As Chris Cantwell attempted one last-ditch effort at swaying the jury that he is innocent, plaintiffs’ and defense lawyers — including those representing themselves — squabbled over jury instructions.
Cantwell, a pro se defendant currently in prison for unrelated crimes, has been a logistical and procedural challenge throughout the nearly month-long Sines v. Kessler trial. The neo-Nazi podcaster has been repeatedly accused of badgering witnesses and trying draw attention to himself and on Tuesday forced the jurors to listen to long portions of his podcast in which he bashed Jewish and Black people.
Wednesday saw Cantwell continue arguing a defense seemingly unrelated to the racist conspiracy claims central to the lawsuit, as he called plaintiffs Natalie Romero and Devin Willis back to the stand.
Both Romero and Willis were University of Virginia students at the time of the alt-right torch march and were present at the base of the university’s Thomas Jefferson statue when violence broke out.
Throughout the trial Cantwell has seemed less interested in presenting evidence that he did not conspire co-defendants than arguing that counter-protesters wearing bandanas are part of some “antifa” conspiracy. He has not presented evidence or testimony to support this.
At one point Wednesday, Cantwell forced Romero to re-watch footage of her and other counter-protesters being attacked on Aug. 11, 2017. When asked to point herself out, Romero noticed Cantwell in the video for the first time.
“Then someone within the frame is starting to hurt us and then another one and then that’s when it got worse,” she said, describing the footage to Cantwell. “Then it looks like you, is that you?”
After Cantwell confirmed that it was he in the video and admitted to hitting someone, Romero asked him to rewind the video again because it looked like his actions might have jostled her and Willis, who was standing next to her. Cantwell then demanded that Romero tell him whether she thought he hit her or not. The visibly upset defendant tried to explain that she didn’t know and asked Cantwell to replay the video. Eventually Romero said that she did not believe it was Cantwell who punched her that night.
“I said that we were hit by the fight, and I think I was punched directly,” she said. “I’m only saying that because you just showed this clip and that looks like you and that’s us running away.”
As he had done when cross-examining Romero and Willis following their testimony earlier in the trial, Cantwell again asked the two if they knew Emily Gorcenski. Both responded no, not at the time of the rallies.
Gorcenski has been the focus of much of Cantwell’s questioning despite not being a party to the lawsuit. In 2018, Cantwell pleaded guilty to assaulting Gorcenski and another counter-protester during the torch march. Per that plea agreement, Cantwell is barred via a no-contact order from talking about Gorcenski online or on his podcast. That order apparently does not apply to courtrooms, and he has mentioned her frequently.
The bulk of the day was devoted to arguing over jury instruction.
Ultimately, the jury will have to decide whether the more than a dozen defendants conspired to come to Charlottesville and commit acts of racist violence at the Unite the Right rally and preceding UVa torch march.
The jurors in this case have a monumental task, having to both determine guilt for each of the defendants separately and then also decide the amount of financial restitution each may be required to pay separately.
As Judge Norman K. Moon has repeatedly told the jurors and defendants, the threshold of proof for a civil conspiracy is far lower than in a criminal trial. While a criminal jury must determine guilt beyond a reasonable doubt, no such provision exists in civil law, Moon said. Instead jurors should consider the “preponderance of the evidence,” Moon has instructed them.
“In other words, a preponderance of the evidence means such evidence that persuades you that in fact is more likely true than not,” he said. “In your mind, you might think of this as 51% or more likely than not.”
In order to prove a conspiracy, Moon said the jurors must determine if the plaintiffs proved the defendants were motivated by racial animus against Black and Jewish people; whether the defendants’ actions were overt; and whether the defendants’ actions caused harm to the plaintiffs either physically, psychologically or financially.
Moon’s instructions took well over an hour and were occasionally halted while the parties argued over how to best phrase the instructions. Much of the defense concerns lied in sanctions applied to various defendants in the form of something called adverse inferences instructions, which allows lawyers for the plaintiffs to tell jury members that they can interpret defendants’ actions as being committed in bad faith.
The long-winding suit has seen several defendants sanctioned for withholding documents via adverse inference jury instructions. Moon gave those instructions Wednesday, which mostly applied to defendants who were not present or who failed to turn over some responsive documents, such as Matthew Heimbach of the Traditionalist Worker Party.
If the trial remains on schedule, then starting at 9 a.m. tomorrow the plaintiffs will have 2.5 hours to deliver closing arguments and the defendants will split 3.5 hours among themselves. The jury will deliberate the case Friday and try to reach a verdict by the day’s end.