A jury in a federal civil case to determine whether the dozens of white power extremist leaders and organizations involved in the 2017 Unite the Right rally were liable for conspiring to commit racially motivated violence has now heard all the evidence as the four-week trial in Virginia draws to a close.
Christopher Cantwell, a neo-Nazi podcaster who is representing himself, and the lawyer for two League of the South defendants wrapped up their cases on Wednesday morning by calling witnesses whose testimony they hoped would deflect blame onto left-wing counter-protesters.
Cantwell pursued a fruitless quest to get two plaintiffs who were victims of the racist violence to identify various other counter-protesters as part of an effort to conjure a conspiracy theory involving "Antifa" provocateurs who in his imagination instigated violence when white nationalists swarmed around a small group of counter-protesters, punched and kicked them, and flung lit torches at their feet on Aug. 11.
Cantwell also sought through his questioning of the witnesses to lay the groundwork for another conspiracy theory that would make members of a peaceful antiracist march responsible for co-defendant James Fields hitting them with his car after the rally ended with a state of emergency the following day.
Bryan Jones, representing the League of the South, its president Michael Hill and chief of staff Michael Tubbs, called Richard Hamblen to the stand.
Hamblen, who identified himself as the chairman of the League's Tennessee chapter, gave testimony about his involvement in a fight with counter-protesters as League of the South members and others were leaving the rally. Judge Norman K. Moon expressed puzzlement about Hamblen's testimony, questioning how it was relevant to the specific acts of violence attributed to any of the defendants.
Cantwell questioned Romero and Willis about some half-dozen counter-protesters who were present at the Aug. 11 torch march or the antiracist march that was violently ended by Fields' car attack. One by one, Willis and Romero testified that they did not recognize or know the other counter-protesters, with the exception of Emily Gorcenski, a data scientist who was assaulted by Cantwell at the torch march.
Cantwell's decision to call the two witnesses only succeeded in further implicating him in the violence that took place during the torch march. When the plaintiffs' counsel objected to Cantwell entering video into evidence without a proper foundation, Cantwell played it for Romero so she could identify the portion where she saw herself. While reviewing the video, Romero asked Cantwell: "Is that you? Go back a frame."
"That's me hitting this guy," Cantwell confirmed, referring to an unidentified counter-protester.
Romero told Cantwell that looking at the video she wondered if he had hit her, too.
"You're telling me that I punched you?" Cantwell asked.
"I can't say," Romero responded. "We were getting sideswipes by the fight that was right next to us."
Apparently forgetting his original objective of gleaning the names of counter-protesters, Cantwell eagerly embraced the new task.
"I've got the clip in slow motion," he told Romero. "Let's try to figure out if I hit you. Sound good?"
Eventually, Cantwell let the matter drop after the plaintiff's counsel objected that Romero had testified that he did not punch her.
The case put on by the League of the South defendants similarly ran aground.
Hamblen testified about getting knocked to the ground during a scuffle with counter-protesters that preceded the brutal beating of DeAndre Harris in the Market Street Parking Garage on Aug. 12. The plaintiffs had previously presented evidence that a Florida member of the League of the South was involved in the beating. Hamblen testified that Harris verbally taunted him and attempted to trip him prior to the beating. Moon questioned the relevancy of the testimony, noting that Harris is not a party to the case.
Beyond Hamblen's testimony about his brief encounter with Harris, he told the court about a fight that had even less bearing on the case, and arguably hurt the two members of his organization who are defendants.
"These three individuals in black tried to take my flag," Hamblen testified after watching a video of the fight. "I resisted and they beat me down." He added that one of the counter-protesters punched him in the head.
During cross-examination, plaintiffs' counsel confronted Hamblen with an email he sent to Hill acknowledging that he "lowered the staff toward her in the earhole of her helmet" after the counter-protester grabbed his flag. Hamblen acknowledged on the stand that the email showed him expressing concern that he could face criminal charges for his role in the fight.
Speaking to the parties outside of the presence of the jurors, Judge Moon summarized the key questions the jury will have to decide.
"The theory is that the defendants conspired by planning to come to Charlottesville with the idea that Antifa or protesters would be provoked into committing acts of violence, and that would justify the defendants taking retaliation against those persons that caused the violence," Moon told the parties. "I think the jury can infer from all the evidence that… the idea was to provoke violence, but respond in a greater degree than was necessary for self-defense…. I think there's sufficient evidence if the jury believes it that they could arrive at a verdict against the defendants."
Moon suggested the verdict will likely hinge on the jury's determination about the degree to which the violence at Unite the Right, particularly Fields' deadly car attack, was reasonably foreseeable by the defendants.
"The question would be if you anticipate a violent reaction, was Fields' conduct foreseeable?" Moon asked. "There had been talk on the internet about whether someone could drive a car through a crowd of demonstrators…. There's evidence that a number of defendants congratulated Fields. That supports the conclusion that such conduct by Fields could have been anticipated. It may not have been planned by anyone, but it was foreseeable that violent acts would happen."
Before recessing court at 4 p.m. on Wednesday, Judge Moon gave the jurors a series of instructions. He told them they are permitted but not required to infer that defendants Elliott Kline, Robert "Azzmador" Ray, Matthew Heimbach, Vanguard America and the National Socialist Movement intentionally withheld or destroyed documents and electronic communications because they contained evidence that they planned to conspire to commit racially motivated violence.
On Tuesday, Moon gave the jury a similar instruction that they should take as true that Kline and Ray entered into an agreement with one or more co-conspirators to cause in racially motivate violence because they failed to cooperate with their discovery obligations, which is the central claim of the lawsuit.
Earlier in the trial, the jury heard testimony by video deposition from Benjamin Daley and Vasilios Pistolis, respectively members of Rise Above Movement and Atomwaffen, who committed assaults at Unite the Right. Daley and Pistolis repeatedly refused to answer questions, invoking their Fifth Amendment right to avoid self-incrimination. Moon told the jurors they may consider Daley and Pistolis' refusal to testify as an adverse inference against defendants if they can establish a sufficient association.
On Wednesday, Judge Moon also told the jurors that they might have noticed that Fields, who is currently serving life in prison for the murder of Heather Heyer, did not testify. Moon explained that Fields had refused to testify in a properly noticed deposition, and as a result of his misconduct the court sanctioned him by prohibiting him from testifying in his defense at trial to "level the evidentiary playing field."
Judge Moon told the jury that closing statements from the parties are likely to take most of the day tomorrow, and they should plan to begin deliberations on Friday morning.
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