In the short time that this blawg has been in existence, I have had the pleasure of meeting several of its readers. The most common comment I have received in these encounters is that the humor with which I tend approach my subjects is appreciated. But there is nothing at all humorous about the one published opinion from the Court of Appeals released today.
James A. Fields, s/k/a James Alex Fields v. Commonwealth of Virginia is the appeal of the 1st degree murder conviction and numerous related felonies occurring during the “Unite the Right” rally in Charlottesville in 2017. Fields is the individual who deliberately drove his vehicle into a group of “counter-protestors” killing one and severely injuring several others.
I wish to go on record that as an ardent defender of the Constitution and a civil libertarian I support the right of persons who are so inclined to spew vile hatred at others for any reason – race, ethnicity, creed, sexual orientation, or political viewpoint – the First Amendment protects them all, provided that they keep their discourse confined to words and speech equivalents that neither incite nor advocate violence. When such vile hatred is converted to action, however, I have no truck with those who insist that such action can be justified.
Fields was just such a person. The evidence that was produced at his trial showed beyond any reasonable doubt that he went the Charlottesville not merely prepared to commit an act of violence, but with the express intent to do so, and with the sure belief that he was justified in his actions. How this hatred was bred into him it is difficult to say, but it is clear that it was certainly not discouraged by his mother, whose role in the events of August 12, 2017 are made plain in today’s opinion, as we shall see.
Fields has four issues, only the first of which has any potential traction for a reversal. Fields contended that the circuit court erred in not granting a change of venue owing the extensive publicity surrounding the Unite the Right rally and his criminal acts. The Court of Appeals gives a lengthy and authoritative discussion of the law addressing whether pre-trial publicity and the notoriety of the crime has tainted the jury pool requiring a change of venue, and it will suffice to say that here the question resolved to a single issue – could the 16 citizen – 12 jurors and 4 alternates – who were seated fairly hear the case without bias? The circuit court concluded that the selected members of the venire, having given their oath and stating that they could do so, were evidence that a fair trial could be had in Charlottesville, and denied the change of venue motion. Today, the Court of Appeals affirms, noting that it is the totality of the circumstances that must be considered when deciding a change of venue motion, not merely those factors that argue for moving the trial.
It is this point of the opinion that I will address here – because it is little understood even among attorneys that the totality of the circumstances includes those just reasons why a criminal trial ought to be held in the venue where the crimes took place. Fields’ attorneys argued that one of the reasons venue should be moved is that “community trauma in Charlottesville was too great for him to receive a fair trial.” But the Court of Appeals correctly notes that there is no authority for asserting that “community trauma” is a basis for moving venue – and rightly so because it is expressly the reason why venue should lie in the community where the crimes took place.
Venue is not simply a matter of convenience in a criminal trial. Yes, the witnesses, the evidence, the defendant, and the victim(s) are generally closely connected to the location where the crime took place and moving the trial away from the region would be inconvenient. But there is certainly no required of due process that argues in favor of venue being at the locus of the charge – in theory due process is the same from place to place. So why is venue so important.
The reason is the same as in all matters involving the Rule of Law. Venue represents a balancing of the right of the individual and the needs of society. The defendant is entitled to a fair trial before a jury of his unbiased peers; society needs to see that justice is done. Conducting a trial in the place where the crime was committed is an important part of the latter, and the former must give way except under the most extreme circumstances. Put simply, the community is a victim of all crime that occurs within it – criminal acts are an affront to the social contract under which we live and it is valuable for us to know that when the contract is breached, retribution will be exacted.
Fields’ remaining issues all related to the admission of particularly damning evidence, including two communications with his aforementioned mother, thought the first falls into the category of being hoisted on one’s own petard* in the most common of ways these days. The Commonwealth sought to confront Fields with two memes he shared on social media prior to the rally. Both depicted a car driving into a crowd. The original memes were intended to be (allegedly) humorous with captions indicating that the driver was “late for work.” However, what made these posts relevant in that the captions had been altered to specifically identify the people being struck as “protestors.” The Court of Appeals agreed with the Commonwealth and the circuit court that these images were probative of Fields’ intent.
The remaining two issue involve Fields’ communications with his mother. The first was a text message in which Fields informed her that he had been able to get time off from work and would be attending the rally. His mother replied, “be careful” and Fields responded, “We’re not the one[s] who need to be careful.” If the words were all that there was to the exchange, Fields reply would be fairly cryptic and probably would not have been deemed admissible. However, the context of the message is made clear by the fact that Fields appended the first text with a photograph of Adolf Hitler – who his own attorneys characterized as “one of the most hated men in the history of western civilization.”
With respect to the probative value versus prejudicial effect balance that is at the core of most evidentiary issues, Fields contended that the words, but not the image, could be admitted. However, the words without the context were, as already indicated, not particularly probative of anything – context of the speech is key. The fact that Fields appended his text with an image of “one of the most hated men in the history of western civilization” is the context that makes the words relevant – and the image is unquestionably likely to prejudice the jurors.
So, we need to weigh the relevance of the words in context against the prejudice that context creates, correct? Actually, no. There is no true probative/prejudice balance to be made here because the “prejudice” of displaying the words in their context is precisely what makes the entire communication highly probative of Fields’ state of mind. Associating Fields with Hitler would only be unduly prejudicial, and thus potentially outweighing the probative value, if the association were not what was probative and thus what made the evidence admissible.
Finally, Fields – who has already demonstrated an utter lack of understanding of the concept that Free Speech ought not be a license to be stupid, let alone criminal – and despite what were undoubtedly clear warnings that phone conversations between prisoners and any apart from their attorneys were taped and monitored, decided to talk to his mother about the events of August 12, 2017. As relevant to his intent, fields described his victims as “a violent group of terrorists” who were communists and waiving an ISIS flag. He called the mother of the woman who was killed an anti-white communist and referred to her as “the enemy.” As with the social media posts and the texts, the prejudice of these statements is not “undue” because it is directly probative Fields’ state of mind.
In affirming the judgment, the Court of Appeals refrained from making an observation that was undoubtedly foremost in the judges’ minds, and in the minds of the jurors: What the H*** kind of mother does Fields have? I have no compunction from making that observation and offering my on opinion. Fields has the kind of mother who imbues her son with race hatred and vile rhetoric. He has the kind of mother who receives a text from her son with an image of Adolf Hitler and a follow-up implying that he intends, or is at least considering, acts of violence and responds only with a statement of concern for his wellbeing. He has the kind of mother who calmly listens to her son describe peaceful protestors – she had to have seen the videos that disproved Fields’ claim that he was attacked by a “mob” – as “terrorists” and a grieving mother as “the enemy.”
In short, Fields had the kind of mother that many if not most men like Fields have – a woman who shares her prejudices, bigotry and hatred with her children and indoctrinates them to become haters. Legally, Fields’ mother is not responsible for his crimes. Morally, she, and the others who created this monster, are complicit in every single one.
*The origin of this phrase is “to have the enginer hoist with his own petard” and comes to us from the pen of the Bard, specifically Act 3, scene IV of Hamlet. It literally means to cause an “enginer,” a bombmaker, to be blown into the air by his own bomb. In the context of the play, Hamlet is describing his plan to turn the tables on his fratricidal uncle, King Claudius, by using the latter’s plot to have Hamlet killed by the English king to instead give Hamlet the ability to return to Denmark in secret (after arranging for his erstwhile school chums Rosencrantz and Guildenstern to be dispatch by the English instead).