This transcript is for Episode 0 of a podcast produced on November 24, 2018. The audio is available here.
Hello friends, comrades, neighbors, and nazis who wish I would die but wouldn’t know where to get their news if I did. This is episode zero of a short term podcast covering the upcoming trial of James Alex Fields.
I want to say right at the top that coverage of this trial will contain graphic descriptions of what happened in downtown Charlottesville on August 12, 2017. I’ll include this reminder at the top of every episode and try to be specific about which episodes contain descriptions of testimony or evidence listeners may find disturbing… which will probably be most episodes.
I’ll say now, too, that James Alex Fields is, legally speaking, innocent until proven guilty. I can’t imagine a world in which jurors watch what is sure to be hours and hours of video evidence from every conceivable angle, including helicopter footage that tracks him from before the attack through his arrest, and makes any other determination… but this seems like the kind of disclaimer that’s responsible to include. I’ll forget to say “allegedly” every time I discuss the crimes, but consider this a blanket “allegedly.”
And, at the risk of stacking too many disclaimers here at the top, I should tell you that I am not a lawyer. I have no educational or professional background in law, law enforcement, or criminal justice. I’ve spent a lot of time in court this year and learned quite a bit, but there’s still a strong possibility that I’ll get some of the finer points of the law wrong. With that said, let’s get on with the show.
I think everyone listening to this right now already knows what Fields is accused of. I think everyone on earth probably knows. Then again, when Jason Kessler was tried for perjury earlier this year, there were people in the jury pool, residents of Albemarle County, who claimed to be unfamiliar with the events of August 12, 2017. One woman, when asked about Kessler, thought for a moment then said “I think… he wanted to take the statues down?” even Judge Higgins did a double take and asked her if she was sure about that.
For anyone listening who has the strange luxury of this kind of ignorance, nazis marched in our streets. They came with shields and guns and body armor and hate. They came ready to commit violence, and some of them did. Some of those men have already been convicted — Jacob Goodwin and Alex Ramos, two of the men who brutally assaulted Deandre Harris in the Market Street parking garage that day have already been sentenced. Tyler Davis stands trial in February for his participation in that beating. Richard Preston, a former klan wizard, has been sentenced for firing his gun outside of Market Street Park. There are civil lawsuits involving dozens of plaintiffs and defendants that will linger in our courts long after the news cycle has forgotten them. But the trial starting next week is for the attack that changed the meaning of “Charlottesville.”
Charges
James Alex Fields drove his Dodge Challenger through the crowd on Fourth Street that day, killing Heather Heyer and injuring dozens of others. For this, he has been indicted on ten charges:
- 1 count of First degree murder, a Class 2 felony with a possible sentence of 20 years to life
- 5 counts of Malicious wounding, a Class 3 felony with a possible sentence of 5–20 years per count
- 3 counts of Aggravated malicious wounding, a Class 2 felony with a possible sentence of 20 years to life per count
- 1 count of Failure to stop at the scene of an accident resulting in death, a Class 5 felony with a sentencing range of 1 to 10 years
If he is found guilty on all of these charges, he faces a minimum of over 100 years in prison. None of the charges in the state case are capital crimes — Fields cannot be sentenced to death in this case. The federal hate crime murder charge could potentially carry a death sentence, although it’s not clear at this time if prosecutors will seek it. He’s been indicted on 30 counts federally, including 28 separate counts of a hate crime causing bodily injury with intent to kill, representing 28 individual victims — the federal trial will take place later on.
Past appearances
While the trial itself starts next week, there have been several hearings this year ahead of the trial that may give us some idea of what to expect. The bulk of the pretrial motions hearings have been pretrial conferences in the judge’s chambers — There have only been a few appearances of note where anything of substance has been discussed in open court — the preliminary hearing in December of last year, the federal arraignment in July, and the defense’s motion for a change of venue in august.
Preliminary hearing
December 14, 2017
I’ll remind you, again, that this will contain descriptions of testimony that may be disturbing to some listeners, particularly folks with trauma from august 11th and 12th.
A preliminary hearing exists to determine whether or not there is probable cause to certify the defendant’s charges to a grand jury. This has been the only hearing in this case so far where evidence has been presented, making it a small window into what we might expect from the trial. At this one hour hearing, the murder charge was amended from second degree to first and we heard testimony from Detective Stephen Young.
Detective young testified that around 1:20pm on August 12, 2017 a group of counter protesters converged, marching peacefully down the downtown mall.
A maroon van and a white sedan were stopped on the Fourth Street crossing — Detective Young emphasized in his testimony that the counter protesters did not engage with these vehicles in any way. A gray Dodge Challenger turned onto Fourth Street from Market Street, idling briefly on the mall. Young notes in his testimony that there was no crowd on Fourth Street on the Market Street side — there was nothing preventing the Challenger from simply reversing course back onto Market Street. Instead the Challenger drove at what Young called “a high rate of speed” into the crowd, hitting the white sedan.
During his testimony, Detective Young used a laser pointer to show the judge pictures of blood on Fields’ car, a pair of sunglasses lodged in the spoiler. He had to be reminded by Assistant Commonwealth’s Attorney Antony several times not to trail off — this was clearly very distressing for him.
Red Pump Kitchen footage
While very little argument was made during this hearing, the way the evidence was shown allows us to make some guesses about how they’ll discuss it at trial.
The security footage from Red Pump Kitchen, a restaurant on the downtown mall at the Fourth Street crossing was shown. While it had a very limited angle (the camera’s purpose seems more intended to capture people coming and going from the door below it as opposed to traffic across the mall), it provides a useful time reference. In this footage, you see Fields’ vehicle pull onto the mall, then his car is out of frame for one minute and ten seconds before it re-enters the frame in reverse.
This indicates the challenger idled on the downtown mall for about a minute prior to the attack. This will be relevant at trial — the state must prove premeditation. The Virginia state code defines first degree murder as “willful, deliberate, and premeditated.”
The helicopter footage
It was during this hearing that the Virginia State Police helicopter footage was shown for what I believe was the only time. This footage is particularly chilling — you can hear audio of troopers Burke Bates and Jay Cullen reacting to witnessing the attack, just hours before their own deaths when their helicopter crashed.
They track Fields’ car from the attack through downtown, into Belmont, until he comes to a stop on Monticello Avenue. You see him think about driving away again before surrendering. The shot is low enough that you can see Fields put his hands out the driver’s side window when ordered to do so by the first officer on the scene, then he’s pulled from the car and put on the ground.
Detective Young testified that the first thing Fields said to him was “are the people ok?” and that he kept repeating, “I’m sorry.” When the officers on the scene asked if he needed rescue services, Fields allegedly told them that he would rather all available ambulances be directed to the scene on Fourth Street. When he was later told that someone had died, Young says Fields was shocked and that he cried.
Defense cross examination
The defense’s cross examination of the sole witness at this hearing was brief — barely ten minutes.
During her cross examination, Denise Lunsford provided the only preview we’ve been offered of her trial strategy and it’s grim — I’m very worried we’re about to hear three weeks of 4chan conspiracy theories, namely the argument that he was just confused and scared and “antifa attacked the car,” based on her questions about the smashed rear windshield (which Young testified during presentation of video evidence was not smashed until AFTER the initial impact in the attack) and the presence of what may have been urine on fields’ shirt.
She asked Young about the yellow stain on fields’ shirt, which Young said “smelled like urine.” It felt like Lunsford was trying to nail down a narrative about Fields panicking and hitting the crowd after urine was thrown at him in his car, but Assistant Commonwealth’s Attorney Antony was clear in her closing that there is no evidence anything was thrown at the car prior to the attack — any urine (or any other substance) on fields’ shirt must have gotten there earlier in the day.
Lunsford pressed Detective Young for proof of Fields’ affiliation with Vanguard America, to which he replied Fields was carrying their insignia but there was no proof he was a member. Much has changed in the last year — I don’t have abundant faith in the state but I have to assume the Commonwealth’s Attorney’s office is, at the very least, availing itself of the ample information offered freely by antifascist researchers that has connected Fields to the people he marched with that day.
The most interesting aspect of Lunsford’s cross examination of this witness was a brief mention of three mysterious men with whom Fields walked back to McIntire Park that day. Fields gave these three unnamed men a ride somewhere, dropping them off just before the attack.
The identities of the three men must be known to law enforcement, as Lunsford referenced sworn statements they’d given. The three men, who claim they only met Fields that day, say there were no weapons in Fields’ car. One of them described Fields as “significantly less radical” than other Unite the Right participants and that he saw no signs of anger or violence in him. I’m not sure if an unnamed participant in a nazi street riot is the best arbiter of truth on the matter of who is or isn’t violent or angry, but it will be interesting to see if these men are called to testify.
The December preliminary hearing lasted only an hour, and all charges were certified to the grand jury.
Federal Arraignment
July 5, 2018
While not related to the state trial, I mention this because it’s the only time I’ve heard it mentioned in court that he is receiving treatment in jail for mental illness. He told the judge that he is taking medication for bipolar disorder, anxiety, and ADHD — the only medication he named specifically was risperdal, an antipsychotic whose on-label uses include treatment of schizophrenia and bipolar disorder. At this appearance, much more so than most of the others, he seemed drugged, his answers were stiff and robotic.
Motion for change of venue
Motion heard August 30, 2018
Fields’ attorney, Denise Lunsford, does not think her client can get a fair trial in Charlottesville Circuit Court.
Unfair news coverage
She presented a binder with 250 local news articles within the year after August 12, 2017 discussing the impact of that day on the community. Lunsford says the media coverage has been “inflammatory,” citing content like “Heather Heyer died because of white supremacy” and “Heather Heyer was murdered.” I’m not sure what exactly is inflammatory about either of those statements, but particularly the second one — it is quite literally what her client is charged with. First degree murder. Of Heather Heyer.
She went on to say that “almost every article that mentions Mr. Fields mentions terror or terrorism” and refers to him as a neonazi or a white supremacist and that she was “not here to argue whether or not that’s true, but how it affects the community and the ability to get an impartial jury.”
The media’s focus on dealing with trauma and ridding the community of white supremacy, she argues, “turns him into an example of what the community is trying to deal with when it fights white supremacy and racism.”
Too traumatized to be unbiased
I have a little trouble wrapping my mind around the next argument Lunsford makes: that this community is too traumatized to be fair to her client. She cites various community resources available, everything from Congregate’s Service for Repair, to the city’s own Resilient Cville website, to the free trauma counseling offered at the public library after August 12th last year.
Lunsford says “the trauma has to be so significant that the city has a designated website” and “free services were offered.” She says even the courthouse’s proximity to the Fourth Street memorial is a problem — citing the inflammatory nature of the city’s use of the words “terror attack” at the dedication of the honorary Heather Heyer Way.
Lunsford says everyone in this community was affected by the events of August 12th — “Every time you pass a Heather sign, every time there is a protest, every time there is an arrest because of a court decision, every time there is chaos at city council” the effects on this community are everywhere, making it “difficult or impossible” to find a jury here.
This is wrong in nearly every direction — it’s logically unsound to imply the existence of resources means everyone in the city, in the jury pool, needed or availed themselves of those resources. It’s wrong to imply that needing counseling makes you unreasonable and incapable of being impartial. It’s wrong to equate honoring Heather’s memory with being incapable of logic or reason. It’s wrong to blame the victims of your client’s actions and to say that the reasonable reaction of this community to what he did renders the community incapable of carrying out its legal duties and obligations.
It is also a fundamental misunderstanding, or perhaps more likely, an intentional misrepresentation, of the law. The law does not say that you can’t serve on a jury if you have FEELINGS about an event. People with a teal heart sign in their window can and will set aside their personal beliefs and hear the facts of this case.
Judge Moore’s (in)decision
While Judge Moore affirmed that Lunsford’s motion was well-presented and the concerns were “legitimate,” he refuted her argument that the local news coverage had been inflammatory, saying the coverage he’s read “does not appear to me to be anything other than factual and non-inflammatory” and noted that while the coverage Lunsford presented was local, media in general is not localized anymore, people in Richmond, Winchester, or Roanoke (all cities that could have been considered for the new venue) could’ve read any one of those articles.
Ultimately this motion was only taken under advisement by the court — Judge Moore made no ruling on it that day. He said that he could “not find it is reasonably certain that Mr. Fields won’t receive a fair trial” in Charlottesville.
He reminded counsel that jurors do not have to be ignorant of the facts, they just need to be able to be impartial; that they can have opinions, they just need to be able to set them aside, which is the entire purpose of voir dire. He cited the relative ease with which juries were seated in the Goodwin & Ramos cases — felony malicious wounding trials also arising out of the events of August 12th that the same court heard in May.
Every attempt will be made to seat a jury next week. In the unlikely event that they are unable to seat a jury, the trial may still be moved.
Jury selection
In terms of jury selection, the best guesses I can make about what this will look like are going to be based on what I’ve seen in the past. Judge Moore cited the two other felony jury trials arising from the events of August 12th that the Charlottesville Circuit Court has heard this year — Jacob Goodwin & Alex Ramos. In both cases, a jury was seated by late afternoon on the first day of trial.
Past cases
Jacob Goodwin — 4/30–5/1/2018
A jury was seated at 3:30pm on the first day of his two day trial.
It’s not entirely worth getting into the substance of voir dire conducted in this case, given Goodwin’s lawyer was Elmer Woodard. Woodard’s approach is… unusual to the point of being irrelevant, including many comments the judge ordered stricken from the record and a curiously long aside about his fondness for Perry Mason.
Alex Ramos — 5/2–5/3/2018
Alex Ramos’ trial took place the same week & also saw a jury seated before 4pm on the first day of trial.
A pool of 122 potential jurors were called the day of the trial. 19 people were eliminated ahead of time based on their responses to the questionnaire.
Things you might assume would be automatic strikes really aren’t under the law — as long as a juror believes and is able to say, under oath, that they can be impartial, a surprising array of situations are not disqualifying
One juror used to work at the same place as the victim (Deandre Harris) and admitted she knew him well enough to say hello. She said she wouldn’t have trouble hearing the case impartially and was seated.
Having spent a significant portion of this year sitting in Judge Moore’s court, I kind of feel like I’ve gotten to know him a bit. I think he’s been preparing himself for Fields’ trial all year. I’ve heard him make quite a few statements that I feel he on some level, probably even consciously, intends to be about more than just the case at hand, statements to set the stage for Fields’ trial. This one from during Ramos’ jury selection feels particularly relevant to next week’s voir dire -
“This trial is not what you think about white supremacy or antifa or SURJ or the KKK. It’s about whether Mr. Ramos did what he was charged with. The ultimate question is not whether you feel strongly, it’s about whether it would prevent you from hearing the evidence.”
“Everyone feels strongly about child sexual abuse but a jury can still make factual decisions”
While not related to August 12th, the best available comparison may be the 2012 murder trial of George Huguely, the UVA lacrosse player who murdered his girlfriend Yeardley Love in 2010. This was last trial in the city to approach this kind of scale in terms of national media attention.
In that case, voir dire lasted two days. Some articles indicate 160 jurors were brought in the first day of the trial, while others state that the jury pool was 320 people — I would assume this means half of the jurors were struck based on the questionnaire.
What to expect Monday
Like Huguely’s trial, the media coverage is a significant logistical issue for this trial. Courtroom space will be limited and security will be tight.
Joe Platania, the Commonwealth’s Attorney, has said he expects jury selection to take two days. This is consistent with the Huguely case, and makes sense when you consider the jury pool is twice the size of Goodwin’s or Ramos’, cases in which voir dire lasted the majority of a day.
Statements from the Commonwealth’s Attorney’s office on the size of the jury pool earlier this year put it at 360 people, but Platania said last week that fewer than 200 people are being asked to report to the courthouse on Monday, indicating that a significant number of potential jurors were eliminated based on their responses to the questionnaire sent out to members of the jury pool ahead of time.
The questionnaire
The juror questionnaire in this case is ten pages long and includes many of the standard questions you’d expect: do you have any special circumstances that would keep you from serving, do you know or are you related to any of the parties in the case, are you party to any litigation arising from the events of August 11th & 12th, how much media have you consumed about the events, etc.
But it also asks things like, did you or anyone in your household make ANY CONTRIBUTION to ANY kind of fundraiser in support of anyone killed, injured, or affected by the events of August 12th. Granted, saying yes to any individual question isn’t necessarily sufficient reason to strike a juror. This is just a hint as to what issues the defense may take up with individual jurors during voir dire. But this one strikes a real nerve for me — it’s another instance of Denise Lunsford arguing that compassion for the victims of a terrorist attack, a community coming together trying to heal, is in direct opposition to the possibility of a fair trial — that the existence of kindness is unfair to her client.
And again with the idea that seeking counseling is indicative of the inability to be unbiased, the very next question asks if the juror or anyone in their household has sought counseling as a result of “any of the events” of august 12th.
The questionnaire also asks if the juror or anyone in their household likes or follows a number of entities on any social media platform, including Showing Up For Racial Justice (SURJ) and Vanguard America, the white supremacist group Fields appears to have marched with on August 12th.
It is likely that every juror’s social media profiles have been reviewed by the private investigator hired by the defense — one of the matters addressed at the August 30th hearing was a request for additional funds for this. It seems surprising, but it does appear to be fairly standard — again looking back to Jason Kessler’s perjury trial in March of this year, one potential juror was aggressively questioned about “bias toward white men” she expressed in a Youtube video she had posted.
As Judge Moore has reminded the courtroom time and time again this year, simply having knowledge of, or even an existing opinion about, the case is NOT sufficient reason to bar someone from serving on the jury. He’s made repeated statements during other trials this year that the only requirement is that the juror can set aside their personal beliefs and feelings and hear the case impartially.
The three-week trial starts on Monday, November 26. Unlike Fields’ attorney, I feel like this case belongs to the people of Charlottesville. Our justice system is neither rehabilitative nor restorative — convicting Fields will not heal the people hurt nor will it bring back the life that he took. I’m not even sure it will provide meaningful closure. But I hope that by bearing witness to these proceedings and reporting back to you that I am able to make whatever closure is possible accessible to more people than will fit in that courtroom. I’ll talk to you again Monday night with an update from the first day.
