The jury empaneled to hear a federal civil conspiracy case could find that the defendants devised a plan to come to Charlottesville, Va. "with the idea of provoking a fight and applying an overwhelming response" based on the evidence presented so far, Judge Norman K. Moon told defendants Richard Spencer and Christopher Cantwell on Tuesday.
Spencer and Cantwell both entered motions to dismiss after the plaintiffs -- nine people who suffered physical injuries and emotional distress in a lawsuit brought by Integrity First for America -- rested their case on Tuesday.
Judge Moon declined to dismiss the claims against Spencer, a prominent white nationalist leader at the time of the 2017 Unite the Right rally, and Cantwell, neo-Nazi podcaster who brought guns, knives and pepper spray to Charlottesville for the rally. Moon told the two men that it will be up to the jury to decide whether they conspired to commit racially motivated violence in Charlottesville.
The judge cautioned Spencer and Cantwell that they seemed to not appreciate how low the bar is for proving a conspiracy.
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"If you know that people are planning [racially motivated violence], and you join in with, you don't have to do much — just join in and be there," Moon said. "You have a misunderstanding, I'm afraid, of what the law of conspiracy is."
As evidence of conspiracy, Moon singled out a phone text exchanged by Cantwell and Spencer in the days leading up to the rally. Cantwell was concerned that the permit for the rally might be withdrawn, and what that might mean for his plans to exercise his permit to carry a firearm. Moon noted that Cantwell wrote that he was "willing to risk a lot for our cause, including violence and incarceration" and that he said he wanted "to coordinate to make sure it's worth it for our cause." He also noted that Spencer responded: "It's worth it, at least for me."
"That statement, along with other evidence could be taken to mean that Spencer and Cantwell were willing to risk violence for their cause but wanted to coordinate it ahead of time," Moon said.
Reciting a litany of evidence presented by the plaintiffs, Moon provided a response to Cantwell's motion to dismiss. The judge noted that Cantwell "admitted he seriously advocated for a white ethno-state and he advocated for violence on his podcast," while referencing at least two instances in which the defendant promoted the genocide of Jewish people, advocated the use of chemical and biological weapons, and said that immigration made him "want to bash people's skulls open."
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Moon took note that Cantwell purchased pepper-spray canisters in Charlottesville and assaulted counter-protesters at the University of Virginia on Aug. 11.
"Cantwell marched in a torch march; he pepper-sprayed and beat up someone," Moon said. "You've got an explanation, but there's no self-defense after you're not in danger. Because someone hits you, that doesn't give a right to beat them within an inch of their life."
Later, when Cantwell put on his defense case, he walked the jury through two videos depicting the torch march, pointing out various counter-protesters whom he assaulted or claimed had threatened him. Cantwell suggested during his testimony that his actions were taken in self-defense.
One of the videos presented as evidence by Cantwell was filmed by Emily Gorcenski, a data scientist.
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"This is the transgender person that was filming," Cantwell said at one point. "I have no interest in causing this person any kind of harm. If this is the kind of thing you're making it out to be, this person would not be safe in this crowd."
During cross-examination, plaintiffs' counsel Michael Bloch reminded Cantwell that he had previously pleaded guilty to two counts of assault and battery in state court related to his conduct at the torch march. One of the victims in the case that resulted in Cantwell's guilty pleas was Gorcenski.
Spencer took a different tack while putting on his defense case.
Spencer replayed an audio recording capturing him exploding in a rage-filled rant peppered with anti-Semitic and racial slurs hours after the deadly car attack that took the life of Heather Heyer. While Spencer characterized his outburst as being representative of "the worst part of me," he suggested that it undermined the theory that he went to Charlottesville seeking violence.
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"I never imagined that what was going to happen was going to happen," he testified. "The idea that we planned this chaos is undermined by my visceral reaction at the time."
In another significant development on Tuesday, Judge Moon instructed the 12 jurors that they should deem as true that two defendants, Elliott Kline and Robert "Azzmador" Ray, entered into an agreement with one or more co-conspirators to engage in racially motivated violence. Moon explained to the jurors that the instruction was the result of evidentiary sanctions against the two defendants because they failed to comply with their discovery obligations.
Ray was a contributing writer for the neo-Nazi website Daily Stormer from 2016 to 2020, while Kline was a leader of Identity Evropa from April 2017 through August 2017.
The jury also heard new testimony from Cantwell, as well as testimony from Benjamin Daley of the defunct neo-Nazi group Rise Above Movement that helped bring into focus Kline's role in organizing and promoting violence at Unite the Right.
Daley and three other members of Rise Above Movement — Michael Miselis, Thomas Gillen and Cole White — previously pled guilty to federal charges of conspiracy to riot related to their conduct at the Unite the Right rally.
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The factual basis for the plea agreement reached by four men from southern California describes Rise Above Movement as a "combat-ready, militant group" of white nationalists that held hand-to-hand combat training for members "to prepare to engage in violent confrontations with protesters and other individuals at purported 'political' rallies." After clashing with counter-protesters at a rally in Huntington Beach, Calif. on March 25, 2017, Rise Above Movement members traveled to a violent confrontation with leftists in Berkeley, Calif. on April 15 that would later be cited by Jason Kessler as a template for Unite the Right.
In his video deposition, which the jury heard on Tuesday, Daley testified that the Rise Above Movement fighters met members of Identity Evropa, including founder Nathan Damigo, in Berkeley on April 15. After the formal event at Martin Luther King Jr. Civic Center Park ended, rally attendees and counter-protesters poured into the surrounding streets. A video of Damigo punching a counter-protester spread earned him fame within the alt-right movement and the praise of Spencer, while Rise Above Movement members punched, stomped, kicked and pepper-sprayed counter-protesters, according to the factual basis for their plea agreement.
Daley committed to attending Unite the Right in late July 2017. He bragged on a Discord server used to organize the rally that he and his fellow Rise Above Movement members were "experienced at these events" and that "all were in Berkeley riots," according to court documents.
Daley and three other members attended the Aug. 11 torch march at the University of Virginia, and Daley admitted in a 2018 Facebook conversation that he "hit like 5 people," according to the factual basis document. During his testimony on Tuesday, Christopher Cantwell identified Daley in a video depicting the two men involved in the assault on counter-protesters who were surrounding the Thomas Jefferson statue.
The Rise Above Movement members showed up in downtown Charlottesville on the morning of Aug. 12 with their hands wrapped in athletic tape. Pushing through a group of counter-protesters to get to Emancipation Park, "RAM members collectively pushed, punched, kicked, choked, head-butted, and otherwise assaulted several individuals, resulting in a riot" according to the factual basis document. Daley acknowledged by signing the factual basis document that he grabbed, punched and kicked four different counter-protesters during the melee. In one instance, Daley grabbed a counter-protester, and he and Kline together threw her off the sidewalk.
"Was there a moment on Aug. 12, when you choked a counter-protester and you and Elliott Kline threw her off the sidewalk," plaintiffs' counsel asked Daley after showing him video of the incident.
Daley invoked the Fifth Amendment to avoid self-incrimination.
"She has blood streaming down the side of her face," plaintiffs' counsel said.
"It would appear so," Daley agreed.
The plaintiffs' counsel asked Daley if he agreed that "the violence that you were a part of" at Unite the Right "was not self-defense."
"I'm required by the terms of my plea agreement to say this, and yes, it is true," Daley replied.
During his testimony, Cantwell played a video that he recorded of a so-called "leadership meeting" prior to the Aug. 11 torch march, highlighting his efforts to promote cooperation with law enforcement. In the video, Kessler can be heard informing the group that news of the planned torch march had leaked, and they should decide whether they wanted to go through with the plan.
"If we're going to do it at all, I want the cops involved," Cantwell said.
Cantwell's recording of the leadership meeting and Gorcenski's livestream video of the torch march — both offered as evidence by Cantwell — captured Kline giving the marchers instructions for volunteers to form an outside "security" flank on either side of the torch march. If they saw counter-protesters, Kline instructed, the security volunteers should move between them and the torch marchers.
During cross-examination, Cantwell identified Kline giving another set of instructions during the leadership meeting.
"At five o'clock we're going to start bussing people over," Kline said. "Anyone who is a fighter needs to be here at 5 a.m."
Defendants are expected to finish making their case tomorrow, and the parties agreed they will give closing arguments on Thursday. The trial is scheduled to run through the end of the week, and Judge Moon expressed concern that the jury might not have enough time to deliberate.
"I don't want the jury to rush through to get through this thing on Friday," he told the parties. "I think the jury's going to be tired and want to get out of here."
The plaintiffs agreed to cut their closing argument down to two and a half hours to keep the trial on schedule. The defendants will have three and a half hours, to be divided between five lawyers, along with Spencer and Cantwell as the two pro se defendants.
Alluding to the way the defendants have undercut one another during the trial, Cantwell complained that the allotment of time puts the defendants at a disadvantage.
"I don't think all the defendants are similarly situated as the plaintiffs," he said.
Judge Moon disagreed, noting that the plaintiffs have to talk about individual damages.
"They have one theory to pursue," Cantwell said.