CHARLOTTESVILLE — From his bench in the federal courtroom, Judge Norman K. Moon questioned the potential jurors one by one, asking their opinions on Black Lives Matter and antifascists.
Four years after the events of the Unite the Right rally weekend — which was related to a permitted demonstration to protest city plans to remove a statue of Confederate Gen. Robert E. Lee — white supremacists have returned to Charlottesville, this time for a trial in which a jury will decide whether the rally organizers conspired to foment racial violence.
From the opening of trial, a challenge became clear: How to find an impartial jury when the defendants are some of the nation’s most visible white supremacists?
The jury questionnaire reads like a culture-war bingo, with questions on statues of Confederate leaders, Black Lives Matter and far-left antifascist activists, specifically asking: “Are you familiar with ‘Antifa'?” Not even the judge seemed to understand the antifa movement, questioning whether it is something people sign up for. Potential jurors tripped over terminology, conflated groups and interjected their political views into proceedings, displaying how divided the country is on the subject of racism and how the understanding of what it means to be impartial varies from person to person.
Although all parties aimed to finish jury selection within two days, it will continue on Wednesday.
“We have had such a difficult time, during the course of two days, to find qualified jurors,” plaintiffs’ attorney Karen Dunn said in court on Tuesday.
In a case that centers on highly volatile and well-known events, legal experts said it would be difficult to find jurors who do not have strong feelings. And when it comes to issues such as race and white supremacy, they said, claiming to be neutral is also a bias.
Less than a day after the deadly Unite the Right rally, conspiracy theorist Alex Jones of Infowars began circulating an alternative reality, arguing the horrendous weekend was a plot from the far left. The same type of baseless claim has popped up in the aftermath of the Jan. 6 attack on the U.S. Capitol.
“People that express neutrality regarding issues that practically demand a point of view are themselves expressing a point of view,” said Lolita Buckner Inniss, the dean of the University of Colorado Law School, who has studied Black Lives Matter and legal history.
“Given the country in which we live, in 2021, I’m not sure that anyone could in good faith allege neutrality unless at the same time, they are alleging complete absence of knowledge,” Inniss said. “What you ideally want is not someone who is a blank slate, but rather someone who has an open mind.”
Plaintiffs’ attorneys, led by prominent lawyers Roberta Kaplan and Karen Dunn, are using an 1871 statute designed to protect newly emancipated Black people from the Ku Klux Klan as the grounds for this suit against modern-day hate groups. Civil rights nonprofit Integrity First for America is backing the lawsuit.
The plaintiffs are diverse members of the community and include four people who were struck when a 20-year-old avowed neo-Nazi and defendant in this case, James A. Fields Jr., plowed his car into a crowd of counterprotesters, killing 32-year-old anti-racist protester Heather Heyer.
At least two KKK factions are represented among the defendants, who also include Jason Kessler, the organizer of the Aug. 12, 2017, Unite the Right rally; Richard Spencer, who led the previous night’s torchlight march across the University of Virginia campus; and Matthew Heimbach, a white-nationalist leader with ties to far-right factions in Eastern Europe.
Many of the prospective jurors on Monday expressed lasting anguish from the events of 2017. Prospective jurors also said they knew Heyer and other people who were counterprotesting or injured that day, including DeAndre Harris, a Black man whom white supremacists brutally beat in a parking garage.
The questions Moon asked them foreshadow the type of flash points that will arise during this weeks-long trial.
The prospective jurors were asked in a questionnaire if they were concerned about prejudice against people who are Jewish, Black, Hispanic and White, or involved in groups including Jewish Community Centers, the American Civil Liberties Union, the NAACP or the Institute for Historical Review, which promotes Holocaust denial.
One juror who works on a farm said in court Monday that “as a community we want to get it behind us and see justice done.” In his questionnaire, Moon said, the juror indicated he would not be able to overcome preconceived notions about the Unite the Right rally, stating, “These people are terrorists.”
“Do you think you can set aside that opinion?” Moon asked.
“I’m sorry, but I don’t think I can,” the juror said.
Another potential juror, who indicated she disapproves of removing statues of Confederate leaders partly because of “Southern pride,” said Tuesday she believed “the Black Lives Matter movement and the antifa movement” were responsible for the “violence and chaos” during the Unite the Right weekend. She then said there was a “White side that came in, the White activists, the KKK … they created a race war in Charlottesville, in our city.”
Moon excused both these jurors “for cause,” meaning he did not believe they could fairly adjudicate the case.
Attorneys on both sides and defendants representing themselves are also able to make their case why a juror could be excused “for cause.” If Moon deems a juror qualified, each side also has a limited number of jurors they can eliminate without a reason.
The issue of prospective jurors’ views regarding a loose collection of anti-fascist protesters, also referred to as antifa, arose often, notably with a prospective juror who indicated on his questionnaire that he viewed antifa as “troublemakers.”
“It seems like to me like they’re always involving themselves into racial riots and stuff and causing a lot of problems,” the prospective juror told Moon on Monday, explaining that his views on antifa were shaped by what he hears on television. “I don’t know any of them, and they don’t bother me.”
Moon asked if this prospective juror could still evaluate the case without being influenced by what others may have done.
“I was told if I want to be on the jury that you’ve got to be open-minded, and I feel like I am.” the man replied.
As the juror left, both sides sparred over whether these views were disqualifying, and Moon sought clarity: “I don’t know the structure of antifa. Do they have members sign up?”
“It is not something that someone carries a membership card for but neither is white nationalism,” said defendant Christopher Cantwell, who was dubbed the “Crying Nazi” after a viral video showed him weeping upon learning that he was wanted by authorities in connection with the rally. Cantwell, who has quoted Hitler in court documents and was dropped by his attorneys in part for allegedly threatening a lawyer for the plaintiffs, was representing himself in the trial.
The plaintiffs’ attorneys had submitted a brief on Sunday that the court should excuse jurors with “extreme views about ‘Antifa,’ ” saying the defendants are trying to blame “their violent conspiracy” on antifa.
Ultimately, this prospective juror — who had called antifa “troublemakers” — was one of the few selected so far to possibly serve.