Mistrial Mulligan

In the three weeks that have passed since the first torch march trial ended in a hung jury, the special prosecutor who tried the case has been busy. Two weeks after the mistrial, Henrico County Commonwealth’s Attorney Shannon Taylor filed paperwork for a 2025 run for Virginia Attorney General. In her first campaign ad, video of that August 11, 2017 torch march plays as Taylor says it will take an Attorney General with a spine to stop extremists from destroying our way of life. The decision to release a campaign video featuring a high profile case in which she painfully recently failed to secure a conviction does seem to indicate she plans to pursue retrying the case with some vigor. The case still has to survive a hearing on a defense motion to dismiss the case, scheduled for August. The Richmond Times Dispatch reported Taylor saying the case is likely to go to appeals if that motion is granted. If Taylor does bring this case back to trial, how might she approach it differently? 

The two primary exhibits the Commonwealth offered at trial already contain plenty of the evidence they would need to present an entirely different case. Through the testimony of their only witness who actually witnessed the crime, Emily Gorcenski, they played two videos. One was recorded by Emily herself, tracking the march from its starting point and ending when repeated assaults made it impossible for her to continue filming. The other video also followed the march from beginning to end, but this one was recorded by fellow marcher Augustus Invictus. Coincidentally, Invictus was marching just behind Jacob Dix and his companions that evening, so we have half an hour of footage of the back of his head. 

But instead of offering their video evidence in digestible pieces, freezing the image on relevant visuals and eliciting testimony to help the jury contextualize what they were seeing, they played dark, shaky video almost without interruption for long stretches of time. I have no insight into the particularities of their audiovisual difficulties, but the prosecution was unable to rewind or pause the video at exactly the right moments when they wanted to show the jury where the defendant was on screen, leading to repeated moments of the video pausing a second too late. Over and over, the prosecutor elicited witness testimony that the defendant had just been visible a moment before, leaving the jury without a clear still frame of what they were supposed to have been looking at. They could have chosen to enter exhibits of specific clips or still frames from the video so that the jury would be able to review the relevant content during deliberation, but they did not choose to do this. I think at the most basic level, if the evidence is meant to show the jury something, they should be able to see it. 

But even as it became clear that the prosecution had no intention of presenting the experience of the actual victims of this crime, I thought surely they would at least show the defendant. They could have offered this clip of Dix at the top of the Rotunda steps, as the plaza below and the small group of counter protesters came into view. His companion, Daniel Borden, notices the group and says, excitedly, “Antifa! Here we go!” Moments later, as they are descending the stairs, Borden appears to shout, “You’re outnumbered antifa! Watch out leftist scum!” At the bottom of the stairs, Dix appears to turn to Borden and say, “Oh, we’re going in.” It’s dark and loud and the video isn’t crystal clear. It would be up to a jury to decide if that’s what they hear in this clip. 

And then there is the question of mindset and motivation. The defense offered the explanation that Dix came to Charlottesville for the rally solely out of concern for the Confederate statues, not any kind of hatred. To refute this, the state’s single attempt at demonstrating to the jury that this particular defendant held white supremacist beliefs was introduced with the only actual clear image of the defendant’s face they showed the jurors - this photo of Dix wearing a shirt with 88 on the front.

The state called Dr. James Loeffler, a professor of Jewish history at Johns Hopkins University, to give expert testimony about the meaning of the number 88 among white supremacists. Right up until the moment he took the stand, there was uncertainty about whether Judge Padrick would even allow the prosecution’s expert witness to testify. Had the ruling gone against them, I’m not sure what Plan B would have been. They would’ve been left with nothing. Judge Padrick was not shy about his disbelief that this is a commonly understood or widely used symbol. The defense put on a little slide show of the number being used innocently, mostly in the form of sports jerseys and, oddly, a campaign logo for George H.W. Bush’s 1988 campaign for president. 

Professor Loeffler was, of course, correct about the common usage of the number - H is the eighth letter of the alphabet and the HH signified by the double 8s is used to communicate ‘Heil Hitler.’ Dix’s shirt bearing the number 88 did not have a logo for a sports team or a player’s name or any indication of support for Vice President Dan Quayle. It was a plain black shirt with only the number 88 on the front, worn to an event where participants chanted “Blood and Soil.” It is not an unreasonable assumption, in this context, to suggest he chose the shirt for the same reason he held his right arm up at a 45 degree angle, palm down, at a nazi rally in Kentucky a few months earlier or for the same reason he referred to the AirBnB he rented outside of Charlottesville as “the Eagle’s Nest.” But the jury didn’t know about either of those things. They saw a plain black tank top with a number on it. It wasn’t enough. While I think the decision to lean so heavily on the importance of the shirt alone to illustrate the defendant’s white nationalist connections was a grave error, they were heading in the right direction. If the case goes back to trial, they would be lucky to get Dr. Loeffler back on the stand. Perhaps he could offer testimony about a few other pieces of evidence that shed some light on the defendant’s motivation for attending the rally.

And here is where we depart from the facts in evidence. I will acknowledge that there are certain barriers to admitting evidence. Not every piece of evidence is admissible at all and plenty of evidence would require a bit of creativity in laying the proper foundation to introduce it or would require more investigative work to authenticate properly. I’m a writer, not a lawyer, so I won’t put my mind to the task of sorting out what would be required to show a jury the evidence already available in plain view and the evidence I believe exists beyond my reach. I merely offer it for your consideration.

The trial did confirm a fact I’d long suspected: Jacob Dix traveled from Ohio to the Unite the Right rally in Virginia with three companions - his roommate Ryan Martin, an unnamed woman, and Daniel Borden. Ryan Martin, Dix’s roommate at the time, passed away last summer. Based on extensive review of footage from August 11th and 12th, the unnamed woman appears to have been Martin’s girlfriend. While I would characterize her demeanor in much of the footage as bored and at times visibly uncomfortable, she did attend both the torch march and the rally the next morning and is seen in more than one video throwing a Hitler salute. Daniel Borden, of course, you may remember as the youngest assailant in the brutal beating of Deandre Harris in the parking garage during the Unite the Right rally. Borden, only 18 at the time, spent several years in prison for the assault. He has returned home to Ohio since his release where he is an active member of the Asatru Folk Assembly, an explicitly white nationalist neo-pagan group. But Daniel Borden didn’t just catch a ride from a stranger in August 2017. 

There is no definitive proof that either Dix or Borden were ever official members of the Traditionalist Worker Party, a now-defunct neo-Nazi group run by Matthew Heimbach. No membership lists were ever leaked and I have not located any pictures of either of them in official member uniforms purchased from the group. But breadcrumbs left in leaked discord messages and footage from several white nationalist rallies that year show they both had some connection to the group, which had a heavy presence in Ohio during that time period.

And while Unite the Right organizer Jason Kessler was begging participants to hide more overt symbols of nazi ideology at his rally in August 2017, desperate to hide what actually united the right behind rhetoric about preserving monuments, the Traditionalist Worker Party was far less subtle. In April of 2017, TWP, alongside the National Socialist Movement, organized a ‘white civil rights’ rally in Pikeville, Kentucky. In a video advertising the event earlier that year, TWP’s leader Matthew Heimbach was unambiguous in his stated intent of creating a white ethnostate. 

Both Jacob Dix and Daniel Borden attended the rally in Pikeville in April, four months before Unite the Right. They arrived with the official contingent of Traditionalist Worker Party members and attended a private, ticketed event that took place separately from the rally. In Heimbach’s second video advertising the rally, he pitched this private portion of the weekend as a conference of sorts. Attendees were required to pre-register to attend the private event where they would camp, hear speeches from white nationalist leaders, learn to march in military formations, and engage in self defense training. 

And we know Jacob Dix attended the private event because before the media was asked to leave for the evening’s main events, a photographer for The Guardian took a picture of Dix standing next to Heimbach as the group worked on their marching formations (Borden, still an awkward teenager, was stuck in the back). In videos posted by a National Socialist Movement member of the live music provided at the campground, Dix can be seen in the background at various points, coming and going from the portable toilets set up in a field somewhere in the Kentucky town of Whitesburg. 

He also arrived at the rally with the Nationalist Front, a coalition of Traditionalist Worker Party and National Socialist Movement members, who were an hour late to their own event that day. 

After Unite the Right in August of 2017, Dix continued to attend Traditionalist Worker Party events. Daniel Borden was unable to tag along for their third white nationalist rally together that year because by the time Dix drove to Shelbyville, Tennessee for a ‘White Lives Matter’ rally in October, Borden had been arrested for the brutal beating of a young Black counter protester at the rally in August. 

In late 2017, Traditionalist Worker Party’s Ohio coordinator rented out a workspace at a flea market outside of Dayton that the group could use for their meetups. Several members had experience in the trades and they taught other members the basics of welding. This sounds like a wholesome and productive activity for a group of young men until you see their practice welds. Based on photos posted to the discord. it appears that each welding newbie got to take home his very own lumpy metal swastika. A TWP member named Dave Fassler posted several photos from these monthly meetups showing Jacob Dix and Daniel Borden’s older brother Joseph Borden. The posts stopped abruptly in March 2018 after the group was thrown into chaos by domestic violence and sexual scandal. Matthew Heimbach had been carrying on an affair with Jessica Parrott, the wife of the group’s co-founder Matthew Parrott. They were caught in the act by Matthew Parrott and his step-daughter, Heimbach’s wife Brooke. Both couples have since divorced and the Traditionalist Worker Party collapsed after Heimbach’s arrest for attacking his wife and father-in-law. 

In the years since the Traditionalist Worker Party ceased to exist, Jacob Dix and the Borden brothers have been involved in their local Asatru Folk Assembly. Far from the harmless, if sometimes questionable, practice of paganism by people of European heritage trying to connect with their ancestral ways of life, the Asatru Folk Assembly is an explicitly white nationalist organization that receives heavy criticism from their fellow pagans for the racial hatred built into its founding doctrines. After his release from prison in 2021, Daniel Borden started attending AFA events in Ohio. In 2023, he was named “apprentice folkbuilder” in his local chapter, a leadership position that tasked him with communicating with members and putting on events. Photos of meetups and celebrations posted across the group’s social media platforms show Daniel and Joseph Borden and Jacob Dix at events over the last three years, often alongside former TWP member Kam Musser. Dix can be found in photos from Asatru meetups as recently as last week.

At the end of the day, there is only so much information that can be gleaned from open source investigation. I’ve scoured the internet for grainy cell phone footage posted from behind barricades and on marches. I’ve dug up obscure foreign news outlets’ archived B-roll, watched a painful hour of Nazi folk songs performed on a banjo at a racist picnic, read thousands of leaked discord messages, and played hundreds of rounds of white nationalist Where’s Waldo. But some information never leaked. In a case this old, brought to trial years after the date of offense, there are hard limitations on what sorts of evidence a prosecutor can recover. It isn’t really true that the internet is forever and a subpoena served today on a cell phone provider or online social media platform wouldn’t do much good. A search warrant for a cell phone or computer that went to a landfill years ago is useless. But in this case, there are some intriguing possibilities for evidence frozen in amber, preserved years ago when it was fresh. 

The discord user who appears to be Jacob Dix ‘self-doxxed’ in the discord. When Dix was among the first of the torch march participants to be identified by a Twitter account called “Yes You’re Racist” mere hours after the event, the Discord user “Jacob Freeman” posted a screenshot of the tweet. The Discord user followed up, adding, “I got a massive doxs [sic] guys.”

This user, Jacob Freeman, posted just 33 times in the leaked Unite the Right planning chats that have been published by Unicorn Riot, but those are almost certainly not his only posts. Posts in those leaked chats indicate that Discord users “Jacob Freeman” and “SCNazi” coordinated housing for more than 80 Unite the Right attendees at four rental houses, one of which they nicknamed “the Eagle’s Nest,” after Hitler’s vacation home in the mountains. Once a rally goer sent payment to SCNazi, a middle school teacher from South Carolina named Tim Manning, they were invited to join a separate Discord called “Mountain Redoubt.” The chats on this server were not leaked but may still exist somewhere reachable by subpoena. 

And here’s where someone might get creative. If that server falls outside the data retention policies at Discord, it might actually still exist. One of the few publicly visible messages from “Jacob Freeman” was an exchange with Benjamin Daley. Daley, a leader in the violent white supremacist organization the Rise Above Movement (RAM), was asking about lodging for himself and three companions, all of whom had prior experience “at the Berkeley riots.” Benjamin Daley, along with those three companions (Michael Miselis, Cole White, and Thomas Gillen) were all convicted on federal charges for conspiracy to riot. Because all four pled guilty, there are no trial transcripts or lists of exhibits to consult. But in a motion filed early on in the case, the federal prosecutor asked for an extension of time due to voluminous discovery materials. Specifically, the prosecutor wrote that when federal agents executed search warrants at all four defendants’ homes, they recovered 21 electronic devices that were still being processed. If any of the RAM members who attended Unite the Right were invited to the private Discord server run by Jacob Freeman and SCNazi, those messages almost certainly exist in a discovery file in some federal prosecutor’s office. If they were using that discord to coordinate transportation from the AirBnBs in Wintergreen, a small ski resort 45 minutes from Charlottesville, perhaps additional evidence of Dix's plan to attend the march can be found.

Another potential source of preserved evidence is the federal search warrant for Daniel Borden’s social media. While he was ultimately charged by the Commonwealth of Virginia and pled guilty to malicious wounding in Charlottesville Circuit Court, the case was initially investigated by the FBI as a federal hate crime. Documentation exists showing a warrant was executed for his Facebook account. 2017 was only seven years ago, but that was a different era online - we were still sending Facebook messages. It’s possible that Facebook account contains messages exchanged with or about Borden’s trips to white nationalist rallies in Pikeville and Charlottesville with Jacob Dix. The affidavit in support of the warrant for Borden's Facebook account also makes reference to a physical search that was conducted of his home, raising the possibility that other items, such a cell phone, may have been seized back in 2017.

Even without these evidentiary hail marys for preserved digital communications that may still exist on a hard drive or in a back room at the DOJ, there is a mountain of evidence about what brought Jacob Dix to Charlottesville that night in August. When his defense attorney says there’s just no way to prove what was on a man’s mind, I suppose he’s right. You can’t prove it. But you can take a pretty confident guess.

As I said on a recent episode of a podcast discussing this case, the way the trial was handled is a reminder that our courts are ill-equipped to interrupt white supremacist violence. That's not what they were built for. And in the end, whether or not Jacob Dix from Ohio serves four months in jail doesn't get us any closer to safety or justice. But if they're going to bring these cases, they should at least have the decency to do a little work to bring them properly. All we can do now is wait and see if Shannon Taylor's campaign for Attorney General is the motivation she needs to take this case back to court with a little more energy.