Jury selection will continue into a third day after tedium and arguments over potentially biased jurors punctuated the second day of trial of the Sines v. Kessler case.
Filed on behalf of nine Charlottesville area residents in October 2017, the lawsuit alleges that 14 people and 10 groups conspired to come to Charlottesville in August 2017 to commit acts of racist violence.
The lawsuit is a direct response to the Aug. 11 torch march on University of Virginia grounds and the subsequent Unite the Right rally, which devolved into violence and culminated in the murder of Heather Heyer by defendant James Alex Fields Jr.
The lawsuit has taken a tumultuous path to trial, often delayed by uncooperative defendants and changes in defense counsel.
When trial began Monday, U.S. District Judge Norman K. Moon said he hoped to seat a 12-person jury by the end of jury selection, a process initially expected to take two days. However, by the end of day two, only ten jurors had been selected.
Because it is a civil trial, the size of the jury panel is ultimately up to the court’s discretion, but cannot be less than six, according to a U.S. Supreme Court ruling. Going into the second round of strikes in the evening, an exasperated Moon said he would be comfortable proceeding with 11 jurors. However, that number was not reached.
The math is additionally complicated by a juror who is subject to something called a Batson motion: an objection to the validity of a peremptory challenge, on grounds that the other party used it to exclude a potential juror based on race, ethnicity or sex.
Based on arguments Tuesday, the plaintiffs’ counsel filed a Batson motion following one of the defense peremptory strikes on Monday. Moon declined to rule on the motion Tuesday, thus keeping the jury panel at a total of 10 instead of the now-sought 11.
In terms of the selection process Tuesday, potential jurors were again split into two panels and called individually to answer questions from Moon in the morning and afternoon. Moon’s questions, which were often based on answers the potential jurors gave in a pre-trial questionnaire, mostly revolved around potential biases against the parties, minority groups and political groups such as Black Lives Matter.
Of the initial panel of seven, only two jurors were not struck for cause or dismissed due to job-related issues. Ultimately, only one of these jurors was passed on to the jury, with the other being dismissed due to a defense peremptory strike — a legal move that allows a party to remove a juror for any reason other than race, ethnicity or sex.
Defendants Richard Spencer and Christopher Cantwell are representing themselves, or what is legally referred to as “pro se.” Spencer and Cantwell, known as the Crying Nazi, attracted the ire of defense counsel James Kolenich when the two appeared to endorse a potential juror who had described the defendants as “evil.” Kolenich represents Jason Kessler, Nathan Damigo and Identity Evropa.
“At some point we’re going to need to address how it’s difficult for counsel to work next to pro se litigants,” Kolenich said, referring to Spencer and Cantwell. “I have no idea what these two think they’re doing.”
By the afternoon, a jury of nine had been formed, including eight jurors from the day prior. However, one of those jurors is subject to a challenge motion, meaning they were not counted in the court’s tally.
The larger afternoon panel was also largely dismissed for cause or for job-related reasons. Among those dismissed for cause was a civics teacher who wrote in his questionnaire that he could not look past his negative opinions on fascism.
Ultimately, only two jurors were passed by the parties, leading to a total of 10. Given this lower total, Moon opted to extend the selection process into Wednesday and said he was hopeful the process would be over by the afternoon.
“I think we should be able to wrap this up by the afternoon and maybe continue on to opening statements,” Moon said.
It remains unclear whether either the plaintiffs or defense will receive additional peremptory strikes or whether the defense will receive back a peremptory strike if Moon grants the Batson motion.
The hearing was additionally complicated by the absence of William ReBrook, counsel for Jeff Schoep, the National Socialist Movement and the Nationalist Front. According to earlier comments from Kolenich, ReBrook went to the emergency room Monday evening and has not been heard from since.
The Sines v. Kessler trial is scheduled to resume at 9:30 a.m. on Wednesday.