Anatomy of a Mistrial

Earlier this month, Jacob Joseph Dix became the first defendant to ever stand trial on the charge of Virginia code § 18.2-423.01, burning an object with intent to intimidate. The code section was amended in 2002 to add the requirement of ‘intent to intimidate’ after an earlier iteration prohibiting cross burning was ruled unconstitutional. In its first two decades on the books, the amended statute went unused. Then, in early 2023, the Albemarle County Commonwealth’s Attorney’s office began seeking the first indictments for the crime, charging participants in the August 11, 2017 tiki torch march at the University of Virginia. Over the last year, eleven indictments have been unsealed. Five of those charged have pled guilty and another five cases are still working their way through the courts. Dix was the first defendant in these cases, making him the first in the law’s history, to force the question: will a jury convict on this charge? The trial is over and the question remains unanswered. After deliberating for nearly twelve hours, the jury remained deadlocked and the case ended in a mistrial. 

Dix’s mistrial feels, undoubtedly, like a victory for him personally, for his co-defendants, and for the white supremacist community cheering him on online. For Dix, the mistrial could be the end of the road. The special prosecutor handling the case, Shannon Taylor from Henrico County, is under no obligation to retry the case, though she did tell the press she intends to. For his co-defendants weighing their options, considering whether or not to proceed to trial, there is hope in seeing that a jury was not convinced to convict merely by their visceral disgust at the sight of hundreds of torch-wielding nazis. For the online mob, some of whom still fear their own indictment could be coming, this is a victory for the movement, proof that they are free to terrorize their own communities. With a sample size of one - a jury deadlocked with only three votes to convict and one undecided - their optimism is understandable. After watching the trial firsthand, though, I think it’s misplaced. 

The defense put on no case at all. They rested their case without putting a single witness on the stand. To win over eight jurors without having lifted a finger to build a defense must feel like powerful evidence of innocence, but I think it’s only an indication that the case wasn’t really tried at all. The defense walked in knowing they intended to put on no evidence, but I’m not sure the prosecution realizes they neglected to put on any meaningful evidence specific to this actual case. They couldn’t get a guilty verdict in this case because they did not really try this case. They put the concept of the march itself on trial, but failed to focus on the moment where the march ended and the criminal conduct began. Even before the jury was sent to deliberate, I knew they hadn’t been shown enough to convict, but not because that evidence does not exist. 

The outcome of the trial hinged on Judge Padrick’s pretrial ruling to disqualify the Albemarle County Commonwealth’s Attorney’s office. An identical motion, filled with conspiratorial innuendo and outright untruths, was denied by a different judge, Judge Moore, in the case of a co-defendant, Augustus Invictus. In fact, Judge Moore denied the motion a second time just days after the Dix mistrial when Invictus’ attorney argued it again in a motion for reconsideration. In his fifteen page opinion denying the motion, Judge Moore wrote that it relied on “a number of overstatements, exaggerations, innuendo, inaccuracies, and hyperbole,” and the arguments are a representation of “the way he wants things to have been, in order to support his argument, and not the way they actually are or were.” The opinion letter dismantles, point by point, the nebulous conspiracy of private vengeance that was, apparently, convincing enough for Judge Padrick in the Dix case. Judge Moore refrained from opining that another judge had made a mistake, simply noting that judges can interpret things differently and their decisions in these cases are not binding on one another. It is, perhaps, interesting to note that the underlying theory in the original motion, submitted by Dix’s defense attorney Peter Frazier and adopted by Invictus’ attorney Terrell Roberts, originated in the mind of the rally’s organizer, Jason Kessler. Kessler has proudly shared online that he has been contributing “research” in the case.

However shaky the legal reasoning, though, Judge Padrick appointed a special prosecutor in the Dix case. Albemarle County handed over the case file to Shannon Taylor in Henrico and a wall was up - there could be no communication between the disqualified prosecutor and the special prosecutor. Albemarle County’s Lawton Tufts and Jim Hingeley have been fairly tight lipped when it comes to public statements about what their trial strategy would be, but we have had some glimpses at their theory of the case through pretrial motions and proffers of evidence at guilty pleas and sentencing hearings in the other torch cases and it certainly is not the theory that was presented at trial. 

One thing that has been quite clear is who they believe the victims are in these cases - the counter protesters at the base of the Thomas Jefferson statue. The statute requires ‘intent to intimidate,’ and that’s not a colloquial term. The intimidation must rise to the level that would place a person in reasonable fear of bodily injury or death. The prosecutor may not necessarily need to present a specific victim, but the case does need some sort of cohesive theory of who the defendant intended to intimidate through his actions. In their elaborate theory of a grand leftist conspiracy against white civil rights, defense attorneys for both Dix and Invictus argued that the community members inside the church across the street during the march could be potential victims or witnesses in these cases, creating the potential conflict of interest for Judge Worrell, who was inside the church that night with his wife. Judge Worrell, for his part, recused voluntarily from all of the torch cases, but noted that he did not feel it was legally necessary as he was not a witness, let alone a potential victim, of the events that night. In their opposition to defense motions resting on this theory of the case, the Albemarle County prosecutor’s office was clear: they do not view bystanders, witnesses, people across the street a block away, or anyone other than those people who were trapped at the base of the statue as the victims of the charged offense. The act of lighting, holding, and walking with the torch was not itself criminal. Distasteful free expression ended when the marchers encircled the statue, trapping a small group of counter protesters who feared for their lives.

It’s not clear whether Shannon Taylor’s office understood and disagreed with this interpretation or if they just didn’t read the transcripts of the hearings where these arguments were made, but in the case presented at trial, the events at the base of the statue were a mere afterthought. Instead, they focused on the march itself, primarily calling witnesses to testify about seeing the group moving from Nameless Field through UVA’s grounds. 

DD¹ was starting her fourth year as a student at the University of Virginia in 2017. On August 11, 2017, she was moving into her room on the Lawn. It was on the early side for moving in, so there were not many other students around that evening as she unpacked boxes and put sheets on her bed. Lawn rooms, for those not familiar with the particularities of life at UVA, are the single room residences on either side of the grassy area in front of the Rotunda. Earning a spot in one of the 54 rooms on the Lawn is considered a great honor, one she had earned through her service as a resident advisor, a tour guide with the University Guide Service, and a member of her Class Council. As a young Jewish woman, she was also very active in a women’s group at Hillel at UVA. Her testimony was brief but intense. She began crying immediately upon being asked to recount the moment the march drew close enough for her to make out the chants of “Jews will not replace us.” At the end of her fifteen minutes on the stand, she ran from the courtroom sobbing. 

This same witness, DD, was called to testify in the civil trial against the rally’s organizers in 2021. In the Sines v Kessler trial, the jury was specifically instructed not to consider her feelings, only her factual recollections, an odd and rather cruel sounding direction. In that case, as in this one, DD was called as an eyewitness - she was not a plaintiff in the civil action. In this trial, the prosecutor was, to the detriment of her case, using that eyewitness testimony as a victim impact statement of sorts - using her emotional reaction to the event to demonstrate the intimidating effect of the march. And DD is absolutely a victim of white supremacist terror. But she was not the victim of this crime.

As a young Jewish woman, the fear she felt was real and justified. When she looked out of the peephole on the door to her bedroom and saw a sea of flames, of course she was terrified. She hid her hamsa necklace and shema ring, hands shaking so badly she broke the chain on her necklace trying to strip herself of visible signs of her faith. Like her great grandmother who fled persecution in Poland, she hid the objects that marked her as a Jew and ran from her home into the night. To say she is ‘not the victim’ of this crime is not to say she did not suffer or that the events of that night were acceptable at every step of that march until they encircled the statue. I hope it’s clear that I do not believe the legislature sets the true north of our moral compass. There are more ways to harm a person and a community than have been contemplated by our part-time general assembly. But under this statute, being understandably frightened is not the same as being placed in reasonable fear of death or bodily injury. Her testimony could have been a valuable supplement to the overall presentation of evidence, but it was a perilous foundation upon which to try to build a case.

I can only speculate as to the rational basis for resting their entire case on the tearful testimony of a non-party and my guess is not a charitable one. It is a trap that prosecutors walk into every day like Wile E. Coyote slamming into a tunnel painted on a rock - they want a good victim. They want a simple, clean, uncomplicated narrative of someone who was completely uninvolved and taken by surprise. By centering their ‘good victim’ so completely, by shaping their closing argument around the testimony of a blameless bystander who did not deserve this, the implication is unavoidable: either they believe, or were worried the jury would, that the actual victims of this crime did deserve it. They were unable or unwilling to deal with the messy complexity of what it looks like to be an antifascist and antiracist when fascists and racists invade a college town. 

The defense was right about one thing - in his closing, Peter Frazier said he didn’t have to put on a case because the prosecutor made his case for him. His belief, evident in many of his motions and pretrial arguments, is that the counter protesters could not be intimidated because they opted into the encounter. The counter protesters brought this on themselves. Their mere presence in this public place, expressing their right to protest, was a waiver of their right to safety. They consented to whatever happened once they arrived and thus could not be considered victims of anything. 

The prosecutor’s failure to rebut this can only be seen as an agreement with this premise. They allowed both the defense and the court to make statements like “no one was hurt” during the torch march. They failed to call as witnesses many of those people who were hurt, like Allen Groves, a UVA dean in 2017, who was burned by the flames, or UVA librarian Tyler Magill who suffered a catastrophic stroke after being struck in the neck by a torch. They subpoenaed but did not call my own dear friend Goad, one of the counter protesters whose testimony about being pepper sprayed at the statue put Christopher Cantwell in jail. They did not call Devin Willis or Natalie Romero, plaintiffs in the civil lawsuit who have already proven their ability to testify with incredible courage and clarity about being kicked and punched as they were trapped by the wall of flames. In the civil trial, Devin recalled the moment he realized he had been doused in lighter fluid. He thought the mob may actually intend to burn them alive. He was 19 years old that night and testified that all he could think of was how much he had to live for, that he had to find a way out. Natalie, too, testified to being trapped there, about feeling so small at the center of the screaming mob, and believing she would be burned as she tried desperately to protect her head and face from the rain of fists. She described not really understanding the effects of pepper spray, which she’d been covered in. When she got home that night, she sat down in her shower to cry, just trying to process the experience of the evening, but the hot steam reactivated the chemical irritants, burning her skin and eyes all over again. 

The only actual witness to and victim of this crime that they put on the stand was Emily Gorcenski. She has, unfortunately, had some practice in that very seat and testified well. But a witness can only answer the questions she is asked. A witness cannot proffer evidence. Even the best witness is only as good as the attorney’s line of questioning and the prosecution failed to elicit from her the most important part of the narrative - what actually happened at the statue? When did she shift from an observer documenting an event to someone who was being attacked? The defense leaned heavily into the idea that Emily was clearly not intimidated by the march as she tracked its progress through the university grounds, because she chose to continue doing it. Without a concrete theory of the case that establishes where the criminal offense is alleged to have taken place, that may have been a sticking point for the jury. Leaving aside the finer philosophical point that one can take brave action even while in fear, her testimony was not ambiguous on this front: she was not afraid for her life while filming the march along its route. She testified that she arrived at the plaza where the statue stands before the marchers did and saw the very small group of young counter protesters. Knowing what was coming, having watched some marchers don helmets and weighted gloves or wrap their hands as if preparing for an MMA fight as others lit their torches, she feared for the safety of those young people. And because you can be brave even when filled with fear, she stayed with them. Once they were surrounded by the increasingly violent mob, once she was live streaming her own repeated assaults, of course she was in reasonable fear of bodily harm. 

Perhaps blinded by their commitment to a theory of the case that centered their good victim, the prosecution neglected to actually show the defendant doing really anything at all. There is a moment in Emily’s livestream of the march, to which she testified, where Dix calls her “a leftist piece of shit,” and then Dix’s companion, Ryan Martin, lunges towards her menacingly. This interaction took place along the march route, which Emily was documenting, before the march reached the statue where they encircled the counter protesters. So the only evidence presented of Dix even really existing in that space was a moment physically and temporally removed from the time and place where the charged offense actually happened. It seems they hoped the jury would find it sufficient that he was a member of the crowd and the crowd intimidated their witness, the young woman inside her home on the Lawn. No evidence was presented, no testimony elicited, and no description offered in closing argument of the actual crime. The march itself, ugly as it was, isn’t evidence enough.  

At the most basic level, the prosecutor tried the wrong case. Whether due to lack of time and resources to conduct any investigation of their own after being assigned to the case, misplaced confidence in their ability to emotionally overwhelm the jury, actual misunderstanding of the requirements of a statute with no precedent to look to, or some other combination of confounding factors, the special prosecutor walked into the courtroom with a powerpoint presentation that didn’t fit the facts of the case. Their closing argument, meant to summarize for the jury the facts and evidence they want top of mind during deliberation, focused almost exclusively on the testimony of a witness who, despite being visibly upset by having witnessed the torch march, was only a bystander. They tried to avoid having to navigate the complexity of actual antifascism in the face of fascist violence by hoping the jury would misinterpret the law for them. But being ‘intimidated’ in the language of the statute requires a person to be in reasonable fear of death or bodily injury. Being scared, however justified the fear you experienced, is not the same thing. Their witness had a rational emotional response to seeing something hideous. She did not feel safe. But the marchers did not know she was in her room. They did not prevent her from leaving or attempt to interact with her as she left. It was the counter protesters at the Jefferson statue who were the victims under this statute.

The intimidation is clear - you don't even have to assume that anyone was placed in reasonable fear of bodily harm because their bodies were harmed. We already have sworn testimony in both the Albemarle County prosecution of Christopher Cantwell and the federal lawsuit against the rally's organizers from people who were injured, from people who believed they would die pinned up against the plinth of that statue. And evidence of intent to place them in that state of fear is not hard to find. The marchers saw the small group of counter protesters as they descended from the Rotunda stairs. They saw them there and chose to surround them, knowing they vastly outnumbered that small group. The marchers hooted and cheered, screaming “We’re coming for you!” from the top of the steps. March organizers had assigned marshals who directed the crowd. Video shows some of these marshals at the bottom of the steps, directing the mob to move clockwise around the statue, closing in around the counter protesters. As the ring closed, Richard Spencer’s personal bodyguard, now-former Woburn, MA police officer John Donnelly, can be heard in one video directing marchers to fill in a gap to “block these guys off.” The defendant himself is visible in several videos as he moves down the steps, across the plaza, and winds his way around the statue. As the fighting breaks out, he holds his position in the inner ring of torch bearers who have the counter protesters completely trapped, unable to escape the violence. His intent in that moment is inescapable. But the jury never saw it.

In the second half of this reflection on the mistrial, I'll take a closer look at the evidence that was introduced, present the evidence I think they overlooked, and speculate a bit about additional evidence I believe could have been recovered had the prosecutor investigated further before trial.

¹ Her name is used in other public reporting on the case and is in the publicly filed witness list, but it was so clear that she absolutely wanted nothing to do with this case and would have preferred to leave these memories in the past. Using only her initials here is all I can do to at least avoid cluttering up her internet footprint with more reminders of this experience.