaker 3 (33:20):
I feel like there were at least six different people
the prosecutor could have just like emailed and they would
have basically put together the whole case for this person.
Speaker 2 (33:29):
It's just so available, right, you know. So the defense says, well,
you know he has Confederate heritage, you see here because
of the statues. They could have rebutted that by showing
the jury his discord posts where he was helping organize
housing for at least eighty other Unite the Right attendees
at a group of airbnbs which he called the Eagles
Nest and from which he was helping organize rides to
(33:51):
the rally in what they were calling Nazi uber. That's
not about your Confederate heritage, is it. The Eagles Nest
was like Hitler's vacation house for people who aren't up
on their their Hitler lore.
Speaker 3 (34:04):
Yeah, their hit lower if you will, their hit lore.
Yeah yeah, I'm not proud of it. But that happened.
Speaker 2 (34:12):
That took me out for a second, And they didn't
show him attending the Nazi rally in Pikeville in April
of that same year. There's a photograph of him standing
shoulder to shoulder with members of the Traditionalist Worker Party.
Right arm extended a forty five degree angle, palm down.
I think that says something about why he was there, right,
(34:33):
and they didn't show his discord post about how he
was getting really hyped about the rally, writing nothing can
replace the feeling you get at a white nationalist rally.
I don't know the evidence exists, right, and once you
get to the base of the statue, that intimidation element
required for the charge is clear. We know people were
(34:54):
in reasonable fear of bodily harm because their bodies were harmed.
The evidence of intent is not hard to fight. The
marchers saw the small group of counter protesters as they
descended those stairs. They saw them from above, and they
chose to proceed and surround them, knowing they vastly outnumbered them.
They hooted and cheered, screaming We're coming for you. As
(35:15):
they encircled the statue. There were assigned marshals for the march,
directing people in a clockwise fashion around the statue to
form the circle. This was not an organic event, and
as the ring closed, Richard Spencer's bodyguard, a now former Woburn,
Massachusetts police officer, John Donnelly, can be heard in one
(35:37):
video saying that we need to fill in over here
to block these guys off. This was an intentional act.
The defendant himself is visible in these videos as he
moves down the steps across the plaza and winds his
way around the statue, and as the fighting breaks out,
he holds his position in the inner ring of torch
(35:57):
bearers who have these people trapped unable to escape the violence.
It doesn't matter that he did not commit these acts
of violence. He was holding the line that trapped people
inside of it, and his intent in that moment is inescapable.
But the jury doesn't know that. It's just an incredible failure.
Speaker 3 (36:20):
Honestly, Yeah, yeah, I'm glad the case got thrown out.
Is it possible that the next person to be prosecutor
in this will have an IQ that rises above room temperature?
Speaker 2 (36:33):
So I asked several lawyers about some of the finer
points of what happens with a mistrial, and I got
different answers from all of them, because this is sort
of like everything in this case is just a little
bit fucked up. Right. We have a substitute judge, we
have a special prosecutor, we have a mistrial, We have
just like so many things that kind of mess it
(36:53):
up a little bit. In the event of a mistrial,
the prosecutor has the option to try the case again, right,
that's always the case. There's a mistrial, the prosecutor can say, eh,
I'm gonna let it go. I'm just gonna let it go.
Or they can say no, we're gonna bring it again.
We're gonna bring it again, and they don't have to
bring it the same way. They can bring in different evidence,
different witnesses. It's sort of a mulligan for everybody.
Speaker 4 (37:15):
Right. What's not one hundred percent clear is.
Speaker 2 (37:17):
Whether the same special prosecutor tries it again or if
it sort of goes back to Roulette. Several lawyers agreed
that it would be the same prosecutor. I believe her
office is under that impression. So right after the mistrial
was declared, Shannon Taylor, the special prosecutor, said she does
plan to try it again. That could just be bravado.
It's unclear. There's a hearing date set for August for
(37:40):
there's still some pending motions in the case, and so
the funniest part is that there's still a pending motion
to dismiss from the defense. So technically, even if the
prosecutor says yes, I'm bringing this case again. I'm doing it.
The judge can be like, actually, I'm dismissing it. So
it could go a lot of ways right now, But
at this point I'm not super hung up on the
(38:01):
particularities of this defendant, right. I think this mistrial teaches
us something sort of more generally about these cases and
the other torch cases specifically, obviously, but I think more generally,
what does it look like for criminal charges to be
a roadblock in the path of people involved in white
supremacists organizing. You know, at the end of the day,
(38:21):
whether or not some guy from Ohio serves four months
of a six month sentence on a CLASSICX felony, it
doesn't really matter, right, Like, this isn't this isn't an important.
Speaker 3 (38:30):
Yeah, it's whether or not anyone is actually scared off
from organizing.
Speaker 2 (38:36):
Right, Like not to use the language of the prosecutor,
you know, the Master's house, the master's tools, this, that,
and the other.
Speaker 3 (38:41):
But part of part of cott into that logic, right,
be honest.
Speaker 2 (38:46):
I mean he used those tools for a reason, right,
But yeah.
Speaker 3 (38:49):
I mean he used those tools for a reason. Like
if you couldn't bring down the Master's house with the
master's tools. Then what were all of those formerly Czarist
troops doing overthrowing the government with rights the Czar gave them?
Speaker 2 (39:01):
You know, you know, part of what prosecutors talk about
when they talk about charging, maybe not these cases in particular,
but just generally speaking, is that bringing cases is intended
as a form of deterrence for everybody. Right, that what
happens to this guy is not the most important. But
maybe some other guys see this and think maybe that's
not a good idea. And so I think in some
(39:22):
of these cases, though, you can see, you know, maybe
that this charge is interrupting a more significant pattern of behavior. Right,
So nailing Thomas Rousseau on a felony would obviously change
the trajectory for Patriot Front. I don't know if that
would I don't know what that looks like at the end,
but it certainly changes the trajectory. So Thomas Rousseau is
set for trial in the fall. So he has been charged,
(39:45):
and I think that will be an interesting case to
follow because he has the same lawyer. And you know,
if they end up charging Jason Kessler, that would just
be really funny. You know, there's a lot of possible
outcomes here. If they'd arrested these guys in real time
that night, maybe the rally the next day would be different.
If the cases had been brought six years ago, you know,
maybe certain arcs of history would have bent differently. It
(40:06):
would have broken some momentum, or discouraged some movement activity,
or broken bonds between people who met there. Some of
the guys who were there and could have been charged
in real time went on to do some real damage
in their personal lives and their communities. But I'm not
sure that's a basket I want to put my eggs into. Right,
if a court case takes a fascist out of the game, right, right,
(40:28):
that's some kind of harm reduction, But it's not something
you could count on, and honestly, it doesn't consistently reduce
harm in the long run. You just can't get lost
in the sort of what ifs of you know, what
if the system worked better to actually help us, because
it doesn't. That was never on the table. It's not
like I'm saying, you know, well, we needed a conviction
in this case because the courts are the ones who
(40:50):
are going to protect us by putting this man in jail. Briefly, right,
that's that's not the case. I think the lessons are
immediately instructive to the prosecutor who tries the next one. Obviously,
you know, watching the game tapes play better next time.
You know, if they're going to put these cases on,
they need to do it properly. I would rather see
this not happen at all than watch it get fumbled
like this, because that's just a victory for them.
Speaker 3 (41:12):
Right right, Yeah, And.
Speaker 2 (41:14):
It's a sharp reminder that the courts are not equipped
to interrupt fascism or rein in white supremacy. That's not
what they were built for. That, it's not what this
tool does. You are trying to screw it in with
a hammer, because faced with a really clear opportunity to
do that, the prosecutor shied away from them. You know,
the state is not the secret weapon that is going
(41:35):
to stop fascism for us or protect us from the
fascists who want to stop us from stopping them. You know,
at best, it is a banana peel on their Mario
Kart track. You know, it is interesting to watch this
play out, but I don't think it is some I
don't think this will bring any sort of repair. Yeah,
but it might ruin some guy's day, and I'll be
(41:57):
there when it happens.
Speaker 3 (41:59):
You know, I don't think it's worthless obviously. I think
in fact, one of the things I will point out,
since this is kind of ending on a doomer, and
I think the I think the legal onslaught that was
launched by the survivors, shall we say mm hm at
Charlottesville against organizers and whatnot is a big part of
why a lot of that most of that crew stopped
(42:22):
being relevant, like it did in fact damage them. Now
did it disrupt and stop fascism Nation? Why? Of course not.
That was never in the cards, right, Like you're talking
about trends and forces that are too big for a
handful of very dedicated leftists to stop by suing some asshole.
But like, you know, one thing people get wrong a
lot is saying like, oh, you know, when a fucking
(42:44):
what's his name got punched, that really knocked him out
of public life, and it's like, no, Charlottesville came after
that fucker got punched, Like it was the series of
court cases that ruined his life really to an extent.
Speaker 2 (42:56):
And I think there's an important conversation to be how
about what it means to win, Right, Because if you're
a lawyer, if you're a prosecutor, winning is really black
and white. You know, win a judgment, you win a conviction.
But that's not how I view the courts as a
tool in this process. Right That, like winning a conviction
or actually getting paid out that judgment, that's not the
victory we're looking for. Right That, this is a tool
(43:17):
for sort of chiseling away, and no single step gets
you there. So I wouldn't say that these cases are
not useful or they're not interesting. And that's why that
this isn't a huge disappointment, right that, Like what happens
to any of these individual people isn't the point.
Speaker 4 (43:35):
This is just part of a process.
Speaker 3 (43:38):
Yeah, So I don't know, keep that in mind as
you look at this stuff, like, because it's very easy
to look at one case and just be like, oh,
it's doomed. There's no point in trying any of this.
It's like, no, the actual the law fair that people
have launched in response to Charlottsville has been a successful action, Like,
if you want to look at it kind of in
(44:00):
military terms, it has been an offensive that has broadly
achieved a number of its goals.
Speaker 2 (44:05):
The Signs Becassler lawsuit against the Unit the Right organizers.
It's sort of established this playbook that's now being used
by others. There are similar similarly structured lawsuits now being
filed against other white supremacist groups, against White Lives Matter Ohio,
against Patriot Front. And it is effective, and again not
in the sense that the lawsuits will extract money. Judgments
(44:27):
well that.
Speaker 3 (44:27):
Everyone's going to go to fucking prison, but it makes
their lives miserable.
Speaker 1 (44:30):
Yeah.
Speaker 3 (44:31):
I just don't want people to walk away being like, well,
there's no point in fighting this way, because there actually is.
It works very well. It's just not a silver bullet.
Speaker 4 (44:40):
It's not a sports ugly.
Speaker 3 (44:41):
And messy and hard. And I will end at least
by saying, you know, I know we have a lot
of anti electoralist type people here. The one place you
absolutely should vote, if that is a thing where you live,
is elections for local judges, because that is a great
way to at least reduce the odds that you're friends
go to prison. I know people I have people I
(45:03):
love who are not in prison because the judge they
happened to draw wasn't a piece of shit, and you're
really just hurting yourself if you don't, if you have
the option to pick a judge who sucks less, and
you don't try to. That's that's where I land on
that shit.
Speaker 2 (45:18):
There's a lot that we can do, and none of
it's going to do it all. But Yep, in the meantime,
I will continue spending whole days on that horrible wooden
bench and I'll let you know how it goes.
Speaker 3 (45:29):
Yep. Thank you Molly for continuing to engage with a
system that is not very fun to engage with. Necessary too, well, everybody.
That's the episode. Good to hell, We love you.
Speaker 1 (45:47):
It Could Happen here as a production of cool Zone Media.
For more podcasts from cool Zone Media, visit our website
cool zonemedia dot com, or check us out on the
iHeartRadio app, Apple Podcasts, or wherever you listen to podcasts.
You can find sources for It Could Happen your updated
monthly at coolzonemedia dot com slash sources. Thanks for listening.
Cool Zone Media.
Speaker 2 (00:05):
Welcome back to it could happen here in a daily
podcast about the widening cracks in society threatening to swallow
you whole. I am once again your occasional host, Molly Conger,
joined today by your friend and mine, Robert Evans him.
Speaker 3 (00:18):
Yeah, friends of all people, how are you doing?
Speaker 1 (00:22):
Molly?
Speaker 2 (00:23):
Billy started things off, I heard my feelings.
Speaker 3 (00:25):
Yeah, well, you know, you and I have been buddies
for a while. We're a special kind of friend that
can only exist in the era of signal loops because
we met in twenty twenty and then since then the
bulk of our socializing has been one or the other
of us being like, so, this fucked up thing happened
to me on the internet.
Speaker 4 (00:47):
Yeah, that's friends at the end of the.
Speaker 3 (00:48):
World's friends at the end of the world. Yeah, watching
the long slow slide together.
Speaker 2 (00:54):
Well, today I've got sort of an update on the
ongoing cases against the Nazis who invaded my local college
campus seven years ago. I see, it's sort of because
it's a messy story and the end result is nothing.
So we finally got a case to trial and nothing changed.
So for listeners who aren't keeping tabs on my local
(01:14):
county courts effort to apply an old anti clan law
to a Nazi rally that happened a lifetime ago. Just
a quick reminder, Yeah, long time ago. This is about
the August eleventh, twenty seventeen torch march held at the
University of Virginia on the eve of the Unite the
Right rally in Charlottesville. I've done a couple.
Speaker 3 (01:30):
This is not the rally. This is not the precise
like the rally where there was the James Alexfield did
his vehicle based terrorist attack. This was the thing that
happened before that.
Speaker 2 (01:41):
This was the appetizer, right, This was the night before
they all got together and held their torches. And so
I've done a couple episodes about these cases, and I've
been writing about them in my newsletter, The Devil's Advocate.
So if you want a deeper dive into the cases,
more generally, that is available elsewhere. So in the year
in change since these cases started getting filed, we've seen
eleven guys charged under this sort of obscure Virginia law
(02:04):
that makes it a felony to burn an object with
the intent to intimidate. It's based on an old anti
clan law criminalizing cross burning. But back in nineteen ninety eight,
a couple of clansmen got into some trouble for burning
some crosses. And I'm trying to break myself off the
habit of getting really deep into these sort of tangential
pieces of history that underlie a story, because it turns
out that's my special interest and not actually great podcasting.
(02:27):
But the long and the short of it is, Virginia's
cross burning statute had to be amended. The original law
banned it outright, with this sort of built in assumption
that like, obviously, if you're burning across you're trying to
communicate a certain kind of threat. But the law didn't
actually say that, it just made it illegal to do it.
And so the act itself of burning the cross under
(02:47):
the old law was prima facia evidence of intent to intimidate,
and the courts ultimately found that that's unconstitutional. So in
two thousand and two, the General Assembly amended the law,
and they just added in some specific language that you
have to be doue it with a specific intent, right,
you have to be doing this to intimidate someone. Again,
that's kind of implied, but the implication was not sufficient,
(03:09):
so they changed it. I know that sounds like some
really like C span level, like boring shit, like legislative
history is not why you're here, But I promise that's
gonna pay off. Right, So, the law doesn't specify what
you're burning. It's not just crosses, it's any burning object,
but it does say you have to be doing it
with a particular intent and in a way.
Speaker 3 (03:24):
Could you theoretically smoke a cigarette in an aggressive manner
and violate this law.
Speaker 2 (03:29):
Power The Nazis lawyers keep asking that, and I don't
know the I feel like the answer is.
Speaker 3 (03:34):
Iry to see great minds think alike.
Speaker 2 (03:36):
I feel like every every one of these guys' lawyers
has been like, what if I flicked a cigarette at you?
Speaker 4 (03:40):
And it's like, I mean, well.
Speaker 3 (03:42):
Flicking as I would say that that's clearly a sight
because you can actually hurt someone with it, but like
just smoking it right, like with that tex.
Speaker 2 (03:49):
Right, Like if I'm smoking a cigarette while harassing you, you.
Speaker 3 (03:52):
Know, yeah, yeah, I'd be like, you're gonna go up
like this cigarette, bro, and then I light this cigarette?
Like is that if I violated it?
Speaker 2 (04:00):
I mean, I guess maybe, but it's all sort of contextual, right,
so the language of the law is what it is.
Speaker 4 (04:06):
You could try to bring that case.
Speaker 2 (04:07):
I'm not sure that it would work, but anyway, so
you bring an object specifically in a way that would
make somebody feel like you're gonna hurt them, right, so
placing someone in fear of injury or death. But since
that change was made in two thousand and two, nobody's
ever actually been charged with it. So, like many laws,
like Virginia's prohibition on trying to incite a race war,
(04:29):
that is apparently a Class four felony.
Speaker 3 (04:31):
Yeah, Thomas Jefferson might have had a hand in that law.
That's scance.
Speaker 2 (04:35):
Actually it's from nineteen fifty and I'm really interested in
the legislative history. I'm gonna ask a law librarian. But
again I'm lost again, I'm lost again. So this has
just been sitting on the books for twenty years, waiting
for somebody to try it, and so last year somebody
tried it. Last year, somebody finally put the law to
the test and started charging the guys who participated in
that torch march. And what better application of this law, right,
(04:58):
I can't think of a clearer example. They're on fire,
they're chanting blood and soil, they're throwing Hitler salutes, they're
attacking people. And of the eleven men charged so far,
five have already pled guilty. Four of those have already
been sentenced, all receiving active sentences of a year or less,
and they've actually already completed those sentences. Only half of
those guys actually went home from here, though, And then
(05:19):
the little aside Tyler Dyke served a few months here
and then he got picked up by the US Marshalls
on federal charges for the insurrection. William Fears served a year,
and he actually just got picked up the other day
by a county in Pennsylvania. It's an old bench warrant.
He's been in jail so many times in so many
states for the last twenty years that they've actually been
having trouble getting a hold of him for violating his
(05:40):
probation fifteen years ago. They let him off on probation
for lying on a firearm application in two thousand and five,
but then he kidnapped a college freshman and stabbed her
in the face, which I think was a probation violation,
And by the time they got around to bringing him
in he was already back in prison for strangling a
different woman. Again another digression. Sorry, So even though we've
(06:01):
had five guilty please, we still hadn't actually seen this
case taken to trial. So we know five defendants looked
at the evidence and thought, oh, yeah, well that's a
video of me committing that crime. We still didn't know
what a jury would make of it. And this month
Jacob Dix took his case to trial, and we still
don't actually know what a jury would make of it
(06:22):
because it ended in a mistrial. After twelve hours of
deliberation over the course of two days, which was significantly
longer than they actually spent hearing the evidence, the jury
was deadlocked. They had eight not guilty votes, three guilty,
and one person who didn't have an opinion either way.
A source tells me the jurors all agreed not to
make any public statements or to discuss what happened in
(06:44):
the deliberation room, so we don't know for sure what
the debate was like in there. But I sat through
the trial, and honestly, I know what kind of case
I would have put on right, So obviously, obviously I
believe a guilty verdict is achievable in this case. But
given what I saw, I'm surprised even a single juror
voted guilty. There's just there's nothing there. But before I
(07:06):
tell you about the three days I wasted sitting on
a wooden bench in a courtroom they used to use
for clan meetings, let's hear from some advertisers.
Speaker 3 (07:14):
Ah, speaking of the nope, nope for ads. Ah, we're back.
What a what a time to be alive.
Speaker 4 (07:33):
We are alive.
Speaker 2 (07:34):
The trial started on June fourth, and it did not
go well. I've written about this at greater length in
my newsletter if you want some background on why the
case ended up with a special prosecutor. But basically, the
judge fell for a Nazi conspiracy theory and that's where
we ended up. So the case goes to try good. Yeah,
you know, I I have a problem with the system
(07:55):
in Virginia of these substitute judges. So we had to
bring in a substitute judge. And it's just retired guys.
So they take cases if they feel like it.
Speaker 3 (08:03):
They don't, yeah, so they just add yeah, just ad
hoc judging. Sure, that seems good.
Speaker 2 (08:09):
Hey, there's a retirement age for a reason like, I
don't know that you're keeping up with the case law. Anyway,
we had a substitute judge and a special prosecutor, so
the case goes to trial with an out of town prosecutor.
And because of how late in the game this motion
was granted. And there's the speedy trial clock, they had
a pretty limited amount of time to get up to
speed after being assigned the case to prepare for trial.
(08:31):
So they didn't know the case. They don't know the
local cops, they don't know the witnesses, they're not familiar
with the clerk of court here. Just like basic procedural stuff.
This is not their home turf, and they don't really
have any investment in this case. This isn't something that
they chose to charge. It's just assigned to them. And again,
this is the first time this law has ever been
(08:51):
put in front of a jury, So there's no playbook here, right.
They can't sort of look to how this usually goes
and just do that. The real problem, though, is something
that's not unique at all. A prosecutor is desperate for
a good victim. They want something that is clean and uncomplicated.
They want to be able to show the jury, a
little morality play with good guys and bad guys, and
(09:13):
no messy stuff. They don't want the story to have
any elements that could snag on a juror's ideas about
the world. So instead of telling a story about anti
fascists being attacked by fascists, which is what happened, they
shaped their case around testimony from a bystander.
Speaker 3 (09:30):
Oh good, the most reliable kind of testimony. Yeah, now, I.
Speaker 2 (09:34):
Remember I promised that boring stuff about the statutory requirement
of intent would pay off. Right, Well, I'm not sure
the prosecutor understood that well. And if I were to
tell you that something was making me feel intimidated, you know, generally,
sort of colloquially speaking, I'm saying I'm afraid. I'm being
made to feel timid. Is the root of the word, right,
I am uncomfortable. I am afraid, But it means something
(09:57):
really specific here. It doesn't just mean being afraid in
conjunction with that language about placing someone in reasonable fear
of bodily injury or death. We're not talking about feeling afraid.
We're talking about the legal idea of a true threat.
So a true threat is something that is not free speech.
It is conduct and expression that is no longer protected
(10:18):
by the First Amendment. And I'm not going to go
to bat here for the First Amendment. I'm not going
to defend this sort of like libertarian idea that actually
it's good and healthy for a society that people can
march around playing Junior Stormtrooper. But you know, technically they
can right love it or hate it.
Speaker 3 (10:34):
That's not what we're talking about it. It's the difference
between saying I think the government should round up and
kill this group of people, which is absolutely protected speech,
and saying I am going to murder you tonight in
your home at this address, which you theoretically can get
in trouble for, although a lot of times people don't.
Speaker 2 (10:51):
You know, in my experience, people who see that to
me don't get in trouble. But I'm not sure that's. Yes,
it's a legal thing.
Speaker 3 (10:57):
It's mainly they get in trouble with they do that
to FBI agents, as that one Trump fan did after
Hunter Biden's conviction.
Speaker 2 (11:06):
Or there's been a rash lately of people getting picked
up after they leave a voicemail at a congressional office.
Speaker 4 (11:12):
Don't leave a threat in a voice.
Speaker 3 (11:13):
Okay, don't don't that. Yeah, Wyatt, what are you? What
are you doing? How do you think this is going
to work out? People are cooked?
Speaker 2 (11:22):
So a lot of people are learning lately what a
true threat is.
Speaker 4 (11:25):
Right.
Speaker 2 (11:25):
So, you know, up until that point, there's a lot
of shit you could do that sucks. You can march
around and be a little Nazi with your pals, but
what you cannot do is engage in conduct that constitutes
a truth threat. And I think drawing that line in
a really clear way for the jury is what this
case should have been about.
Speaker 4 (11:44):
I think they.
Speaker 2 (11:44):
Needed to hold the jury's hand through that, you know,
and say, you know, the defense is making this a
free speech case. And if it had stopped here, if
it had stopped at this point, you know, show them
where it stopped, where it changed. But they didn't do that,
and they left that line really blurry because the problem
is the point at which that line was crossed was
(12:06):
when that march encircled the small group of counter protesters, right,
So they spent half an hour marching and then they
got to where they were going, and that's when it
crossed the line. You know, they lit their torches, they
marched they chanted. It was obviously intended to evoke Nazi Germany.
You know, there's same blood and soil. Jews will not
replace us. It's a real Hitler vibe. And a lot
(12:27):
of people who are on the fence about the prosecutions
are looking at that and saying, well, yeah, like that's disgusting,
But isn't that free speech?
Speaker 4 (12:35):
And it is.
Speaker 2 (12:37):
Most of that was right, So most of that conduct
was not against the law. You know, if you saw that,
you might feel afraid. People did, and that makes sense.
It was very alarming to see. It might make you
feel unsafe, and it could and definitely did eventually evolve
into a situation where people are unsafe, But seeing them
(12:58):
pass by doesn't actually put you in a position where
you might die. I mean, not right at the moment anyway. Right,
you know, the law doesn't really extend to the idea
that this is part of a larger societal shift that
ends violently. You know, this existential thread of the rise
of fascism doesn't constitute a true threat in the immediate
sense under the law. Right.
Speaker 3 (13:19):
Yeah, A guy, a dude in a similar situation in
DC in twenty twenty stabbed a person and got off
because it was very clear that he like, when you
are surrounded.
Speaker 2 (13:35):
That's true threat, right, that you are in imminent danger. Right.
Speaker 4 (13:38):
And it wasn't just a person.
Speaker 2 (13:39):
That was Jeremy I know, Yeah, that was Jeremy Bertino.
Speaker 3 (13:44):
One of my favorite stabbings.
Speaker 2 (13:47):
Yeah, just a weird turn of events for Jeremy because
the month before he got stabbed it was oh gosh,
it was one of the other Proud Way rallies in DC.
I was surrounded by a group of proud boys that
he was come and so I was in that the
same position, and I was getting a little nervous because
they were starting to, you know, get in my face
and touch me and try and move me around. Jeremy
(14:09):
actually made them stop. You know, you know, you don't chivalry,
You don't got a hand it to Jeremy. But I
think he knew it would have been bad for them
if they stabbed me.
Speaker 3 (14:18):
Little did he know, Yeah, he would be there, whereas
the guy who stabbed him was in block and such.
Speaker 2 (14:24):
Yeah, just a strange, strange twist of history for Jeremy.
Now he states, witness m h anyway, where were we
we could cut some of that. I'm out of it. Today.
We're both in a bad way right now.
Speaker 3 (14:39):
Yeah, I think everyone's always in a bad way these days.
That's it's worth acknowledging. I can't sleep anymore. You're frazzled,
like welcome to twenty twenty four. It's fine. We're doing
as well as either a presidential candidate.
Speaker 2 (14:53):
I had to wait until the recess in the city
council meeting yesterday to go outside and check on the
drive by on my block. Likes are going good.
Speaker 3 (15:02):
Yeah, things are things are solid.
Speaker 4 (15:04):
Uh yeah, Should I just take that whole paragraph.
Speaker 3 (15:09):
From the top, sure, yeah, started.
Speaker 2 (15:14):
Because I don't even know where to re start.
Speaker 4 (15:17):
Okay.
Speaker 2 (15:18):
It wasn't until the march encounter the counter protesters that
there was truly intentional intimidation that placed them in fear
of injury or death. The people who were trapped, and
I mean that literally, all avenues of escape were close
to them. The march formed a circle around them that
was ten men deep. Those were the victims of this crime.
They were beaten and punched and kicked and pepper sprayed.
It were shoved and hit with lit torches. They thought
(15:40):
they would die. But those people are complicated, aren't they right?
Those people were Antifa, they were activists, they were believers
in Black Lives Matter, they were communists, the anarchists, right,
queer people, trans people, people of color, people who attend
protests have attended more since there were people who hated Nazis.
(16:04):
There were people with skin in the game.
Speaker 3 (16:06):
People whose existence is inherently politicized, and thus attempts to
destroy them can't just be seen as a human being
being assaulted. They have to be seen as like, well,
is the thing that they believe and my opinions on
it as a judge a mitigating factor.
Speaker 2 (16:21):
Right. It's messy, it shouldn't be, but it is right.
These were people who believe that we have a duty
to each other to stand in the way of the
march of fascism, and that night, that's literally what they did.
And that's murky for a prosecutor. What if the jury
doesn't like that, What if maybe just a little bit
(16:42):
they deserved it? Right? Does the law really still protect
you if you make a choice a jury doesn't understand?
And so the prosecutor chose to rest this case on
the shoulders of a young woman whose front door the
march past that night on its way to the scene
of the crime. As a young Jewish woman alone in
her room that night, she was terrified to hear the
(17:03):
approaching Nazi march. She took off a necklace in a
ring bearing symbols of her faith and hid them before
she fled her home in fear. She was absolutely a
victim of white supremacist terror. But I do not think
she was a victim under the language of this statute.
And I want to be so clear about that, right.
I'm not saying what happened to her was okay, or
(17:26):
that it's her fault that the case was presented this way.
She was subpoena, she gave the testimony she was required
by the law to give, and she gave it well.
And she's obviously deeply traumatized by this. And so when
I say she's not a victim of the crime, when
I say that, you know, the fear that she felt
does not meet this legal standard, I don't mean anything
other than that there are far more ways to harm
(17:48):
a person and a community than have been contemplated by
our part time General Assembly. But under this statute, being frightened,
however reasonable, that is, however serious, does she felt that
fear is not the same as being placed in reasonable
fear of death or bodily injury. I think her testimony
(18:09):
could have been really valuable as a supplement to this
overall presentation because she was very emotional. I think it
was very moving for the jury, but it didn't move
the needle legally, and I think it was a really
perilous foundation on which to try to construct a case.
But you know, it would not be a perilous course
of action for you to take Robert Jesus Christ.
Speaker 3 (18:30):
So it would be perilous if I didn't get this
ad break in because Sophie has a taser now, So
let's just let's just move right along.
Speaker 4 (18:39):
Does it ever stop feeling dirty to do that?
Speaker 3 (18:42):
No?
Speaker 2 (18:42):
No?
Speaker 3 (18:42):
I mean, you know what doesn't feel dirty these days, Mollie.
What feels clean probably buying. I pay so much in
taxes and that always feels dirty. Like I know where
they're going. I see the celebrities signing the bombs they
helped pay. I don't feel good about anything. We're back,
(19:09):
and you know, here's a free ad, Molly. I found
out where I can buy the really good mace. I
learned about this mace the right way to learn about mace,
which is I had it used on me and was like, Wow,
that mace was much more debilitating than normal mace.
Speaker 4 (19:23):
You've got a free sample, cops.
Speaker 3 (19:25):
Yeah, I got a free sample from two different federal
agencies and it knocked me at a commission for about
a half hour each time, which is pretty good for mace.
It's called silver bullet and it's a like a ten
percent OC two percent cs. I maybe mixing those up mix,
but you're not supposed to be able to buy it
if you're not law enforcement. But it's not illegal. So
I finally just found a website that doesn't doesn't check,
(19:47):
and now I've got the good mace. I don't really
know what to do with it.
Speaker 2 (19:50):
But does it actually have silver in it? Will it
also kill germs?
Speaker 3 (19:54):
No? No, no, I have to use my anti microbial
silver wound dressings for that, but I do have some
of those. Jesus Christ always useful to have, Molly important stuff.
Speaker 2 (20:07):
Well, I'm glad you got yourself a little treat.
Speaker 4 (20:09):
I think that's important these days.
Speaker 3 (20:11):
A little treat, Yeah, sort of.
Speaker 2 (20:12):
One of my guiding principles in this increasingly awful world
is if you can get a little treat.
Speaker 4 (20:17):
You should get a little treat.
Speaker 3 (20:19):
Yeah. One of my guiding principles is like, whenever I
decide I'm depressed and I'm going to like do retail therapy,
just just pick a pick up a new kind of weapon,
a kind of weapon I don't have already. I got
a rungu the other day, which is a kind of
stick that you beat people with. You know, I'm making
sure that I'm like diversified my portfolio.
Speaker 2 (20:41):
I was thinking more like sometimes at Kroger they have
a new flavor of chips. But your thing's cool too.
Speaker 3 (20:47):
Mm hmm. It's good. It's good. Chips can be a
weapon anyway. But let's move back to the subject.
Speaker 2 (20:54):
Back to the courthouse. Right, the defense in this case
was right about one thing. I mean, they didn't say
very much. They didn't actually put on a case. They
put on no evidence and no witnesses. But he spoke
a few times, right, the attorney. He spoke a few times,
And in his closing defense attorney Peter Fraser said he
didn't have to put on a case because the prosecutor
made his case for him. The counter protesters could not
(21:16):
be intimidated. Now that means what he said, right, the
counter protesters in this case, they couldn't be intimidated because
they opted into this. The protesters brought this on themselves.
Their mere presence in this public space expressing their right
to protest was a waiver of their right to safety,
and they consented to whatever happened after that, and they
(21:38):
couldn't be victims of anything. Right, They wanted this. They
chose to be there, they knew the Nazis were coming.
And the prosecutor's failure to rebut this, to actively push
back against the idea that entering this space with some
sort of agreement to mutual combat right, that the failure
to push back on that at all can only be
(21:59):
seen an agreement they allowed. The court and the defense
and the judge himself said, well, no one was hurt,
and they failed to call witnesses who were hurt because
people were hurt.
Speaker 3 (22:11):
Yeah, yeah, that seems like a massive, like disqualifying oversight.
Speaker 4 (22:17):
They you know, they could have find sometimes.
Speaker 3 (22:19):
Especially with anarchists defendants, that could be hard to get
people who are willing to testify that I imagine you
can find some people in this case.
Speaker 4 (22:27):
Right.
Speaker 2 (22:27):
So the thing is is I acknowledge that there are
many of the victims and many of the witnesses who
have chosen not to participate in this process.
Speaker 4 (22:35):
Right.
Speaker 2 (22:35):
First of all, I'm not saying it would be good
if this happened, but technically you can subpoena them anyway.
Speaker 1 (22:41):
Right.
Speaker 2 (22:42):
There are people in this case who would have cooperated
had they been called. People like Alan Groves, who in
twenty seventeen was a dean at UVA who was burned
by the flames, or UVA librarian Tyler McGill, who suffered
a catastrophic stroke after being struck in the neck by
a torch.
Speaker 3 (23:00):
Folks Free advice There.
Speaker 2 (23:02):
Prosecutors they subpoened, but did not call my own friend God,
one of the counter protesters there that night, whose testimony
about being pepper sprayed put Christopher Cantwell in jail. They
did not call Devin Willis or Natalie Romero, who were
plaintiffs in the civil lawsuit and have already proven their
ability to testify with incredible courage and clarity about being
kicked and punched as they were trapped by the wall
(23:24):
of flames. In the civil trial, Devon recalled the moment
he realized he had been doused in lighter fluid. He
thought that they were going to burn him alive. He
was nineteen years old, and he testified that all he
could think about was that he had so much to
live for and he had to find a way out.
And Natalie, she testified about being trapped, about how small
(23:48):
she felt at the center of the screaming mob, and
that she thought she would be burned to death as
she covered her face and her head from the rain
of fists, and she described that she didn't really understand
the effects of pepper spray. She was a college student.
She'd never been pepper sprayed before. When she got home
that night, she sat down on her shower to cry,
just trying to process the experience of nearly being killed
(24:12):
by a crowd of Nazis, and the hot steam reactivated
the chemical irritants, burning her eyes and skin all over again.
They didn't call the people who were hurt, and they
let the jury think that there were none and the
only actual witnessed No, you go ahead.
Speaker 3 (24:31):
That's just I just such a dereliction of duty, Like
it's such a frustrating like it's not hard, like this
is not secret information that you're privy to because of
your deep Antifa connections. You can just like google this.
This is like thirty minutes of reading to have a
couple of those names.
Speaker 2 (24:47):
At least the federal court transcripts of this testimony exist,
they're free.
Speaker 4 (24:53):
I already paid for them.
Speaker 2 (24:57):
You know. And at one point when the judge said,
I mean, this was out side the presence of the
jury when the judge said it. But the judge said, well,
you don't at no one was hurt. And I'm sitting
in the courtroom next to someone who was hurt, right,
And I'm just like, I embarrassed to be in this
room with these people who are behaving this way.
Speaker 1 (25:17):
You know.
Speaker 2 (25:18):
The only actual witness to and victim of this crime
that they put on the stand at all was Emily Gresenski,
and this was not her first time on the witness
stand in that courtroom. She also testified against Christopher can't
well for pepper spraying her that night, and she handled
it well, she's testified before. She's good at it, yes, unshakable.
But a witness can only answer the questions they're asked.
(25:41):
A witness can't put on their own evidence. A witness
can't tell you a story. A witness can't do anything
other than give short answers to questions. Right, So even
the best witness is only as good as the questions
they're asked. And they failed to elicit from her the
most important part of the story, what actually happened at
(26:01):
the statue. So a lot of the evidence they put
on with her on this because I don't want to
get too law in order about this, right, But you
can't just put on evidence, right, you have to have
a witness on the stand to testify to it. You
can't just show stuff.
Speaker 3 (26:16):
It's not a conversation. Like somebody can't just like raise
their hand in the middle of this and be like,
well I got actually I actually did get hurt at
that thing. Like, That's not the way court cases were.
Speaker 2 (26:25):
And so they used much of Emily's time on the
stand to show two videos. One was a video she shot,
so it makes sense to have her testify to this
video that she recorded, right. So she was live streaming
from the very beginning right down where they were preparing
and lighting the torches, and then she was following them
along on the march, just sort of documenting what was occurring.
Speaker 4 (26:44):
And that's what she thought.
Speaker 2 (26:45):
She was there to do, right, She's just documenting that
this march is taking place. She's thinking, Oh, they're going
to give some speeches. I'll record the speeches so people
can sort of see what this event was about. She
did not go there intending to become trapped and assaulted, right,
So much of her time on the stand was sort
of answering questions about this video as it played, But
they also had her answer questions about a video that
(27:07):
was recorded from inside the march, and I'm I'm not
sure how effective it was to just show thirty minutes
of video of guys walking, and the defense leaned really
heavily into the idea that, well, obviously she wasn't scared.
Look at her, right, So she's clearly not intimidated. She's
really close to this march, recording it. And without a
(27:28):
concrete theory of the case that establishes that, well, no,
this isn't where the crime is happening, right these guys
walking isn't the crime. She's not intimidated yet, that's that's
not happening right now. So without that sort of concrete
explanation for the jury that the crime occurs at the end,
they might take away from that that will, Oh, yeah,
she doesn't really seem scared here, right, that this whole
(27:51):
part where she's walking and narrating, she doesn't really seem scared.
And leaving aside the finer philosophical point that you can
be brave even if you're scared, her testimony was really
clear here she wasn't afraid for her life. Then she
testified that she arrived at the plaza where the statue
stands before the marchers did. Right, So they are marching
(28:12):
through UVA grounds and it ends in this sort of
plaza out in front of the rotunda where a statue is,
and she got there before the march did, and she
saw that the group of counterprotesters was very small, and
she knew what was coming, right. She watched these guys
get ready. She watched them put on their helmets and
their weighted gloves and their brass knuckles and lighting their torches,
(28:32):
and you know, guys are wrapping their hands like they're
getting ready for an mma fight. So she knows what's
coming and they don't. And so she looks at this
small group of young people and she's afraid for them.
She's afraid for their safety. She feels a duty to
these people, they're mostly college students, and because you can
be brave even if you are scared, she stayed with them,
(28:56):
and once they were surrounded by this increasingly violent mob,
once she was live streaming her own assault. Of course
she was in fear of bodily harm. She was being harmed, right,
There's not a debate about whether someone might be in
fear of bodily harm. You're watching them get harmed.
Speaker 3 (29:14):
Yeah, but if you aren't scared of that, then it
doesn't like that. That's I guess kind of the problem.
It should be like, would an average like a normal
person consider this to be an objectively threatening situation?
Speaker 4 (29:31):
And that is the standard.
Speaker 2 (29:33):
Yeah, this is not a crime that actually requires a
complaining victim to say I did feel this way. It's
a really it's what's called a reasonable person standard. Right,
So what a reasonable person in this situation feel this way?
The answer is yes, okay, right, the reasonable person would
be afraid, afraid of getting hit in the face.
Speaker 3 (29:53):
Yes, I would say so.
Speaker 2 (29:55):
And there was a lot of argument pre trial in
this case and some of the others that like, well,
you know, what does that even mean? What does it
mean for a reasonable person to be afraid. I mean,
that is a valid philosophical conversation, but it is not
a valid rebuttal to the idea of this charge because
that is the standard for many of the of the
statutes in our code. Right that like, it's the legal
(30:16):
standard for assault.
Speaker 3 (30:18):
Right.
Speaker 2 (30:19):
But again, much of the time she's on the stand,
they're just showing thirty minutes of people walking, and there
was so little time spent showing what happened when they
got there. They could have shown the jury the moment
of the video where at the top of the steps
to the rotunda, right, So they're at the top of
these stairs looking down at that plaza below, and these
(30:40):
counter protesters are just coming into view to the for
the first time for the marchers, and Daniel Borden looks
down and sees them and yells, you're outnumbered, Antifa, watch
out leftist scum. And now it matters that that's Daniel Borton,
because Daniel Borden.
Speaker 4 (30:58):
Was with Jacob Dix. They came together.
Speaker 2 (31:00):
Yeah, they're friends from back home in Ohio. Daniel bordon
is a name you might remember because the following day
he nearly beat a young black man to death. So
you know, he's looking down into the plaza and seeing
these people and stating the intent. Right, He's saying, like,
you know, watch out, Like I see you. There's more
of us than there are of you. You better watch out.
That is intimidation, right, Yeah, seems like it.
Speaker 3 (31:24):
If I'm the judge, the case has been made.
Speaker 4 (31:28):
But they did not.
Speaker 2 (31:29):
I'm not though they didn't highlight this portion of the video.
They just this long, uninterrupted presentation of video evidence without
any sort of discussion of what any of these moments meant.
Because moments after that, after Daniel Borden yells you're outnumbered Antifa,
he shouldered a shoulder with Dix. A few seconds later,
they're walking clockwise around the statue. They're starting to form
(31:51):
that circle, that ring that would trap the counter protesters in.
Borden looks at Dix again and says, why can't we
confront them? And then they continue to walk side by side,
taking their place in that ring of men, closing off
any path to safety. And you can see in photos
that Jacob Dix is face to face with some of
the counter protesters. He's not just in this sort of
(32:13):
mob of people, in this sort of nebulous zone he's
in the inner ring of people who are choosing to
physically trap the counter protesters. That is the intent that
they needed to show the jury, and they didn't rebut
the conjecture that he was only here because he loves
Confederate statues, right, he has Confederate heritage, he cares about
(32:34):
the monuments.
Speaker 3 (32:35):
Yeah, this is like prosecuting a drunk driver and having
having a breathalyzer test and just not introducing it into evidence,
being like, nah, I'm just going to be like, you know,
vibes wise, it seems like he was probably drinking. Yeah,
that's what it was. It was so irresponsible.
Speaker 2 (32:54):
The vibes were bad, and they were the vibes were bad,
but that's not the legal standard.
Speaker 3 (32:58):
Vibes are terrible, but that's not what you should be.
You have a much better case to make based on
the evidence easily available to you.
Speaker 2 (33:06):
If there was if none of this evidence existed, if
this was all they had, maybe don't take it a trial.
But this evidence was right there for them. The moment,
the moment where they're looking down the steps that's in
the video they played.
Speaker 3 (33:20):
I feel like there were at least six different people
the prosecutor could have just like emailed and they would
have basically put together the whole case for this person.
Speaker 2 (33:29):
It's just so available, right, you know. So the defense says, well,
you know he has Confederate heritage, you see here because
of the statues. They could have rebutted that by showing
the jury his discord posts where he was helping organize
housing for at least eighty other Unite the Right attendees
at a group of airbnbs which he called the Eagles
Nest and from which he was helping organize rides to
(33:51):
the rally in what they were calling Nazi uber. That's
not about your Confederate heritage, is it. The Eagles Nest
was like Hitler's vacation house for people who aren't up
on their their Hitler lore.
Speaker 3 (34:04):
Yeah, their hit lower if you will, their hit lore.
Yeah yeah, I'm not proud of it. But that happened.
Speaker 2 (34:12):
That took me out for a second, And they didn't
show him attending the Nazi rally in Pikeville in April
of that same year. There's a photograph of him standing
shoulder to shoulder with members of the Traditionalist Worker Party.
Right arm extended a forty five degree angle, palm down.
I think that says something about why he was there, right,
(34:33):
and they didn't show his discord post about how he
was getting really hyped about the rally, writing nothing can
replace the feeling you get at a white nationalist rally.
I don't know the evidence exists, right, and once you
get to the base of the statue, that intimidation element
required for the charge is clear. We know people were
(34:54):
in reasonable fear of bodily harm because their bodies were harmed.
The evidence of intent is not hard to fight. The
marchers saw the small group of counter protesters as they
descended those stairs. They saw them from above, and they
chose to proceed and surround them, knowing they vastly outnumbered them.
They hooted and cheered, screaming We're coming for you. As
(35:15):
they encircled the statue. There were assigned marshals for the march,
directing people in a clockwise fashion around the statue to
form the circle. This was not an organic event, and
as the ring closed, Richard Spencer's bodyguard, a now former Woburn,
Massachusetts police officer, John Donnelly, can be heard in one
(35:37):
video saying that we need to fill in over here
to block these guys off. This was an intentional act.
The defendant himself is visible in these videos as he
moves down the steps across the plaza and winds his
way around the statue, and as the fighting breaks out,
he holds his position in the inner ring of torch
(35:57):
bearers who have these people trapped unable to escape the violence.
It doesn't matter that he did not commit these acts
of violence. He was holding the line that trapped people
inside of it, and his intent in that moment is inescapable.
But the jury doesn't know that. It's just an incredible failure.
Speaker 3 (36:20):
Honestly, Yeah, yeah, I'm glad the case got thrown out.
Is it possible that the next person to be prosecutor
in this will have an IQ that rises above room temperature?
Speaker 2 (36:33):
So I asked several lawyers about some of the finer
points of what happens with a mistrial, and I got
different answers from all of them, because this is sort
of like everything in this case is just a little
bit fucked up. Right. We have a substitute judge, we
have a special prosecutor, we have a mistrial, We have
just like so many things that kind of mess it
(36:53):
up a little bit. In the event of a mistrial,
the prosecutor has the option to try the case again, right,
that's always the case. There's a mistrial, the prosecutor can say, eh,
I'm gonna let it go. I'm just gonna let it go.
Or they can say no, we're gonna bring it again.
We're gonna bring it again, and they don't have to
bring it the same way. They can bring in different evidence,
different witnesses. It's sort of a mulligan for everybody.
Speaker 4 (37:15):
Right. What's not one hundred percent clear is.
Speaker 2 (37:17):
Whether the same special prosecutor tries it again or if
it sort of goes back to Roulette. Several lawyers agreed
that it would be the same prosecutor. I believe her
office is under that impression. So right after the mistrial
was declared, Shannon Taylor, the special prosecutor, said she does
plan to try it again. That could just be bravado.
It's unclear. There's a hearing date set for August for
(37:40):
there's still some pending motions in the case, and so
the funniest part is that there's still a pending motion
to dismiss from the defense. So technically, even if the
prosecutor says yes, I'm bringing this case again. I'm doing it.
The judge can be like, actually, I'm dismissing it. So
it could go a lot of ways right now, But
at this point I'm not super hung up on the
(38:01):
particularities of this defendant, right. I think this mistrial teaches
us something sort of more generally about these cases and
the other torch cases specifically, obviously, but I think more generally,
what does it look like for criminal charges to be
a roadblock in the path of people involved in white
supremacists organizing. You know, at the end of the day,
(38:21):
whether or not some guy from Ohio serves four months
of a six month sentence on a CLASSICX felony, it
doesn't really matter, right, Like, this isn't this isn't an important.
Speaker 3 (38:30):
Yeah, it's whether or not anyone is actually scared off
from organizing.
Speaker 2 (38:36):
Right, Like not to use the language of the prosecutor,
you know, the Master's house, the master's tools, this, that,
and the other.
Speaker 3 (38:41):
But part of part of cott into that logic, right,
be honest.
Speaker 2 (38:46):
I mean he used those tools for a reason, right,
But yeah.
Speaker 3 (38:49):
I mean he used those tools for a reason. Like
if you couldn't bring down the Master's house with the
master's tools. Then what were all of those formerly Czarist
troops doing overthrowing the government with rights the Czar gave them?
Speaker 2 (39:01):
You know, you know, part of what prosecutors talk about
when they talk about charging, maybe not these cases in particular,
but just generally speaking, is that bringing cases is intended
as a form of deterrence for everybody. Right, that what
happens to this guy is not the most important. But
maybe some other guys see this and think maybe that's
not a good idea. And so I think in some
(39:22):
of these cases, though, you can see, you know, maybe
that this charge is interrupting a more significant pattern of behavior. Right,
So nailing Thomas Rousseau on a felony would obviously change
the trajectory for Patriot Front. I don't know if that
would I don't know what that looks like at the end,
but it certainly changes the trajectory. So Thomas Rousseau is
set for trial in the fall. So he has been charged,
(39:45):
and I think that will be an interesting case to
follow because he has the same lawyer. And you know,
if they end up charging Jason Kessler, that would just
be really funny. You know, there's a lot of possible
outcomes here. If they'd arrested these guys in real time
that night, maybe the rally the next day would be different.
If the cases had been brought six years ago, you know,
maybe certain arcs of history would have bent differently. It
(40:06):
would have broken some momentum, or discouraged some movement activity,
or broken bonds between people who met there. Some of
the guys who were there and could have been charged
in real time went on to do some real damage
in their personal lives and their communities. But I'm not
sure that's a basket I want to put my eggs into. Right,
if a court case takes a fascist out of the game, right, right,
(40:28):
that's some kind of harm reduction, But it's not something
you could count on, and honestly, it doesn't consistently reduce
harm in the long run. You just can't get lost
in the sort of what ifs of you know, what
if the system worked better to actually help us, because
it doesn't. That was never on the table. It's not
like I'm saying, you know, well, we needed a conviction
in this case because the courts are the ones who
(40:50):
are going to protect us by putting this man in jail. Briefly, right,
that's that's not the case. I think the lessons are
immediately instructive to the prosecutor who tries the next one. Obviously,
you know, watching the game tapes play better next time.
You know, if they're going to put these cases on,
they need to do it properly. I would rather see
this not happen at all than watch it get fumbled
like this, because that's just a victory for them.
Speaker 3 (41:12):
Right right, Yeah, And.
Speaker 2 (41:14):
It's a sharp reminder that the courts are not equipped
to interrupt fascism or rein in white supremacy. That's not
what they were built for. That, it's not what this
tool does. You are trying to screw it in with
a hammer, because faced with a really clear opportunity to
do that, the prosecutor shied away from them. You know,
the state is not the secret weapon that is going
(41:35):
to stop fascism for us or protect us from the
fascists who want to stop us from stopping them. You know,
at best, it is a banana peel on their Mario
Kart track. You know, it is interesting to watch this
play out, but I don't think it is some I
don't think this will bring any sort of repair. Yeah,
but it might ruin some guy's day, and I'll be
(41:57):
there when it happens.
Speaker 3 (41:59):
You know, I don't think it's worthless obviously. I think
in fact, one of the things I will point out,
since this is kind of ending on a doomer, and
I think the I think the legal onslaught that was
launched by the survivors, shall we say mm hm at
Charlottesville against organizers and whatnot is a big part of
why a lot of that most of that crew stopped
(42:22):
being relevant, like it did in fact damage them. Now
did it disrupt and stop fascism Nation? Why? Of course not.
That was never in the cards, right, Like you're talking
about trends and forces that are too big for a
handful of very dedicated leftists to stop by suing some asshole.
But like, you know, one thing people get wrong a
lot is saying like, oh, you know, when a fucking
(42:44):
what's his name got punched, that really knocked him out
of public life, and it's like, no, Charlottesville came after
that fucker got punched, Like it was the series of
court cases that ruined his life really to an extent.
Speaker 2 (42:56):
And I think there's an important conversation to be how
about what it means to win, Right, Because if you're
a lawyer, if you're a prosecutor, winning is really black
and white. You know, win a judgment, you win a conviction.
But that's not how I view the courts as a
tool in this process. Right That, like winning a conviction
or actually getting paid out that judgment, that's not the
victory we're looking for. Right That, this is a tool
(43:17):
for sort of chiseling away, and no single step gets
you there. So I wouldn't say that these cases are
not useful or they're not interesting. And that's why that
this isn't a huge disappointment, right that, Like what happens
to any of these individual people isn't the point.
Speaker 4 (43:35):
This is just part of a process.
Speaker 3 (43:38):
Yeah, So I don't know, keep that in mind as
you look at this stuff, like, because it's very easy
to look at one case and just be like, oh,
it's doomed. There's no point in trying any of this.
It's like, no, the actual the law fair that people
have launched in response to Charlottsville has been a successful action, Like,
if you want to look at it kind of in
(44:00):
military terms, it has been an offensive that has broadly
achieved a number of its goals.
Speaker 2 (44:05):
The Signs Becassler lawsuit against the Unit the Right organizers.
It's sort of established this playbook that's now being used
by others. There are similar similarly structured lawsuits now being
filed against other white supremacist groups, against White Lives Matter Ohio,
against Patriot Front. And it is effective, and again not
in the sense that the lawsuits will extract money. Judgments
(44:27):
well that.
Speaker 3 (44:27):
Everyone's going to go to fucking prison, but it makes
their lives miserable.
Speaker 1 (44:30):
Yeah.
Speaker 3 (44:31):
I just don't want people to walk away being like, well,
there's no point in fighting this way, because there actually is.
It works very well. It's just not a silver bullet.
Speaker 4 (44:40):
It's not a sports ugly.
Speaker 3 (44:41):
And messy and hard. And I will end at least
by saying, you know, I know we have a lot
of anti electoralist type people here. The one place you
absolutely should vote, if that is a thing where you live,
is elections for local judges, because that is a great
way to at least reduce the odds that you're friends
go to prison. I know people I have people I
(45:03):
love who are not in prison because the judge they
happened to draw wasn't a piece of shit, and you're
really just hurting yourself if you don't, if you have
the option to pick a judge who sucks less, and
you don't try to. That's that's where I land on
that shit.
Speaker 2 (45:18):
There's a lot that we can do, and none of
it's going to do it all. But Yep, in the meantime,
I will continue spending whole days on that horrible wooden
bench and I'll let you know how it goes.
Speaker 3 (45:29):
Yep. Thank you Molly for continuing to engage with a
system that is not very fun to engage with. Necessary too, well, everybody.
That's the episode. Good to hell, We love you.
Speaker 1 (45:47):
It Could Happen here as a production of cool Zone Media.
For more podcasts from cool Zone Media, visit our website
cool zonemedia dot com, or check us out on the
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You can find sources for It Could Happen your updated
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Hosts And Creators
Robert Evans
Garrison Davis
James Stout
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