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Judge in rally lawsuit allows expert testimony on white supremacist speech strategies

A federal judge will allow plaintiffs in a Unite the Right lawsuit to present expert testimony on white supremacist speech strategies.

The recent memorandum opinion is the latest in the multi-year Sines v. Kessler lawsuit, which targets key organizers and participants in the deadly Aug. 12, 2017, rally.

In his opinion, U.S. District Judge Norman K. Moon denied a motion to restrict expert testimony filed by defendants Jason Kessler, Nathan Damigo, Matthew Parrott, Identity Evropa and the Traditionalist Workers Party.

Specifically, the defendants challenged the experts’ description of a “white supremacist movement,” with common traits including glorifying and normalizing violence.

“They argue that, by using that phrase, plaintiffs are trying to build into expert witness testimony an improper shortcut to plaintiffs’ burden to prove an actual conspiracy amongst defendants,” Moon wrote. “Movant-defendants also argue that allowing this testimony would be unfairly prejudicial.”

Additionally, the defendants took issue with expert testimony that groups in the white supremacist movement have developed and often employ “double-speak” or “just joking” strategies, which afford its adherents plausible deniability when conveying certain racist or violent messages, Moon wrote.

“As plaintiffs’ experts describe it, outsiders would only hear an innocuous comment or think the speaker was making a tasteless joke, while those ‘in the know’ would understand the hidden meaning,” Moon wrote.

However, despite these claims, Moon found that the plaintiffs’ proposed expert testimony was proper and has long been allowed to explain to a jury the meaning of coded language. The experts’ testimony is also grounded in specific examples, he wrote, and fits well within the types of specialized knowledge that courts have regularly found helpful to a jury.

“While movant-defendants’ position is not entirely without force in the abstract, on this record and considering the parties’ arguments, there is little indication that the experts’ testimony will stray into improper characterizations or subjects,” Moon wrote.

The 26-page opinion goes into great detail, explaining Moon’s rationalization for denying each of the defendants’ argument.

The testimony that plaintiffs’ counsel seeks to introduce is not the same thing as trying to introduce expert testimony that a fact witness lied in their testimony, Moon wrote, and plaintiffs’ counsel was unequivocal that the experts “are absolutely not going to say that any witness is lying.”

Additionally, Moon was not swayed by a defense argument that the complaint does not mention any “preexisting plan to cover up the plan,” and thus evidence on doublespeak would be pointless.

“In the complaint, plaintiffs alleged just that — that defendants conspired to perpetuate violence at Unite the Right and used various means to communicate those plans to co-conspirators, and that substantial efforts were made to shield those plans from public scrutiny and maintain plausible deniability to outsiders,” he wrote.

Moon further addressed the argument and pointed to portions of the complaint that included details about numerous defendants’ use of a non-public, “invite only” group on the social media platform Discord “as a tool to promote, coordinate, and organize the Unite the Right ‘rally,’ and as a means to communicate and coordinate violent and illegal activities ‘in secret’ during the actual events of that weekend.”

“Defendants even exercised caution among the wide, non-public Discord audience and sought to ensure that Discord users ‘keep their most extreme ideas and feelings off the platform’ and save them for yet more surreptitious means of communication, such as ‘burner phones,’” Moon wrote, citing evidence obtained during discovery.

The defendants will have the opportunity on cross examination to test the experts’ methodology on these issues and its application to the facts of this case, Moon wrote, and will also be able to present their own narratives and explanations regarding any material statements or communications.

That the court will allow the plaintiffs to offer expert testimony does not mean it will be presented to the jury unassailable and unchallenged, Moon wrote.

“As ‘safeguards’ upon introduction of this as with any other expert testimony, defendants certainly shall be afforded the ‘traditional and appropriate means’ of challenging expert testimony, including by vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof,” he wrote.

The case is currently set to begin a multi-week trial in October.


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