Continuing with the discussion — James Alex Fields, Jr., who was in Charlottesville to attend the Unite the Right rally, is charged with driving his car on August 12, 2017, into a crowd of counter-protesters four blocks away from Emancipation Park. One young woman was killed and 19 were injured, 5 critically. Fields is charged with murder, three counts of malicious wounding, and felony hit and run. Can the organizers or speakers at the rally also be charged with murder and malicious wounding?
Yesterday, I looked at the question of what First Amendment law would tell us; today, let’s look at the general law of accomplice liability to see how it might apply here.
In general, in a criminal case, you cannot be held responsible for the wrongdoing of another unless you shared that person’s criminal intent and did something to make it easier for that person to commit the crime.
Solicitation:
Virginia Code §18.2-29 codifies the common law:
Any person who commands, entreats, or otherwise attempts to persuade another person to commit a felony other than murder, shall be guilty of a Class 6 felony. … Any person who commands, entreats, or otherwise attempts to persuade another person to commit a murder is guilty of a felony punishable by confinement in a state correctional facility for a term not less than five years or more than forty years.
Would this statute give a hook to charge the organizers or speakers with murder? Only, in my opinion, if there were proof of a fairly specific “command” or “entreaty” or other attempt at persuasion. If there were evidence that one of speakers told James Alex Fields, “Son, there are antifa out there on the street that need to say hello to the front grill of that pretty car of yours,” following which Fields jumped in the car and drove at high speed down 4th Street and into the crowd that included Heather Heyer, that speaker could probably be charged. But that is not the most likely scenario. It seems much more likely that the evidence would suggest that Fields heard speakers talking about how the antifa are out to take the jobs of white men like him, etc., and they got him angry.
I am not aware of any Virginia case that extends the notion of a “command” or “entreaty” to such general levels.
So — on a criminal liability standard, “solicitation” won’t get there.
Conspiracy:
A conspiracy is an agreement by two or more people to commit a crime. There is a broad concept of conspiracy liability that bears the name of the case that solidified the rule of law — so-called Pinkerton liability, because of the 1946 United States Supreme Court case, Pinkerton v. United States, 328 U.S. 640, 66 S. Ct. 1180, 90 L. Ed. 1489 (1946).
In that case, Walter and Daniel Pinkerton were both charged with a conspiracy to commit tax fraud. They also committed mail fraud, by sending fraudulent letters through the mail. The question that the case posed was whether Daniel could be convicted for fraudulent letters that Walter sent, when the letters were sent in the furtherance of the conspiracy. The Supreme Court said “Yes,” provided that Walter’s letters were sent “in execution of the enterprise.” The doctrine has been modified over the years to make clear that for Daniel to be guilty of crimes that Walter committed, it must also have been foreseeable to Daniel that Walter would do what he did. In other words, if you are committing tax fraud, it is entirely foreseeable that one or the other of you might send a letter to the IRS with false information in it, and you can’t escape punishment just because you weren’t actually the one to put the letter in the mail. On the other hand, if you are committing tax fraud with your brother, and when you are arrested you have drugs in your pocket, your brother can’t be punished for those drugs, because it was not foreseeable that your agreement to file a false tax return would involve selling cocaine.
To bring this principle to bear on this case, the first question would be to describe the scope of the underlying conspiracy. A conspiracy is an agreement to commit a particular crime or set of crimes. Assume that you are a prosecutor looking to build a conspiracy case against the organizers of the rally. What is the nature of the conspiracy? Did the organizers have an underlying criminal purpose?
At this point, I know of no evidence of an underlying criminal purpose behind the August 12 rally, so the first requirement of a conspiracy might be difficult to prove. “Being a racist jerk in public” is not a crime. If it could be proven that the organizers brought 600 people to Emancipation Park with the intent of getting them to go out and attack people in the community — which some suspect, but cannot prove — there could be a conspiracy charge. But based on the information available to me, that seems unlikely.
In short, without some proof that has not yet come to light, I see no basis either a solicitation or a conspiracy indictment against any organizer or speaker at the Unite the Right rally.
How about civil liability? The Southern Poverty Law Center has had success with civil suits against white supremacist organizations. How about suing the organizers or speakers for money damages?
That’s for tomorrow.
