Sines v. Kessler Rush Transcript – Day 3: Jury Selection Cont’d

Charlottesville, VA – The lawsuit against leading white supremacist organizers and groups began trial on October 25, 2021 at the federal courthouse in Charlottesville, Virginia. Attorneys with civil rights nonprofit Integrity First For America are representing victims of racist attacks at the ‘Unite the Right’ rally in Charlottesville in August 2017.

NOTE: Rush transcripts are generated from Unicorn Riot’s live tweets posted in real-time while observing trial proceedings from inside the courthouse media room. Quotations and descriptions written here are not always precise verbatim quotes and sometimes use paraphrasing or shorthand to quickly capture and convey exchanges during court hearings. There may be some errors regarding details like jury numbers, exhibit numbers and dates as well as typos and missing punctuation. These rush transcripts do not capture every single moment, but are our attempt to provide the public with as much direct access to the trial as possible until full court transcripts are made publicly available at a later date.

Unite The Right On Trial:

Rush transcripts: Day 1 | Day 2 | Day 3 | Day 4 | Day 5 | Day 6 | Day 7 | Day 8 | Day 9 | Day 10 | Day 11 | Day 12 | Day 13 | Day 14 | Day 15 | Day 16

Read Unicorn Riot's live tweets from trial proceedings - Day 1 | Day 2 | Day 3 | Day 4 | Day 5 | Day 6 | Day 7 | Day 8 | Day 9 | Day 10 | Day 11 | Day 12 | Day 13 | Day 14 | Day 15 | Day 16 | Day 17 | Day 18 | Day 19

Day 3 – Oct 27, 2021 (Collected from this tweet thread)

Judge Moon just took the bench for day 3 now and says he will decline to issue additional preemptively challenges or ‘strikes’ in regards to the pending Batson motion about a juror who the defense struck but the plaintiffs seek to have reinstated.

Judge Moon yesterday said he won’t be ruling on the Batson motion until after finishing selecting the rest of the jury panel today. A Batson motion is made when one side alleges the other has been using discrimination based on race, gender or other factors when striking a juror.

Judge Moon clarifies that defense also will not get a strike back if the juror they struck gets back on the jury – “It would provide no disincentive for a Batson violation” if strikes were given back after such a violation, he says

“The plaintiffs have made a Batson challenge and there could be more by the end of the selection before the jury is empaneled…” – Judge Moon

Judge Moon asks the defense to “state their collective reasoning” re: the Batson motion issue, notes there are over 20 defendants so it could get complicated. But Moon also says this won’t happen now and will be handled later on a break. The 5th jury panel is about to come in.

Judge Moon: “There are no preemptory strikes left so if we get 3 or 4 people qualified we may potentially have enough”

Roberta Kaplan brings up a “housekeeping matter” – a “unanimous agreement among the parties that we would like to start opening arguments tomorrow morning” and not today – Judge Moon seems to agree

5th panel of jurors getting sworn in now

Potential jurors no. 275, 277, 278, 281, 288, 289, 291, 294, 299, 301, 304 are in this batch

The court clerk is going over the plaintiffs, defendants and counsel to make sure none of the potential jurors are related or otherwise inappropriately connected to them.

Judge Moon is now reading the jurors his boilerplate statement about COVID precautions, wearing masks over nose and mouth, etc

Judge Moon is going summarizing the details of the case for the new jury panel – it’s a civil case by multiple plaintiffs against multiple defendants, “plaintiffs contend the defendants and others conspired to plan racially motivated violence” at Unite The Right…

Jurors are going back to the jury room, will be brought back one at a time for questioning

A few juror’s questionnaires are missing

Potential juror 275 is up first for Voir dire today. He seems to be an older middle aged white guy. Asked about hardship from 4 weeks of jury duty, he says no

Asked about reasons he couldn’t be impartial, 275 says there isn’t any, he’s sent back to the jury room by Judge Moon

Potential juror 277, a Black man, is in for questioning now. Says he has to work several jobs and take care of his family so 4 weeks jury service could be a hardship

Asked if he has enough income to go four weeks without working, 277 says no

Judge Moon is excusing potential juror 277 due to financial hardship

Potential juror 281 is in now, middle aged white man. Asked about difficulty from serving on a jury for 4 weeks, 281 says it would be hard since he “works as a nurse in a long term facility full time”

Judge Moon lets 281 go since he says the medical facility where he works is short staffed

Potential juror 288, a younger or middle aged white guy, is up for Voir dire now. Asked about problems 4 weeks of jury duty could pose, he says his employer would support him serving on a jury and there “would be no hardship”

Asked if he has medical issues preventing him from sitting for hours at a time, 288 says “I think Netflix has prepared me for sitting for hours at a time”

Asked if he can be impartial 288 says “once I swear the oath I’ll just do whatever you tell me to do”

Questions being submitted to the bench for Judge Moon to ask potential juror 288 now

Q: in your questionnaire you said you were concerned about racism but not so much about against whites, do you have any view about whether white people could be victims of racism?

288: it could happen but I think that proportionally speaking the historical and the incidence of racism against minorities and other minority groups is much significantly greater than what might happen to white people but I don’t necessarily believe that it can’t happen

Asked about “all lives matter” 288 says “yes I do believe that all lives matter”

Q: you said that you had a favorable view of antifa?

288: I said it was ‘somewhat’ as to extremely ‘favorable’… I think i recall our nation fighting against totalitarianism during World War 2…do I disagree w some of their philosophical aims of standing against totalitarianism taking root in America…

…yes, but I think there are ways we can all express our beliefs that are legal and just, and resorting to violence or other sorts of things…

Q: what are your views regarding political violence?

288: in some cases its justified and in others it may not be, you just have to look at the evidence and make your best decision

Q: you said you’re favorable of BLM, if the defendants are hostile to BLM would this affect your view of the case?

288: I don’t think the jury process can work unless the jurors can put their own viewpoints and prespectives aside and fairly just a case based on the evidence and whatever instructions the court provides us… This case is not about me…

Q: what are your views about confederate monuments?

288: I think the monuments can stay as long as there are other monuments to represent other viewpoints… if you want to celebrate someone’s history, then be prepared to understand all sides of it

Q: You said you knew of the League of the South, what do you know about them?

288: I don’t really know anything about them, maybe I heard the name. I’ve heard of the KKK before, some of the groups sound familiar

Q: Do you think that all organizations from the far left to the far right have a right to hold public demonstrations as long as they’re lawfully done?

288: yes

Q: Plaintiffs have the burden of proof in this case, they have to prove by a preponderance of the evidence that the defendants conspired to carry out racially motivated violence, and so it’s going to be critical in the case, the evidence…or there may be a lack of evidence…

…if the plaintiffs do not prove that there was a conspiracy… on their part to commit racially motivated violence, would you have a problem returning a verdict for the defendants?

288: No, i presume them to be innocent unless proven otherwise

Q: Given what you know now today can you say that you’re confident… you can try the case solely according to the law and the evidence.. and render a verdict that’s fair to the plaintiffs and the defendants?

288: So help me God, yes

Q: Are you any more likely to believe one side of the other if there is evidence that Black Lives Matter or antifa was present?

288: no

Judge Moon thanks the juror and sends him back to the jury room

Judge Moon refers to a question “with a religious overtone that was actually sort of snarky”

Richard Spencer says he doesn’t think it was snarky but accepts the Judge’s position

Cantwell says he moves to strike juror 288 for cause, saying he hesitated and says “it depends” when asked about political violence. Cantwell says “if violence is justified in pursuit of his political goals, why not deception”…

“we know he thinks violence is justified and I think that disqualifies him as a juror” – Cantwell

Judge Moon says that 288 said he could set aside his opinions and be impartial in the case so he won’t be striking him and will pass him

Potential juror 278 is in for questioning now. Seems to be a younger middle aged white guy, says he would lose income from running a nightclub and AV company he works at if he served on a jury for 4 weeks

278 also has a small business booking bands for local bars but says he could do that in the evenings

Judge Moon asks for questions for potential juror 278, notes getting passed up to the bench now

Judge Moon asks 278 to step out into the hall, says “I’m a little ambivalent about his work, I hate to be prejudiced about what he does, but how essential… it’s not like nursing…”

Judge Moon says he will keep 278 on, “I’ve tried to avoid looking at what they do to make the decision but I’m gonna leave him on the list.” 278 coming back in for more Qs now

Q: you stated you are very favorable to Black Lives Matter, if defendants are very critical of Black Lives Matter would that affect your ability to view the defendants impartially?

278: no

Asked about his view on removing monuments, 278 says “it depends on the monument”

Q: Do you know whether Unite The Right had anything to do w a monument?

278: I am familiar with that

Q from defense: your survey indicated you are concerned about racism except anti-white racism, is it your view that white people cannot be victims of racism?

278: it is not

Defense q: when it comes to fighting fascism does the ends sometimes justify the means?

278: I don’t think so

Judge Moon: are you sensible to any bias for or against any party in the case?

278: yes

Moon: do you think you could set it aside to render a verdict fair to both sides in the case?

278: yes

Q: Do you think it would be difficult for you to render a verdict because of your bias or prejudice, do you think it would be difficult to render a verdict fair to both sides, a verdict based on the law and the evidence?

278: I do not

Q: are you aware of any bias or prejudice you may have against either party to the case?

278: I am

Q: could you set aside that opinion and try the case and be fair?

278: I could

Q: do you run a business on the downtown mall?

278: I do not

Q: are you friends w Wes Bellamy?

278: I have worked with him, once

Q: tell us the nature of your bias against the parties

278: I didn’t agree with why they felt the statue should stay

Q: Bellamy may be a witness in this case, does the fact that you have had some past relationship w Mr. Bellamy, would that in any way effect your ability to serve as a juror in this case?

278: I don’t believe so

Q: This case concerns whether these defendants committed or conspired to commit racially motivated violence. Can you decide that question fairly?

278: yes

Q: You said that you dealt with Mr. Bellamy one time. Do you consider him a friend?

278: an acquaintance.

Q: Do you have any preconceived notion as to whether he would be truthful or not?

278: I would think he’d be truthful

Q: Do you know the names Deandre Harris, Donald Blankney (sp?), Emily Gorcenski, or Christopher Goad?

278: I’m only familiar w Deandre Harris from the news

Q: is he someone you know personally?

278: no

Q: you said you don’t own a business on the mall, have you before?

278: yes

Q: when?

278: it ended in 2018

Q: Did Unite The Right affect your business in anyway?

278: that weekend sure did

Q: If the credibility of Wes Bellamy’s testimony should become an issue in the case, would you be able to set aside your opinion of his truthfulness and decide he was not telling the truth if the evidence showed he was not telling the truth

278: yes, if the evidence showed he was not telling the truth

Q: Was your business affected by the events on the mall?

278: we had to close

Q: How long?

278: if August 11 was a friday, we had to close that friday, we had to close that saturday, and money was lost

Q: what would happen to your AV business if you had to stay on the jury?

278: It would stay open

Q: Would the effect that weekend had on your business effect the way you would decide the issues in this case?

278: I don’t think so.

Q: do you have an opinion who was responsible for violence at the event?

278: it’s been formed by what I saw on the news… but I don’t know who threw the first punch

Judge Moon: If you were selected to serve on this jury, could you render a verdict that’s fair to both sides and render a verdict…fair to both sides?

278: I would do my best to do that, yes

Moon: as you sit here today, can you do it?

278: yes i can

Judge Moon lets 278 go back to the jury room

Judge Moon asks for objections to 278

Kolenich for the defense says 278’s answers were inconsistent about being fair and unbiased, says he was biased against from the defendants and suffered monetary loss as a result from the rally

Karen Dunn for the plaintiffs says that “this juror is qualified… he repeatedly answered questions about his impartiality…”

Judge Moon says the issue remaining is his business’ financial loss. Dunn says 278 said he could set that aside and decide about responsibility fairly

Judge Moon says he is “a little concerned… I felt like his answers to the questions were okay…I’m a little concerned about the fact that whether anyone who was actually injured… he wasn’t injured personally but he was injured financially…”

Karen Dunn: he said his business is now closed, this was four years ago

Judge Moon: I’m talking about that weekend he lost money, he had three days shut down

Dunn: he said that wouldn’t affect him, the key thing is about responsibility in this case

Kolenich: He’s basically in the same position as the plaintiffs, coming before the court saying he’s been harmed by these events…

Moon: I’ll decide that after we take a recess

Judge Moon: we’ve got one more juror to see before we get to the Batson challenge

Court is going into recess now, 10-15 mins(?)

Morning Break

Correction: the defense lawyer just talking now was likely Bryan Jones (hard to tell them apart on the video feed provided in the court’s media room, media can’t observe from inside the courtroom)

Another potential juror (number unclear) is in for Voir dire now, says he can do the four weeks but had a neck and back injury last week so is worried about sitting for long stretches of time

Asked if he is still under treatment for his injury, this juror says yes. Asked if sitting for a long time would be a problem, he says he isn’t sure but doesn’t think it would be comfortable.

The juror (a Black man) says he’s torn between serving and wanting to make his scheduled appointments for his injury

Judge Moon excuses this juror due to his injury

Potential juror 294 is next for Voir dire

Potential juror 294, a man whose skin tone is simply not able to be told on the grainy video feed in the court media room, is excused due to problems posed to his work by the length of jury service in this case

Judge Moon refers to issues w juror 278, who suffered financial losses due to closing his business during Unite The Right, Moon says he finds 278 has separated his business’ loss from the questions of deciding this case so he will pass that juror

3 more jurors have been qualified today so Judge Moon is moving on to discussing the Batson challenge in regards to juror 197, a Black man who the defense struck from the jury in a manner the plaintiffs allege was discriminatory

Judge Moon says the defense can explain and elaborate on their reasons for striking the jury but can’t come up with new reasons for why they arrived at the strike.

Bryan Jones is about to speak for the defense

Some back and forth now between Judge Moon and Karen Dunn for the plaintiffs about whether the current new 3 jurors is properly random in order or not

Back to the Batson challenge it seems, Judge Moon asks the defendants to present their answer about striking the juror.

Bryan Jones says he’s speaking just for his clients (Michael Hill, Michael Tubbs, League of the South) but Judge Moon says he wants to hear from all defendants at once.

James Kolenich (Kessler, Damigo, IE) complains about defense having to all work together causing issues

Chris Cantwell complains “I’m stuck in this corner” and can’t always hear what others are saying. Judge Moon says “you spoke on Monday night” Cantwell says “this man is a liar”

Bryan Jones now saying this juror was struck bc he was “extremely favorable” to Black Lives Matter and the defendants are hostile to Black Lives Matter.. “he also put that he strongly approves of removing confederate statues bc they’re symbols of racism…

…this is a confederate statue… my clients League of the South are a neo-confederate organization… this puts them in a difficult position…” – Bryan Jones

Bryan Jones: “Plaintiffs have struck several [white jurors]…”

Christopher Cantwell ( at first speaking too loudly into the mic causing reverb): my notes show “BLM attendee/favorite”… “anti-white race nut” I wrote “nothing about race only his views on race…”

“I’m a professional talk radio host… I talk and listen for a living… I detected deception in the man’s voice… him and the other juror that we struck… they answered certain questions as if they were answering a sarcastic question…” – Cantwell

Richard Spencer: “my reasoning was similar to Mr. Cantwell’s although I enveloped it in Straussian language… I did not trust that he was speaking in a genuine manner… that distrust continued and got amplified throughout his speech… it had nothing to do with race…”

Joshua Smith (lawyer for David Matthew Parrott, Matthew Heimbach and Traditionalist Worker Party):

This juror has favorable views of BLM and the removal of the confederate statue

Joshua Smith: the juror stated that he wasn’t concerned about racism against white people but was concerned about other races… this is evidence of anti-white bias and qualifies as a reason to exercise a preemptory strike…

Smith: the juror can say they can be impartial, but I don’t have to believe them…

Smith: I didn’t like the juror’s attitude, I believe they could distract other jurors from issues defendants want them to focus on… there are other Black jurors we didn’t strike

Karen Dunn for plaintiffs: “Supreme Court and other authority..says that when a Batson challenge is at stake the striking party must give their reasons…coming up with new reasons that were not stated on the record at the time support that…”

Judge Moon cuts in: we have 20 defendants and only 3 were able to speak at that time, what are the new reasons?

Dunn: anything having to do with this questionnaire

Dunn: Kolenich said the juror had an “anti-defendant attitude from looking at his face while answering the questions”, that’s the best he can give for non-race based reasons

Dunn: Kolenich said reasoning wasn’t “strictly race-based” which concedes that it was partially race-based. Court precedent says citing “the look on someone’s face” is actually a basis for alleging race-based reasoning

Dunn: Spencer said “this juror’s words were too perfect…” – that is again these demeanor-based abstractions are what the courts have expressly found support a Batson challenge

Dunn: let us not forget these are the same defendants who wanted to call back a white juror who said they were evil… multiple defendants said we should call that person back bc maybe they could be unbiased… the contrast is stark

Dunn: Mr. Cantwell said based on observing the person, he thinks he is lying. This falls into the same category, it is not permissible.

Dunn: let’s look at what the juror actually said… he said he hadn’t made up his mind, and people can protest if they have a permit… that’s going to be one of the defendants’ defenses in this case. He also said all persons can experience racism…

Dunn: white jurors who made it onto the jury expressed more personal feelings than this juror

Dunn: 4th circuit says there’s a general rule of timeliness re Batson challenges bc it allows the court to rule based on what. it observed… we should reject any new post-hoc explanations popping up

Dunn: this is not just an issue for the panel.. seating other Black jurors & defense arguing they haven’t objected to other Black jurors doesn’t solve the issue… striking one Black juror can violate that juror’s equal protection rights even when other Black jurors are seated…

Dunn: the Supreme Court said that “denying a person participation in jury service on behalf of his race unconstitutionally discriminates against” that person’s rights to serve as a juror

Dunn cites a comment made during Monday’s sidebar: “Mr. Konelich said ‘we’d appreciate the time to come. up w some kind of effective defense here’… the defense has tried as promised to come up w some sort of defense for a discriminatory strike but they did not come up w one…”

Dunn:… this is one the record a textbook Batson issue…I hear the defense scoffing

Joshua Smith: I was the one who chuckled, i apologize

Dunn: this juror answered some of the Qs in ways favorable to the defense, he was the first Black juror and they moved to strike him…

Moon asks the defense to respond. James Kolenich from defense counsel says he voted in favor of this juror and objected to the defense striking him, but says he was the one who made the comment about needing time to make a defense… says other defense counsel should speak

Richard Spencer: I understand the reasoning that acts as a grounding for a Batson challenge, ppl have the right to not be discriminated against in that process. But there is an overall good to allow a defendant discretion in terms of selecting a juror…

Spencer: Mr. Kolenich is speaking for himself when he mentioned facial expressions, my statements which are accurately represented by the defendants are paraphrasing Leo Strauss and I don’t expect them to catch that.. I think this juror was nobly lying to get on the jury…

Spencer: I stand by my decision as not race based

Judge Moon: can you say why you thought he was lying?

Spencer: i felt his answers were too perfect and by the book, it was too perfect and what you wanted to hear

Joshua Smith for the defense: those 4 reasons I gave you I came up with instantly. as soon as I heard there was a Batson challenge, this particular juror it has nothing to do w race…

… I think its offensive that the plaintiffs are even bringing a Batson challenge here since all their strikes were on white jurors…” – Smith

Bryan Jones (defense): I’ll just note that the reasons I gave were not fabricated and came off the jury questionnaire…

Cantwell: I’ve mentioned that. Ihave notes that i could offer the court.. could i hand these to the clerk?

Moon: you can tell me…

Cantwell: I’ve already done that I just don’t know if you want my notes or not

Moon: I don’t know what the notes would do…

Moon declares a 10 min recess, has not yet ruled on the Batson motion

Afternoon Break

Judge Moon is back in court now

Judge Moon is ruling on the Batson challenge now

Judge Moon: “The objecting party must provide proof of discriminatory selection…considering the defense’s statements of the reading… the court finds the defendants have successfully stated a race-neutral reason for the strike…”

Judge Moon: “I find persuasive defendant Spencer’s statement that the strike was not motivated by race but rather by his assessment… I find the same for defendant Cantwell…”

Judge Moon: ” i do not find that the juror was being dishonest… but from Mr. Spencer or Cantwell’s position I could see how they arrived at the opinion that they have…”

Judge Moon says defense counsel James Kolenich’s statements cited by plaintiffs were not enough to prove race-based reasons for the strike

Judge Moon says there has been no observable discriminatory pattern in the defense’s strikes

“…the Batson motion is denied” – Judge Moon

More jurors going to come in for Voir dire, defense is complaining that they don’t have questionnaire for 304

Jury is getting called back in

Court clerk is telling jurors they’ll be addressed now by new randomized numbers not the numbers previously assigned to them.

Juror 4 – defense challenges

Juror 7 – defense passes

Jurors 288 and 275 have made it onto the jury

Before sending the new jurors home for today Judge Moon tells them not to discuss or research the case in any way and that they should expect to come back by 9 AM tomorrow

Jury instructions before opening arguments will start at 9 AM tomorrow, Judge Moon apologizes for delays this far. Says it will be a generic preliminary instruction

Judge Moon asks for matters to discuss before tomorrow, defense asks for judicial notice of the fact that there was a permit for Unite The Right be included. in the jury instructions. Moon said he already ruled that the permit could be admitted into evidence

Moon says he doesn’t think the permit is relevant for just instructions though… defense says “plaintiffs are going to try to say that the permit isn’t valid”

Moon: “is there any intention of saying it wasn’t a valid permit?”

Robert Kaplan, plaintiffs: “No, your honor”

Cantwell: there’s a substantial length of my body camera from the so-called leadership meeting where we’re discussing the possibility of an injunction to get the permit honored, I think that’s an important part of my case bc it shows we went to lengths to try to follow the law…there’s a celebration on that video when we get the permit bc of our dedication to following the law…”

Judge Moon: that’s going down a rabbit trail we don’t need to go…

Cantwell wants to play the entire 2 hour body camera video in the courtroom

Cantwell says “all of the plans hinge on whether or not we get the injunction…”

Roberta Kaplan: on the discord posts we have a stipulation from everyone except Mr. Cantwell that they’re authentic… as to this video we’re willing to have a discussion as to authenticity but we don’t need to do that in front of the court…

Judge Moon: are there any issues w the video?

Kaplan: it’s a two-hour video, there could be issues w representations by Mr. Cantwell. I don’t think we should be deciding individual pieces of evidence like this…

Cantwell: plaintiffs allege we planned racially motivated violence at the August 11 planning meeting but weren’t aware I taped the entire thing…

Judge Moon: I haven’t seen it yet so its too early to take it up

Kaplan: we intend to show certain pieces of evidence during opening arguments including videos, we put the defendants on notice about those two days go

Kaplan: Mr. Cantwell filed an affadavit about conditions in which he’s being held, we don’t think we should deal w that due to the pending motion for severance

Defense counsel Rebrook who went missing and possibly to the ER is suffering from a common medical issue and expects to recover in a few days, other defense counsel says. Judge Moon says he can appear via zoom.

Kaplan expects plaintiffs’ opening arguments to last 90 mins

As Judge Moon is trying to adjourn, Cantwell jumps in to ask about a pre-trial conference where Moon mentioned ECF numbers of motions that Cantwell had filed that Moon was deciding on.

Cantwell says he has received replies to two of them which have something to do w contesting whether bias against Jews is a discriminatory animus and a different similar motion about “bias against antifa and the progressive left.” Judge Moon says his answer is “on the way.”

Judge Moon thanks the parties for their patience thus far and says he’ll see everyone back in court tomorrow at 9 AM.