Sines v. Kessler Rush Transcript – Day 18: Defense Rests, Jury Instructions
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.
Official Court Transcript [Courtesy: Integrity First For America] [Click HERE to Download .PDF]
1642093372-2021-nov-17-moon-sines-v-kessler-317cv72-cvl-jt-day_18-finalAdditional Resources via Integrity First For America: Trial & Deposition Video Transcripts • Searchable Database of Plaintiff’s Trial Exhibits
Unicorn Riot’s rush transcript from the day’s proceedings is below. While the official court transcript is more comprehensive, UR’s live notes sometimes contain visual descriptions of elements not noted by the court reporter, including the visual appearance of exhibits shown at trial, movements of parties in the courtroom, and happenings in and around the courthouse.
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.
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Day 18 – Nov 17, 2021 (Collected from this tweet thread)
Richard Hamblen, a League of the South (LoS) member at Unite the Right testified about marching from the Market Street Park (aka Emancipation Park) to the parking garage near the police station, where DeAndre Harris was severely beaten by white supremacists. Plaintiffs showed an internal League of the South email where he discussed striking a counterprotester in their helmet’s ear hole with his flag staff, then that counterprotester pushed him to the ground.
For the pro se defense, white supremacist Chris Cantwell called plaintiffs Natalie Romero and Devin Willis. (Jump to Romero and Willis.)
Lawyers wrangled over jury instructions, a large block of directives which Judge Norman Moon read out in sections throughout the day. This set the stage for closing arguments on Friday. (Jump to afternoon main block of instructions.)
- Update 11/19: The full jury instructions and verdict form are attached. (Download here)
First to testify is a man with a white beard from League of the South, a neoconfederate organization named Richard Hamblen who was at Unite the Right in 2017.
This is expected to be the *last* day of the defense, but not for certain
an audio clip is being submitted by defendants attorneys (Jones), with an objection of no foundation
The witness describes something about leaving the streets in the audio and there’s another objection. A lot of yelling in the clips – the witness says a counterprotester is yelling in the clip
the defense attorney calls attention to ‘do something n***’ in the audio clip as Hamlin says they were headed to the parking garage, then the witness claims that person attempted to trip him (later at the garage one of the UTR participants pulled a gun)
The defense attorney asks about ‘shields up’ statement on the audio and witness claims stuff was flying thru the air towards neoconfederates earlier in the day. video clip is admitted defense 072B a video clip showing Michael Tubbs leading LoS group away from the park
In the video clip confederate flags and a circular shield with the SS ‘black sun’ occult fascist symbolism are visible. The group heavily of LoS members was marching up Market Street towards the parking ramp, away from the park – riot police made a perimeter on the park edge
they highlight one counterprotester who waved a flagpole around at a distance from the neoconfederates. skipping ahead counterdemonstrators continued to trail the LoS group along Market Street. They circle Deandre Harris and some other people in the counterdemo crowd
the witness Hamblen had a large LoS flag and riot helmet with face shield as he marched along the right side of the neoconfederate group towards the parking ramp. Video shows scuffle at parking ramp
Hamblen describes the video showing him in a fight with counterprotesters in the street, near the parking ramp, with a group of other neoconfederates. Bryan Jones stops questions, and plaintiffs start
Hamblen says to plaintiffs he was chair of the Tennessee chapter and joined League of the South in 1995, saying he would ‘secure the independence of the south by any means honorable’ (sic)
Hamblen isn’t sure if he did TN LoS Facebook posts or approved them-plaintiffs submit a post. Dated July 9 ‘Aug 12th must be a defining point for our people… stand in solidarity vs enemies of our folk our blood our kith and kin’. he says he agrees w post, not sure if edited it
‘yankees and communists’ are enemies of the folk says Hamlin. He says he doesn’t necessarily share Michael Hill’s view about Black people and Jews. ‘They were trying to erase our history’ claims Hamlin. Plaintiff points out nothing about monuments is posted in the FB post
He agrees he marched between Michaels Hill and Tubbs, met up at JoAnn Fabrics shopping center rally beforehand. Plaintiff asks if he heard Ike Baker talk about white identitarians and Hamlin doesn’t recall. Says he marched behind Tubbs. Then talks about going to garage
Plaintiffs ask about the Black man with a pole. Hamblen did not see him strike anyone with a pole. Ask about a counterdemonstrator getting maced. He doesn’t recall LoS macing a counterdemo member. Hamlin didn’t know Deandre Harris at the time. Claims to remember seeing him @ garage
Hamblen concedes he doesn’t remember seeing Deandre Harris at the time on the street, only from video review of the roughly 6 minute walk to parking ramp. Plaintiff asks if he actually saw Harris do anything. Not until the garage. Hamblen didn’t see start of fight in garage
Hamlin claims he did see the fight and was around 15 feet away or so. Tubbs was ahead of him. Claimed a counterprotester tried to take his flag. “I resisted, they took me down and she assaulted me” while plaintiff says that Hamlin assaulted her – he says he tried to push her
Plaintiffs say Hamlin struck the counterdemonstrator with a flagpole in her ear *before* scuffling, and that he told that to Hill several months later, then he says “I don’t recall” . Plaintiff exhibit 3961. exchange of emails w David Harris and Michael Hill LoS Oct 2017
Weds Oct 11 Hamblen said to Hill, seqeunce is, she grabbed at flag from behind, he lowered the staff, caught her in the earhole of helmet, she spun around and attacked me. Hamblen concedes that’s the sequence, that she grabbed flag fabric and he rammed at the helmet ear hole
Defendant objects to leading, no response from Moon. Plaintiff presses on sequence that she grabbed flag, was walking past, you lowered pole, jammed to her head, into the earhole of helmet and that was why she threw him to ground and punched. objection from defense
Hamblen doesn’t agree w complete characterization but agrees ‘more or less’. LoS Email: ‘my one and only concern of concern is existence of photo or video’ showing ‘striking with tip of flagstaff’ . ‘last thing i want to be hit with a charge claiming self defense’ on act of aggression.
More defense objection. Moon: do you agree? Hamblen said what he said is accurate. ‘it was her colleagues that took her off you’. Hamblen claims a policeman chased her off; he says one policeman said to him ‘you’re too old to be doing this’. he didn’t file report at nearby station
Moon: this incident not relevant to damages seeking in case. injuries sustained by plaintiffs regard Fields attack and attack at Jefferson statue, and Reverend claims got pushed by park on Aug 12. This is ‘collateral’ ‘context and picture.. animus and conduct’ not ‘remote things’.
Moon saying don’t need to discuss remote things to case. Plaintiff say Harris was attacked in way of racial animus but isn’t a plaintiff in this case. Moon says they don’t need to go past that. Plaintiff ask if Kessler was prodding him to file a police report. Objection sustained
Hamblen says Kessler mainly didn’t press him to file a police report, was waiting for Harold Cruz (sp?) – says he did file later. Judge strikes answer. Moon: Waving hands to stop “I’m not going to keep on w this”. Plaintiffs stop.
Cantwell comes up to ask questions Cantwell goes back into video. Asks about a logo on helmet of counterdemonstrator. Hamblen only recognizes symbol from trial. Cantwell done. Smith comes up for defense. Def. Ex72B. Asks about logo. Says its not the TWP logo and Hamblen agrees. Hamblen is done.
Erroneous exhibit numbers are being corrected and put in record. A few were missing and a wrong ##. Captain William Newberry Charlottesville PD now witness. Was a detective sergeant in investigations bureau. He did some research on groups on both sides. He was assigned LoS
Newberry was in contact over phone w LoS before UTR. Defense doesn’t pursue much. Bill Isaacson for plaintiff asks if he had contact with more groups. Jack Pierce was another, talked to him before Aug 12. Objection beyond scope sustained for defense.
Isaacson wins on complete contacts should be disclosed. Defense worried about Pierce. Pierce was head of security but Moon says it’s hearsay. Isaacson asks about what he represented his job was to the officer. Moon doesn’t see how it could be anything but hearsay
Plaintiff (correction) asks if PD gave plans out to Pierce, def. objection is sustained to block this. Isaacson has no further questions and the PD officer is dismissed. Jones has no more evidence. Asks if anyone besides Cantwell has evidence.
Cantwell calls for Natalie Romero
Defense Smith wants 1 exhibit in with 2533. A video not to publish to jury but want admitted. Plaintiff says he wants it held on advisement until end of break because Smith has been dealing with Bloch (plaintiff).
Witnesses are not at the courthouse now and are on the way. Cantwell wants to question Romero. We are waiting 10-15 minutes for witnesses.
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Natalie Romero (Plaintiff)
Cantwell is going to question Romero – Moon reminds the jury is supposed to evaluate the facts and reach their own verdict. Not to draw inferences from things Moon has said. Natalie Romero sworn in. ex 3267 still frame. shows her wearing a black bandanna
Romero said she wore a bandanna because she’d been maced. Denies any relationship with NLG. Cantwell asks about green whistle. She doesn’t recall. He asks if she saw anyone else with green whistle. Cantwell trying to link green whistles to National Lawyers Guild green hats
ex3207 livestream video from Sines. Romero says ‘guess so’ when asking if she was blowing a whistle. On Water Street. She says she was part of group that went left. Agrees after they merged, she went onto 4th. Crowds merged at 4th & Water, Cantwell speaks of something else…
Romero agrees she says earlier she didn’t see anyone carrying weapons. Video 3207 shows counterdemo marchers. Asks if she remembers ‘our streets’ chant. Asks about crowds merging at intersection by parking ramp and ‘antifascista‘ chant, if she heard it. she did during the trial
She says she doesn’t recall hearing it at time. ‘they were chanting a lot of things’ just before the attack. Objection compound/argumentative sustained for plaintiffs. cc ex137a next. (not visible in press room) Cantwell asks about clothing and someone else near her in video
plaintiffs object to portions that she cannot authenticate for cc ex137a being admitted. Moon sustains. Cantwell asks about students attacked at statue beatings. Romero did not testify to ‘beaten one by one’ attacks earlier. ‘it happened kind of altogether’ the beatings, at base
‘we jumped on the statue once people started beating on people.. to get away from the flames and the punches,’ says Romero about the UVA tiki torch march attacks. Plaintiff says the video can be played to the parts she can identify for foundation. (not visible in press room)
Plaintiffs object to characterization about man in blue shirt cantwell says is being beat up (we can’t see the clip here – its from the UVA tiki torch attacks.) Romero asks video to stop as she is out of it. CC ex 137a, plaintiff demands to know if she saw all of this.
Plaintiff attorney says she doesn’t know about the later part of the video. They asked for timestamps in the morning and Cantwell didn’t give them at the time. Plaintiff says it’s not in evidence (1min26secs of it) She’s only authenticated beginning to start of fight
Moon says start over video and tell us to stop, if she left or? If you go back when it happened, Devin and Romero are supposedly visible running away. ‘you start seeing that they’re on top of us,’ says Romero, ‘the flames.. starting to hurt us.. is that you? go back a frame?’
Romero asks Cantwell to go back some frames as she thinks she sees Cantwell. He agrees, that is Cantwell “hittin this guy”. She says “we are getting a bunch of those hits”. “I see you in this video” she says to Cantwell. She asks for slow motion. she says can’t confirm he punched her.
she says she didn’t see cantwell punch her, she can’t confirm. she is wondering. she isn’t sure who was hitting on that day. she’s not sure how many times she got punched. ‘we were taking hits’. ‘sideswiped by fight happening next to us’ says Romero
she says she was hit, not sure if punched directly. objection is overruled, Moon says ‘get this straight’. Cantwell asks how many she said she got punched. She says she’s only saying that because he popped up in this video. he now says wants to try to determine if he hit her
In a muddled exchange he asked if she had been telling people she got ‘punched’. He also asks if she knows who a man in blue shirt is and she says no. “this is when they start” … ‘waiting to find the part where i punch ms. romero’. objection that she didn’t say that
Once again Cantwell trying to find endpoint of when she leaves the scene. zero to 53 seconds. that’s the end of romero’s authentication of this ex 137A. (we haven’t been able to see any of this)
Another clip is shown from 137A now visible. asks about @EmilyGorcenski on clip still
.@EmilyGorcenski is holding a cellphone recording video – Cantwell asks about person next to Gorcenski. Cantwell concludes. Next witness is on the way.
— Again it’s believed defense will finish today, that should leave time for procedural wrangling before closing arguments tmrw
Devin Willis (Plaintiff)
Second plaintiff today Devin Willis is called up by Cantwell as witness. Cantwell wants 10 second clip from Vice video. Plaintiff objects until authenticated and objects to subtitles added to video saying it shouldn’t be in evidence. (Willis is ostensibly somewhere in it)
Plaintiffs say Willis was there with his head down. Moon asks when Willis was on ‘rotunda porch or whatever’ ? The statue? Willis says on statue. He is facing floor he says, he sees flames. He feels people attacking him and trying to leave. Plaintiff says still frame is fine
Moon wants to admit the ten seconds. Plaintiffs say its a news clip, including ‘ominous background music’. Plaintiffs don’t object to asking Willis about faces. Sidebar begins. They were trying to keep out more footage Willis can’t speak to- hadn’t seen directly.
Cantwell asks Willis if he recognizes UVA scene from Vice video. Willis confirms. Asks if “no nazis no kkk no fascist USA” chant recalled, Willis yes. He says he will never forget them marching w torches. Cantwell struggles with computer. He asks if Willis knows adjacent ppl (no)
Willis says he doesn’t know other people who were counter demonstrators at the torch march, never saw them around campus. He asks if ‘torn down one by one systematically’. He wasn’t looking at every student but remembers someone in wheelchair peppersprayed at close range
(in prev tweet its cantwell asking, and willis wasn’t looking at every student – to clarify)
ccex140A Cantwell asks if Willis is in it but can’t see himself. He says he is next to Natalie and thinks he sees Natalie Romero in photo. Cantwell gets this admitted, shown to jury
Cantwell asks if one of them is a holstered handgun, maybe a handgun among the people at the statue. “it looks like one,” says Willis. Possibly a holstered handgun in photo, not very clear.
Willis says the woman in wheelchair was to the right of him on north face of the statue
Cantwell goes back to px137a. Willis agrees he went to the UVA students against white supremacy sign and ID’s himself in the frame. Willis says up to 58 seconds he can see himself – so now the video will be admitted up to that time mark without objection.
Cantwell asks about ‘heads down’ quote. Willis doesn’t recall. ccex157. Willis recalls ‘Jews will not replace us’ chant from UVA torch rally. Says he knows the location east side of rotunda at base but not when it was filmed.
Willis agrees it’s the north plaza. He recognizes ‘no kkk no fascist USA’ chant but isn’t sure if he recalls the specific moment. (This is likely from the @EmilyGorcenski video – who describes community members standing against fascists). Cantwell moves to admit – Moon says it is
No objection from plaintiff for ccex157 to be admitted. cell phone video from the rotunda area. cantwell asks about ‘this is important to all of us’ stated by someone. Willis doesn’t recall. Cantwell reconfims Willis didn’t know Gorcenski at the time (true)
Cantwell asks if its odd that Gorcenski hid a lot of faces besides Romero and Willis. objection sustained. Gorcenski’s video is aimed downwards avoiding most faces. Cantwell has no further questions.
Defense exhibit 1 has been admitted – Jones is up now
Objection to showing a picture. Willis is not the person circled in the exhibit and doesn’t see himself in the picture. Jones is done. Willis is excused.
Moon asks for more evidence. Smith wants plaintiff 2533 entered in, a video. No objection from plaintiffs. Approach bench…
reminder:
We are expecting the ‘charging conference’ to happen later today which will be pretty dry and procedural – will probably consolidate this into few tweets + images. Closing arguments are expected on Thursday. Thanks for sticking with us thru nearly a full month in court
One issue about a UVA fire policy. 1430A in docket. custodial affadavit. Moon says the jury will be going in and out a number of times. He’s sending them back to jury room for ~15 mins then they will get instructions, go to lunch, then get more instructions. Jurors filing out
Defense Objection now; was not on the exhibit list and not laid out in time. would be tantamount allowing to amend complaint. re VA conspiracy law. saying it was only about violence, and plaintiffs trying to attach unlawful means. no evidence defendants knew about UVA fire policy
Moon questions; clarifying about that they didn’t know they could not light torches. Disclosure issue is that they haven’t been able to get into it on the exhibit list. Plaintiffs say they aren’t trying to amend complaint. its relevant as they put it at issue by claiming … … that it was legal. but it was not. re relevance and disclosure it speaks for itself, the policy is the policy.
if the argument is that unauthorized tiki torches its highly relevant and probitive, they repeatedly claim its lawful, submit jury instruction its ok to do this… the plaintiffs only submitted it because they put it an issue. Moon says that they should have expected it . Plaintiffs say its not prejudicial, and that it wasn’t a lawful protest because they brought torches. & they should be able to submit evidence.
Moon says they didn’t hurt people with torches, but plaintiff says there was evidence they swung torches. plaintiffs not sure if anyone says they were burned, whether or not the flames they evoked a horrific incident relative to damages. Moon says its too late.,,
Moon would say they would have a right to say they didnt know it was forbidden (and it mitigates damages). it comes up too late and reopens this case. plaintiff say they shouldnt be able to argue that its legal; ok to stipulate not to argue w jury that it was legal
Cantwell claims that Kline found out it was legal. Moon says the police can’t alter university policy. Moon wonders if cantwell wants to snatch defeat from the jaws of victory
Moon says you should not be saying it was legal because that’s not an accurate statement. defendants want to say the plaintiffs can’t say it was illegal. plaintiffs say the whole argument is that they did unlawful actions. Moon says they can’t argue the fire policy
Moon says that they can argue that they thought it was lawful, but not that it was lawful. Asks if everyone understands.
Plaintiffs object to some of Kolenich proposed jury instructions. Moon says he wants to read with the boilerplate and that his voice will give out.
Moon is ‘gonna read about 20 pages I believe’ .. a brief break is happening now as jury instruction wrangling will continue.
givemn.org/organization/U…
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Back now. Moon asks about instructions. plaintiffs raise on docket ECF1442 objected to about protest march in residential area and 1446 about ‘advocacy of violence’ plaintiffs objecting to. the proposed instructions they sent are correct and want to argue it.
Jury coming back
Paraphrasing a very long jury instruction Judge Moon has started reading back – telling them to judge the facts and evidence presented and not make their own interpretations of the law.
Moon addresses jury. Now you’ve heard evidence in case and now he instructs on law and tells them to follow instructions. The instruction will be what you see since he does misspeak.
“final jury instruction #1” General instructions. He reads off the doc. He tells them to apply the rules of law after final arguments. Their duty to follow law as in his instructions. Counsel may refer to governing rules of law, if any difference appears they should be governed by instructions. May not ignore other rules or single out one instruction alone, but must consider as a whole. Would violate the duty to break with views of the law in instructions. Must not base on prejudice sympathy guesswork or speculation. Justice must depend on each juror seeking the truth.
More jury instructions. (a random video clip accidentally played)
Lawyers are supposed to call jurors’ attention to facts and inferences. What lawyers say is not binding on jurors. Don’t assume Judge Moon has opinions on the case. Disregard anything he said about the facts. Jurors are the judges of the weight of the evidence. Evaluate bias and inconsistent evidence, anything untruthful they said. May accept or discard testimony as they think proper. May judge testimony with common sense. May determine some witnesses are more believable. Allowed to draw reasonable inferences in light of common experience with deductions and conclusions via reason and common sense. Don’t be concerned about direct vs circumstantial. Direct is eyewitness. Circumstantial is proof of a chain of events. Law makes no distinction direct vs circumstantial. Your job to decide burden of proof proven by preponderance of evidence. Do not need to accept all evidence as true. You are the sole judges. Important job is deciding about witnesses in case, decide if you believe all or in part, or how important the testimony was (knows this is repetitious). Did they have a reason not to tell the truth? interest in personal outcome, relation to defense or plaintiff? Did they really see? have clear memory? Did they have clear answers? did the answers change?
Judge Moon specifies about expert witnesses in jury instructions.
May be discredited or impeached by proof they testified falsely. If they gave inconsistent testimony. some witnesses were employees of the state and civilians. testimony of law enforcement officers / govt is not necessarily deserving of more weight than ordinary civilian witness.
Plaintiffs face ‘preponderance of evidence’ except for intentional infliction of emotional distress. Defendants burden is to prove defense by preponderance. ‘more probable than not’. Such evidence that persuades you fact is more likely true than not. 51% you may think. ‘proof beyond a reasonable doubt’ does not apply in this civil case so put it out of your minds. You may consider all witnesses and exhibits and depositions read into the record. if you conclude a party establishes preponderance of evidence you must find for the party. Re evidence and special technical knowledge. qualified expert witnesses may testify their opinions. 4 expert witnesses, dr deborah lipstadt, on antisemitism and symbols, dr paul simi on white supremacist movement and culture, sharon reavis expert on rehab counseling, dr nadia well on neuropsychology and medical psychology. give it such weight as you think it deserves. if you decide expert witness not based on sufficient experience not sound, or outweighed by other evidence you may disregard.
must not consider any matter stricken by court.
more about the 5th Amendment declarations, Benjamin Daly and Vasiliy Pistolis (an Atomwaffen / TWP affiliate).
depositions should be judged same way as testimony in court. some was video recording or read out loud by attorney.
under 5th Amendment person has right to refuse to answer questions that tend to incriminate. Certain non party witnesses, Ben Daly and Vasiliy Pistolis they exercised this. You may but are not required to infer that it would have been harmful to the witness if you find they are associated with the defendant (paraphrase). depends on circumstances of the case. A conspirator may be associated with a party to permit drawing an inference if the conspirator refuses to testify. you could find that they are not associated with the party – in other words should not speculate why they exercised the constitutional privilege. you are not to make inferences because the witness refuse to testify. (paraphrase-confusing)
more specific instructions to follow after lunch
Lunch should be an hour starting now for jury (about 1:05PM) but the jury may be out longer.
Judge wants to hear rule 50 motion – Smith speaking now.
Another defense attorney wants to file rule 50 motion but hasn’t yet. Moon says, the theory is that defendants conspired by planning to come to Charlottesville with idea that antifa or protesters would be provoked into committing acts of violence and that would justify…
Moon: …defendants taking retaliation. jury could infer, construe, in way favorable to plaintiff, and decide that the idea was to provoke violence but respond in greater degree than necessary for self defence. i think is sufficient evidence they could arrive against defendants
defendant atty; on 1986 claim, re prevent fields attack or torch march, not enough evidence my clients could have prevented that. Moon: question would be, if you anticipate a violent reaction, question is was fields conduct forseeable? re internet talk about cars into crowds
In as evidence a number of defendants congratulated fields and supported fields, indicate evidence that conduct by fields could have been anticipated as connected to the conspiracy . not planned by anybody but forseeable, not predict what they could be but.
Moon – that there was foreseeability.
Defendant attorney: it was that they affirmatively planned to engage in violence (not the provoking). first amendment argument you are allowed to be provocative. the argument defendants to make they did nothing offensive until attacked
defendant atty: there’s no other violence like shooting or car attack.. Moon; only liable for what is foreseeable. defendant atty: don’t think jury instructions say that now. Moon: i don’t think a specific type of violence has to be foreseeable but in the realm of possibility…
Moon; the rhetoric. the defendants explained their rhetoric. the jury doesn’t have to buy the explanation . they can take the words at face value. Defense atty differentiates diff types of violence. Cantwell cites Kessler interview about park, disorderly conduct charge, …
Moon: might agree w you (disorderly conduct not part of car crash). you invite people to the situation, there was chatter on the discord i believe, guys name from N Carolina, lets you run thru a crowd. no one said don’t do that to my knowledge. someone was thinking , was all …
over the internet . Cantwell: if we conspire to break speed limit, we don’t become responsible for other speed limit chatters crimes . Moon: Conspiracy its clearly virginia law. been giving this many many years. upheld many times. gonna get past rule 50 motion now
Plaintiff; circulated instructions w 1st amdt should be kept as drafted. they object 1442 kolenich filing and 1446 advocacy of violence. they say its highly misleading that’s why they wanted the fire policy. Moon wants to focus on the instruction.
Defendant atty (Kolenich i think); the federal conspiracy instruction is too unfavorable to us. can we add a sentence to make more plain that substance what you agree to is relevant. if a co-conspirator went way beyond it you are not responsible for that act.
Moon: it’s clearly Virginia law .. patterns applied to other orgs. Def atty: we didn’t put Evropa was an org at relevant times. Moon: proven something was incorporated. Plaintiff; court should give instruction circulated order today, consistent with yours in many cases prev.
Def atty: asks during lunch breaking if counsel can get something agreed on federal conspiracy instructions. if they just lay out plaintiff theory of case w.o instructing case, i think its prejudicial, lowers their burden of proof.
Moon says OK. Take a 30 min lunch break NOW
Afternoon session
(Numbers in this section refer to the 30+ parts of the jury instructions)
Back now. Jury instructions evaluation continues (Jury is still out). Defense wants foreseeability wording changed. Plaintiffs tried to be faithful to Bradley they say. This has to do with whether defendants should have foreseen a vehicle attack
When the jury was out before lunch Moon said that Discord chats regarding advocating vehicle attacks before the attack are related to this foreseeability. Plaintiffs are trying to avoid changes around here – re conspiracy, racial animus jury instructions
The plaintiffs used an instruction about conspiracy Moon himself gave about a 2019 conspiracy case. He’s moving thru the other sections of the jury instructions. Now touching on if Evropa’s incorporation – Moon says there is some incorporation of Evropa
The instruction about Evropa is important for Kline’s defense says his attorney – defense saying that they can find Kline operated on his own without Evropa being responsible say defense. Plaintiffs object saying it should be held out similar to UVA fire policy held out
Plaintiffs say that section 22, the defendants generally didn’t try to stop anything , they could have had some power to stop the conspiracy. Moon asks about evidence. Plaintiffs say Cantwell could have told other people to stop, at the leadership meeting; NSM, LoS, could have.
Cantwell says that ‘I want the police involved’ at the leadership meeting should be taken as trying to stop the conspiracy. Moon moves on to 23 civil conspiracy under VA law. Plaintiffs mention foreseeability. 24 re Virginia code, something about vandalism mentioned by Moon
Plaintiffs may argue that Aug 11 conduct could include vandalism in closing. Property of plaintiffs could involve vandalism but Moon says there is no evidence and it doesn’t take it away from the case, he will take it out.
25 assault and battery, 26 infliction of emotional distress. Defendants want that Kline’s been sanctioned, and they don’t want the jury to find against Evropa regarding a pretrial motion. There is a spillover instruction covering this say plaintiffs.
28 evidentiary sanctions against Kline. 30 is about First Amendment. Defense requests to add that it’s lawful to advocate for violence, and that it’s lawful to parade thru a residential neighborhood. Plaintiffs: proposed instruction is misleading…
Plaintiff: whole case is that its unlawful to do racist violence. Re the residential area this would confuse the jurors and this isn’t supported by case law (Cohen v CA, ‘f the draft’ case) and the Skokie case which didn’t permit a city to ban swastikas. which isn’t relevant here Plaintiff says the current jury instruction is good – Kolenich is citing a witness who was scared by people marching with torches. He says its legal to march with swastikas to scare a Jewish area (referring to Skokie). Plaintiffs say these cases don’t support Kolenich proposed
On instruction 31 – self defense, can’t be used as excuse for wrongful violence, defense claims it can’t raise these. Moon says this covers that. Defense says it’s only including state not federal. re if self defense is excluded from federal conspiracy claim
Moon says he’ll look at it. 32 negligences defense do not apply says Moon. Goes on to 33 and 34, duplicate damages. they are working on the verdict form. Collateral source role? Punitive damages? Moon going thru this list of jury instruction elements
Plaintiffs requested an instruction that Fields didn’t testify in defense because he refused at a properly noticed deposition. Plaintiffs want jury to know why Fields isn’t there, they want it to clarify, and why they didn’t call him. They might think why didn’t they call him?
Kolenich (defense) goes back to #13. re motions to dismiss, they want something included in federal conspiracy section about defendants agreeing to conspiracy. Plaintiffs say its already in the instructions. defense say its not in there and should be added.
Plaintiffs say that you have to reach an agreement with an individual to engage in a conspiracy, that that’s already clear elsewhere in the jury instructions. Cantwell says he thinks they’re trying to use expert testimony (Simi) to plant an assumption there’s a conspiracy
Judge Moon says there will be a recess (for an unknown time period). He is going to consider changes to the jury instructions and will come back – the attorneys could raise more issues then.
Court finally coming back now finally. Judge Moon says some claims by defendants have been dismissed. He’s been evaluating jury instruction related motions for about an hour
Moon says the claims are dismissed about Virginia hate crimes statute. Jury coming back
this has to do with resolving the final jury instructions that are going to be given now. These will be bundled into images here as it’s pretty dry – back and forths are not expected
Jury instructions about Conspiracy in Sines v Kessler: read out now from long document by Judge Moon
Plaintiffs claim that the defendants committed racially motivated violence. Alvarado does not claim it against Fields.
Points include:
Existence of a conspiracy of 2 or more persons. A kind of unlawful partnership where people become agents of each other. Need not prove it had only an unlawful purpose. May have several objectives, not all unlawful. Don’t need to prove a formal agreement or discussion of all points. No evidence of written or oral agreement needed because informal is sufficient. A shared objective of racially motivated violence. THey’re not required to show defendants were in facts parties to the agreement, or that everyone was named in the suit, or that they all agreed to all methods. By nature it’s clandestine and covert, resulting in little evidence. Can be proved by circumstantial evidence may include evidence of relationship, length of association, attitude and conduct. To find an agreement existed, you must be convinced by a preponderance of evidence to commit at least 1 unlawful act. Can be from rival groups. Coconspirators are held liable. Due to multiple defendants in case, need to consider which were in the conspiracy. Can become a conspiracy member without knowing all the details. If they know the plan or scheme in one occasion that’s sufficient even tho the person had only played a minor part. A conspirator’s membership is not measured by duration. May be separate, distinct act at different times. Some major roles, minor roles, not required to be an equal role. Even one act can be sufficient.
Plaintiffs may rely on direct and circumstantial evidence, with the other members, conduct before after and during events.
Moon says the conspiracy we are talking about, the conspiracy with a purpose to deprive right to be free from racially motivated violence. Not conspiring about something else.
2nd element: Must prove motivated by animus against Black or Jewish individuals. Purpose involved depriving their right to be free of racially motivated violence. To find that a defendant withdrawn from a conspiracy, undertook affirmative steps to disobey or defeat the conspiracy. Either acted in a manner that he notified others he was no longer involved or disclosed to law enforcement authorities. Inaction is not enough. If he acts in furtherance that is not withdrawn. If you’ve concluded they are in it, they bear the preponderance burden to prove they withdrew. Must be affirmative proof.
The element of discriminatory animus. Plaintiffs must prove motivated by dislike or hate, Jewish people, Black people, or advocacy or support for Black or Jewish people. As long as the dislike or hatred is not specific to individual. If intent to discriminate against Black / Jewish people or their supporter as a class you can find they acted with animus to the class. If you find you must find for the plaintiffs even if there is some other motive like joining together for mutual protection, they could still have other legal objectives.
42 USC s 1985.3 . to deter 2 or more people to conspire of depriving rights of racial minorities. plaintiffs claim 13th Amendment violation right to be free of racial violence.
4th element. at least one of the defendants took an overt act, performed by at least 1 member of the conspiracy. it could be an act innocent when considered alone. only a single overt act must be proven by plaintiffs about a conspirator.
Injuries include pain and suffering, economic losses, demonstrable harms. Can be satisfied that conspirators acted or caused to be done, harms to plaintiffs. Need not ID a specific person. Its ok to show that they were proximately caused by the defendants unlawful actions, if it was a substantial factor in the injury and a reasonable forseeable consequence of the defendants act. They needn’t be connected to the specific type, but could simply be as the same general nature as the forseeable nature of the conduct. Need not point to each defendant about the injuries since they would all be responsible even if they didn’t personally participate in the acts. Or even if they didn’t have knowledge as long as they were reasonably forseeable. As a coconspirator is deemed to be an agent of the other members of the conspiracy. So they share responsibility.
They didn’t need to be named in the lawsuit. if they find he was a member of the conspiracy then anything done by that person may be considered against defendants.
Some of these may be unincorporated associations, a voluntary group of persons joined by mutual consent for stated object. these can presecribe conditions or qualificiations, to enlarge and decrease membership and activities, and dissolve association. it could be found that one of these defendants was an unincorporated association it must be found organized group, subject to rules and bylaws. any defendants that’s an uninc. assn, may be liable for actions of its members in the conspiracy if they acted with the authorization of the associations purpose. but it cannot be held liable for the actions of members it didn’t authorize. but intention to ratify later may be inferred by actions of its officers to affirm unauthorized actions. ratification can only occur if they have (facts in question paraphrase).
a defendant in an organization may also be held liable if they participated in unlawful acts if it culminated in wrongful conduct. membership in the assn is insufficient. must show it held unlawful goals and the individual tried to further unlawful aims.
some of the defendants may be corporations. under the law the corporation is a person. it can only act thru employees, officers. it is responsible for actions of its employees and officers .. subject to corporation’s control. it may be liable even if agents don’t receive compensations. if you find it liable they must prove 3 preponderance: comitted by agent/employee. acting within scope of authority. in committing it, acting on behalf of corporation. scope of employment includes anything falling in line of work. when motivated in part by intent to benefit corporation. may act for own benefit and for corporation at same time. within employment or authority the corporation is held legally responsible even if their actions may be unlawful and contra their instruction. even though the conduct may be contrary to instruction or stated position. a corporation that ratifies someone purporting to be an agent it will be liable if the principal made decision to approve the act if they were in possession of relevant knowledge.
its possible for corporation to conspire if person had stake in conspiracy. would have to act thru a different person than someone with an individual stake in it . it is possible for individual/officer to conspire with people besides those in the organization.
all plaintiffs except alvarado bring all defendants. alvarado doesn’t bring against fields. 1985(3) conspiracy and 1986 section. they do not have to share the same discriminatory animus. in 1986 they must prove 1985(3) and the following:
- that they knew about the wrongs even if not involved
- that they have power to prevent aid in preventing the wrongs committed
- neglected to prevent such wrongs.
doesn’t require them to prove involved in the conspiracy but neglected to prevent the wrongs.
re civil conspiracy in virginia law claim separate from federal. by conspiring unlawful and tortious actions. except for Alvarado didn’t bring against Fields. persons that conspired together they may be held liable, to commit 1+ unlawful acts. subject to harassment, ethnic animosity, aka Virginia hate crime statute. directing vandalism at a property based on animosity. (strikes vandalism). commiting unwanted touching aka battery. engaging in overt act to inflict bodily harm or put in fear or apprehension of bodily harm (assault) or false imprisonment. each unlawful act has things must be proved. ex false imprisonment holds a person using force words or acts, which person restrained is afraid to ignore. any intentional restriction of freedom (…) is a a false imprsionment. they only need to prove one of these to impose liability. the VA law only requires them to prove if its part of the act – its not required to prove the conspiracy to prove (assault combined with animus)
plaintiffs must prove by preponderance of evidence that an agreement to commit any one of these existed. it is sufficient if the conspiracy that the alleged conspiracy existed to commit one of these offenses.
Also re VA hate crime statute. Romero and Willis claim against Kline SPencer Kessler Ray and Kantwell re racial harassment violence.
Romero Muniz Wilspelway Sines Blair Martin and Willis bring standalone claim against Fields. To prove they must beyond preponderance that they subjected them to intimidation and or violence directed atht epersons. only one of these acts need be shown. acts may not need violence to satisfy the statute. intimindation or harassment can include slurs, threats. term violence has ordinary meaning, can include assault, battery by defendants, as defined shortly.
plaintiffs muniz, sines blair martin baker and romero bring standalone claimf or assault and battery against fields. battery is unwanted touching without justiciation / excuse. assault is a threat. words alone are never assault. they must prove that preponderance of evidnece that defennatn intended to inflict harm. plaintiffs experienced apprehension of harmful of bodily contact and they did experience bodily contact unjustified and unexcused. not necessary to prove it cause injury. only that it harmed their mind or feelings.
muniz, sines, blair, martin, baker and romero bring claim of intentional infliction of emitonal distress against defendant fields. they must meet preponderance standard by clear and convincg evidence. must give a juror firm belief or conviction. intermeidate standard more than preponderance but not as much as reasonable doubt standard. 4 things required;
- had defendant had purpose of inflicting distress on plaintiff. conduct likely to result in distress.
- outrageous or intolerable in generally accepted standards of decency and morality.
- severe emotional distress that no reasonable person could be expected to endure.
- that the distress was proximately caused by defendant conduct.
no physical injury required.
parties entitled to disclosure of non privileged evidence. pre trial discovery. in this case found Kline and Azzmador Ray failed to comply with discovery obligations. Moon imposed sanctions to establish as true vs Kline: (Note that these numbers are paraphrased – proper list may be different in how it divides points)
- Kline was one of leaders of Identity Evropa 2017.
- Kline entered into agree with conspirators engage with racially motivated in 11 12 aug 2017. whether others are co-conspirators is for the jury.
- kline was motivated by racial animus .
- was reasonably foreseeable that conconsirators would commit acts of racially motivated violence. whether they the coconspirators are defendants is for the jury.
- kline ratified the racially motivated at the event.
Azzmador Ray sanctioned with following facts:
- Ray was writer for Daily Stormer July 2016-Mar 2020. 2. Ray entered into agreement to commit racially motivated violence on Aug 11 12. whether they are defendant co conspirators is a jury question.
- was motivated by animus against racial minorities.
- foreseeable by ray that they co conspirators would commit racially motivated violence. whether that’s defendants is for the jury.
- Ray ratified the racially motivated violence that occurred
cautioned each party is entitled to have case decided solely by the party. taking those facts to be true for the case against Kline and Ray, but doesn’t relieve plaintiffs to prove other defendants with preponderance. nor doe sit have any specific bearing on defendant Identity Evropa
During discovery, Kline, Azzmador, Heimbach, Vanguard America and Natl Socialist Movement failed to comply with discovery. they destroyed documents and electronic info. on account of this, Moon imposed a sanction they are permitted but not required to infer that they withheld or destroyed info that they were aware that they each conspired to racially motivated violence.
each party is to be decided individually. some of the evidence is limited under rules of evidence. Ike baker, froelich, griffin, hopper, pistolis, rousseau depositions may not be considered in relation to cantwell.
first amendment does not provide defense of conspiracy to engage in unlawful conduct. if you find they have violated law, you may find it is not protected by first amendment. agreements may engage in the form of words does not confer upon it or the conduct protection under the first amendment.
self defense. some defendants claim much of their conduct was motivated by self defense considerations. if plaintiffs prove it was motivated partly by racial animus but mutual protection is not an excuse. each element of the claim considerations of self defense may not defeat the claim. you may consider defendants assertions or other parties, that it was motivated by self defense rather than goal of racially motivated violence. similar Virginia state law.
self defense is an affirmative defense where defendant prove by preponderance of evidence. if threatened by assault and battery may use enough force to protect himself. however may not react with reasonable force unless they have reason to avoid bodily injury. may use force to repel bodily injury. only if no greater force than the means .. than that which would appear to a reasonable person to be necessary. self defense is not available if they provoked or initiated the conflict. only can claim if they were in response to unprovoked attack. they bear burden of preponderance if they were threatened that they found it reasonable that they were going to inflict bodily force – other conditions like using in like circumstances. may only use the amount of force to avoid the harm about to be inflicted on self. deadly force is only allowable when they think deadly force will be used on self.
negligence defenses are not valid defenses, sudden emergency, urge you to disregard.
damages generally. if they have proven one or more claims you must determine damages. the purpose is to award just and fair compensation for the losses. compensatory damages seek to mkae a plaintiff whole, to compensate for damages suffered.
you shall consider any of the following: any bodily injuries, emotional distress they suffered, reasonable medical expenses, disfiguration, deformity, humiliations, inconvenience, earnings loss, lessening of earning capacity, any property damage.
verdict shall be to sum for fair compensation. they don’t have to prove exact but have to prove circumstances for reasonable estimates. the jury must determine the damages.
if you find they are entitled to damages you should not award duplicate damages for more than one award of money for the same loss, injury, violation, wrong, damage. may recover only once.
collateral source rule; you should not reduce damages based on insurance benefits, or govt benefits or gratuities.
punitive damages are to punish defendant for extreme or outrageous conduct. may award if the actions were done wantonly or maliciously. if prompted by spite towards injured purson. wanton if with reckless or callous disregard. if you find with malicious intent, or unlawfully injure, you may award punitive damages if you find it meets requirements. it is discretionary. you may decide not to award them.
punitive damages may deter other people from similar actions in future. consider if actual damages are inadequate. consider if actual damages will deter similar conduct in future, if punitive damages are necessary for deterrence. consider if it will deter similar wrongful acts. if you decide to award punitive damages keep in mind. fix the sum to be awarded consider if they should be punished for wrongful conduct.
End of main jury instructions
Judge Moon tells them to go back to the jury room for a few minutes – after this is done we will drop in the whole text from just now. Moon is taking objections without the jury. Kolenich is talking about Kline’s issues specifically
Kolenich made some kind of mistake about Kline and Damigo. going back to point 13. Kolenich wants forseeability addressed with Virginia vs federal law. Cantwell says re Simi expert, that Simi was helping shortcut the conspiracy requirement via his testimony
Plaintiff atty re co-conspirator line, in #13 jury instruction, position is defendants are taking language out of context. They say Moon was following pattern of instructions, not to envelop all the rallygoers into conspiracy. Informal agreements are sufficient. (agreeing w Moon)
Kolenich can’t find self defense section. that it can be used with VA claims, but that they can’t apply self defense to federal claims (someone says that’s not what he said) Moon doesn’t know why it would be different. Plaintiff says Kolenich is misrepresenting
Plaintiff says that mix of legal and illegal motives can establish conspiracy. It’s not a defense to the conspiracy claim, Moon has given that before. Cantwell says its about preparations of use of force was done in self defense
Defendant atty claims that ‘separately’ is the problem re state / federal instruction difference. Moon says we can make that. Cantwell talking #31 instruction, it says they ‘may’ consider. He asks if it’s optional for jury to consider self defense. Plaintiff say “may” is correct
Cantwell is trying to litigate a weird phrasing about #31 about ‘may’/’must’ re self defense but he’s finally dropped it. Moon says “you must consider all relevant evidence” should be inserted above that somewhere (it seems?
On hate crimes statute area plaintiffs found a typo on #24 Sines was spelled wrong. Plaintiffs confirm jurors will get everything in print. Another defendant tries to join with the other motions. .. slowly nearing the point of bringing the jury back here
ReBrook for defense is trying to address the court and a hopelessly weird fragmented sound, like, fragmentary alien bleeps and bloops, is emitted, presumably a corrupted audio application
“I just don’t think this is gonna work,” says Moon
some phrase changes seem to be accepted. Plaintiffs don’t want #13 being changed but it is. “Separately” is being removed from #31. Moon calls the jury back in. Moon to jury: 2 corrections in instructions. In #13 at the 2nd paragraph last sentence, ‘all plaintiffs must show is an agreement to cause racially motivated violence’ is new language.
#31 ‘you must consider all relevant evidence as stated in other relevant instructions’ Moon says, self defense may be relevant – re #31.
Re defendant Fields, Moon says he was absent because he refused to testify at a noticed deposition. To level the field court issued sanctions to prevent him from testifying at his defense in his trial.
Closing arguments tomorrow
The jury is excused now with these tweaks – now the judge is leaving and the day concludes. The jurors will get a copy of these voluminous instructions.
Thanks for joining us – see more from Unicorn Riot here.
Closing arguments will be at the start of tomorrow – 2.5 hours for plaintiffs and 3.5 hours for defendants. Then the jury will start deliberations on if defendants are liable, and possible compensatory & punitive damages.
Stay tuned as we will be back covering this again live.
The jury instructions totaled around 20 pages. Thanks for joining us today!
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