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Court questioning financial responsibility of transporting Cantwell for rally trial

Parties in a Unite the Right lawsuit are squabbling about who, if anyone, should pay to transport a man dubbed the "Crying Nazi" to the Charlottesville for trial.

The suit, Sines v. Kessler, was filed in federal court in October 2017 by a group of Charlottesville-area residents against organizers and key participants of the deadly Aug. 12, 2017, white supremacist rally downtown and preceding-day torch rally at the University of Virginia. The case received its name from plaintiff Elizabeth Sines, a University of Virginia law student at the time of the rallies, and Jason Kessler, the primary organizer of Unite the Right.

Among the defendants is Chris Cantwell, dubbed the “Crying Nazi” after his tearful appearance in the media following the deadly rally. Cantwell is currently serving a nearly three-and-a-half year sentence in federal prison in Illinois for threatening to rape the wife of a man who was part of a separate racist group. The conviction is unrelated to the Charlottesville rallies.

As a party to the lawsuit, Cantwell has requested transportation for the trial, which has caused considerable logistical and legal difficulties due to the length and civil nature of the trial.

A recent order from Senior U.S. District Judge Norman K. Moon clarified that the cost of transportation had been calculated by the U.S. Marshal’s Service to cost $15,927 and that the Marshal’s Service cannot transport Cantwell until it receives payment.

“The Court has further been advised that the Western District of Virginia has no funds allocated for transportation of an incarcerated witness in a civil case, such as this,” Moon wrote.

Moon directed each party to state their ability and willingness to pay such costs. If either side is unable or unwilling to pay such costs, Moon directed them to provide authority that Cantwell must be transported without prior payment of travel costs and/or authority supporting imposition of such costs upon another party or source.

Cantwell balked at the assessment in a response filed soon afterward. He argued that he doubted it would cost the Marshal’s Service $15,000 to transport him on an already chartered plane.

Though he also wrote that he did not believe the court had the authority to assign the cost to any party, Cantwell argued that the court “may only award costs against the party against whom judgment is taken as regards to Cantwell.”

In response to the court’s order, counsel for the plaintiffs cited Fourth Circuit precedent and took the position that the cost of transporting Cantwell should in the first instance be borne by Cantwell himself, who brought the writ ad testificandum — a court summons to appear and give oral testimony for use at a hearing or trial.

However, in the event that Cantwell does not have the funds to cover the nearly $16,000 in expenses, counsel for the plaintiffs argued that the cost should fall on the U.S. Marshal’s service.

“Courts have routinely ordered the United States Marshals to execute a writ ad testificandum — and pay for its execution — when a prisoner is indigent,” the plaintiffs’ response reads.

However, with the “not insignificant costs and security concerns associated with bringing Mr. Cantwell to Charlottesville for the entirety of the relatively lengthy trial” counsel for the plaintiffs’ recommended only bringing Cantwell to the city for his own testimony, which they estimated should last one to two days at most.

When not testifying, plaintiffs’ counsel suggested that Cantwell could participate via videoconference, as previously discussed and arranged with the court.

Defendants Jason Kessler, Nathan Damigo and Identity Evropa also took the stance that it is within the court’s discretion whether or not to issue a writ ad testificandum for Cantwell. Additionally, the trio of defendants agreed with the plaintiffs that it is also within the court’s power to order Cantwell transferred from his current institution to Charlottesville for trial even if there are budgetary or other issues inherent in such an order.

However, the defendants disagreed with the plaintiffs’ suggestion that Cantwell need only be transported for the days in which he testifies.

"If Cantwell is brough [sic] to the trial, then each party must be given an equal opportunity for a full examination of Mr. Cantwell before the jury,” the response reads. “In defendants’ view, the Court would abuse its discretion if it permitted plaintiffs to call Cantwell in their case in chief while limiting the other parties to cross while Cantwell is in the courtroom.”

Given the “verbosity of Cantwell’s written submissions to the Court,” the defendants’ motion argued that three days would be preferred “so as to avoid prejudicing any defendant herein.”

The court has not yet issued a response or order regarding the cost of transportation following its recent order. The Sines v. Kessler trial is scheduled to begin on Oct. 25 in Charlottesville’s Federal Court and could last as long as four weeks.


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