Have you noticed that, according to their critics, American politicians are concurrently Nazis (imposing vaccine mandates/separating immigrant families), Socialists (expanding Medicaid/favoring specific industries), Communists (Infrastructure spending/umm . . . no right wing equivalent here, sorry), and Anarchists (defunding the police/eliminating environmental regulations) and above all <gasp> Capitalists (just about every other policy initiative of both parties)? That’s a pretty neat trick and, according to the critics, it is not how things were done in the “good old days” (which means the last time the party the critic favors was in power for any appreciable length of time).
Except of course, it’s not a trick and it’s not particularly new. It’s just how a democracy works. We need to stop conflating political theories (communism, socialism, capitalism, national socialism, nihilism) with political systems (monarchy, democracy, oligarchy, theocracy, autocracy, kleptocracy, plutocracy, anarchy).
To the extent that any of these actions are actually occurring, they are all examples of a democracy operating under the Rule of Law — because they are being done by democratically elected representatives following proscribed processes and subject to review by an independent judiciary. Socialized medicine is a “socialist” policy, but when adopted by a democratic process, it is also a democratic one. Imposing health and safety requirements is an exercise of a “police power” and, thus, is the action of a “police state” (which is, irrespective of what the Hitler regime and other similar regimes did with that power, the essence of national socialist political theory), but when adopted by a democratic process, it is also a democratic one. Even a complete abnegation of responsibility for governance, when adopted by a democratic process, is a democratic policy.
One of the great things — arguably the only great thing — about democracy as a political system is that it can select the best policies from different political theories to benefit society and the individual in the proper, if not always equal, measure. We are free to condemn the selection of a particular policy as not correctly achieving a proper social/personal balance, but in labeling the process as manifestation of a wholesale embrace of that theory as a system of government, we expose our ignorance of the essence of democracy and the distinction between political policy and the governmental process through which the policy is adopted and enforced.
In theory, any governmental system will provide a perfect balance of social and individual liberty. In practice, none of them can. Winston Churchill said it best. Democracy is the worst form of government, except for all the others. Churchill understood that democracy is the only practical system of government with the flexibility to craft policies based on their pragmatic effect on society and the individual, and more to the point, with the flexibility to correct missteps in policymaking without resorting to violence. That process is often frustratingly slow — viz. the abolition of slavery — but it is infinitely preferable to resorting to violence to overthrow that process and impose the collective will of a minority — or even a majority — on the whole.
In the short time that this blawg has been in existence, I have had the pleasure of meeting several of its readers. The most common comment I have received in these encounters is that the humor with which I tend approach my subjects is appreciated. But there is nothing at all humorous about the one published opinion from the Court of Appeals released today.
James A. Fields, s/k/a James Alex Fields v. Commonwealth of Virginia is the appeal of the 1st degree murder conviction and numerous related felonies occurring during the “Unite the Right” rally in Charlottesville in 2017. Fields is the individual who deliberately drove his vehicle into a group of “counter-protestors” killing one and severely injuring several others.
I wish to go on record that as an ardent defender of the Constitution and a civil libertarian I support the right of persons who are so inclined to spew vile hatred at others for any reason – race, ethnicity, creed, sexual orientation, or political viewpoint – the First Amendment protects them all, provided that they keep their discourse confined to words and speech equivalents that neither incite nor advocate violence. When such vile hatred is converted to action, however, I have no truck with those who insist that such action can be justified.
Fields was just such a person. The evidence that was produced at his trial showed beyond any reasonable doubt that he went the Charlottesville not merely prepared to commit an act of violence, but with the express intent to do so, and with the sure belief that he was justified in his actions. How this hatred was bred into him it is difficult to say, but it is clear that it was certainly not discouraged by his mother, whose role in the events of August 12, 2017 are made plain in today’s opinion, as we shall see.
Fields has four issues, only the first of which has any potential traction for a reversal. Fields contended that the circuit court erred in not granting a change of venue owing the extensive publicity surrounding the Unite the Right rally and his criminal acts. The Court of Appeals gives a lengthy and authoritative discussion of the law addressing whether pre-trial publicity and the notoriety of the crime has tainted the jury pool requiring a change of venue, and it will suffice to say that here the question resolved to a single issue – could the 16 citizen – 12 jurors and 4 alternates – who were seated fairly hear the case without bias? The circuit court concluded that the selected members of the venire, having given their oath and stating that they could do so, were evidence that a fair trial could be had in Charlottesville, and denied the change of venue motion. Today, the Court of Appeals affirms, noting that it is the totality of the circumstances that must be considered when deciding a change of venue motion, not merely those factors that argue for moving the trial.
It is this point of the opinion that I will address here – because it is little understood even among attorneys that the totality of the circumstances includes those just reasons why a criminal trial ought to be held in the venue where the crimes took place. Fields’ attorneys argued that one of the reasons venue should be moved is that “community trauma in Charlottesville was too great for him to receive a fair trial.” But the Court of Appeals correctly notes that there is no authority for asserting that “community trauma” is a basis for moving venue – and rightly so because it is expressly the reason why venue should lie in the community where the crimes took place.
Venue is not simply a matter of convenience in a criminal trial. Yes, the witnesses, the evidence, the defendant, and the victim(s) are generally closely connected to the location where the crime took place and moving the trial away from the region would be inconvenient. But there is certainly no required of due process that argues in favor of venue being at the locus of the charge – in theory due process is the same from place to place. So why is venue so important.
The reason is the same as in all matters involving the Rule of Law. Venue represents a balancing of the right of the individual and the needs of society. The defendant is entitled to a fair trial before a jury of his unbiased peers; society needs to see that justice is done. Conducting a trial in the place where the crime was committed is an important part of the latter, and the former must give way except under the most extreme circumstances. Put simply, the community is a victim of all crime that occurs within it – criminal acts are an affront to the social contract under which we live and it is valuable for us to know that when the contract is breached, retribution will be exacted.
Fields’ remaining issues all related to the admission of particularly damning evidence, including two communications with his aforementioned mother, thought the first falls into the category of being hoisted on one’s own petard* in the most common of ways these days. The Commonwealth sought to confront Fields with two memes he shared on social media prior to the rally. Both depicted a car driving into a crowd. The original memes were intended to be (allegedly) humorous with captions indicating that the driver was “late for work.” However, what made these posts relevant in that the captions had been altered to specifically identify the people being struck as “protestors.” The Court of Appeals agreed with the Commonwealth and the circuit court that these images were probative of Fields’ intent.
The remaining two issue involve Fields’ communications with his mother. The first was a text message in which Fields informed her that he had been able to get time off from work and would be attending the rally. His mother replied, “be careful” and Fields responded, “We’re not the one[s] who need to be careful.” If the words were all that there was to the exchange, Fields reply would be fairly cryptic and probably would not have been deemed admissible. However, the context of the message is made clear by the fact that Fields appended the first text with a photograph of Adolf Hitler – who his own attorneys characterized as “one of the most hated men in the history of western civilization.”
With respect to the probative value versus prejudicial effect balance that is at the core of most evidentiary issues, Fields contended that the words, but not the image, could be admitted. However, the words without the context were, as already indicated, not particularly probative of anything – context of the speech is key. The fact that Fields appended his text with an image of “one of the most hated men in the history of western civilization” is the context that makes the words relevant – and the image is unquestionably likely to prejudice the jurors.
So, we need to weigh the relevance of the words in context against the prejudice that context creates, correct? Actually, no. There is no true probative/prejudice balance to be made here because the “prejudice” of displaying the words in their context is precisely what makes the entire communication highly probative of Fields’ state of mind. Associating Fields with Hitler would only be unduly prejudicial, and thus potentially outweighing the probative value, if the association were not what was probative and thus what made the evidence admissible.
Finally, Fields – who has already demonstrated an utter lack of understanding of the concept that Free Speech ought not be a license to be stupid, let alone criminal – and despite what were undoubtedly clear warnings that phone conversations between prisoners and any apart from their attorneys were taped and monitored, decided to talk to his mother about the events of August 12, 2017. As relevant to his intent, fields described his victims as “a violent group of terrorists” who were communists and waiving an ISIS flag. He called the mother of the woman who was killed an anti-white communist and referred to her as “the enemy.” As with the social media posts and the texts, the prejudice of these statements is not “undue” because it is directly probative Fields’ state of mind.
In affirming the judgment, the Court of Appeals refrained from making an observation that was undoubtedly foremost in the judges’ minds, and in the minds of the jurors: What the H*** kind of mother does Fields have? I have no compunction from making that observation and offering my on opinion. Fields has the kind of mother who imbues her son with race hatred and vile rhetoric. He has the kind of mother who receives a text from her son with an image of Adolf Hitler and a follow-up implying that he intends, or is at least considering, acts of violence and responds only with a statement of concern for his wellbeing. He has the kind of mother who calmly listens to her son describe peaceful protestors – she had to have seen the videos that disproved Fields’ claim that he was attacked by a “mob” – as “terrorists” and a grieving mother as “the enemy.”
In short, Fields had the kind of mother that many if not most men like Fields have – a woman who shares her prejudices, bigotry and hatred with her children and indoctrinates them to become haters. Legally, Fields’ mother is not responsible for his crimes. Morally, she, and the others who created this monster, are complicit in every single one.
*The origin of this phrase is “to have the enginer hoist with his own petard” and comes to us from the pen of the Bard, specifically Act 3, scene IV of Hamlet. It literally means to cause an “enginer,” a bombmaker, to be blown into the air by his own bomb. In the context of the play, Hamlet is describing his plan to turn the tables on his fratricidal uncle, King Claudius, by using the latter’s plot to have Hamlet killed by the English king to instead give Hamlet the ability to return to Denmark in secret (after arranging for his erstwhile school chums Rosencrantz and Guildenstern to be dispatch by the English instead).
Following your humble correspondent’s first appearance as an advocate before the Supreme Court of Virginia this morning, his schedule has become sufficiently flexible to allow him to play catch-up and report on the three most recent published opinion of the Court of Appeals of Virginia, two of which were released last week and the third this morning, all three from criminal cases.
Kimberly Paul Barney v. Commonwealth of Virginia is an appeal following remand after the Court reversed Barney’s convictions back in January of 2019. The fact that there is an appeal following that remand tells you that the Commonwealth was “so advised” as to retry Barney. While in the original trial the Commonwealth obtained two convictions against Barney for use of a firearm in the commission of a felony, in the second go round the prosecution secure only one such conviction. The Court of Appeals now takes away even that small victory, reversing and dismissing with prejudice.
The issue in the original appeal and in this trial was whether the jury had been properly instructed on the necessity of finding that Barney used an actual fire arm in the commission of the predicate felony – and this raises a very important distinction between statutes that permit the jury to consider the subjective view of a victim or witness and those that require the jury to make an objective determination that an actual firearm was possessed or use by the defendant.
Simply put, if the nature of the offense is one that is directed at the person of the victim, the victim’s subjective belief that the defendant is armed can be sufficient to sustain an offense in which use of a firearm is an element. Where, however, the offense is one that is directed at the active possession or use of a firearm, then the Commonwealth must show that an actual firearm was present (though the term “firearm” has a broader definition than one might assume).
In Barney’s case, she successfully robed a pharmacy by presenting a note which told the clerk that robbery was afoot and the clerk to not “make a sound if you want to live.” Barney also had a visible “bulge” under her clothing which the clerk “assumed” was a gun. In the original trial, the jury was instructed that Barney need not possess an actual gun to be guilty of the offense of use of a firearm in the commission of a robbery – which is an incorrect statement of the law.
In the trial on remand, the jury was correctly instructed . . . sort of. The instructions approved by the trial court permitted the jury to find that Barney had used a firearm based on the subjective belief of the clerk. Barney’s counsel had proffered at least one (out of ten) alternate instruction that would have correctly instructed the jury that it to find that the evidence objectively proved that Barney possessed a firearm.
So why isn’t the case remanded for a third trial with a properly instructed jury? Because the panel goes on to find that the evidence presented in the second trial was not sufficient to meet that objective standard. Barney never claimed to have a gun and never gestured toward the bulge under her clothing, which was not described in any manner as being in the outline of a gun. The only reference to a firearm was the clerk’s subjective statement that she “assumed” Barney was armed, and that, the Court concludes, is not enough to prove the possession and use of an actual firearm.
This result may surprise more than a few readers – indeed, given that the possession of a firearm can be proven by circumstantial evidence alone, it seems likely that the Commonwealth will seek a rehearing en banc or an appeal to the Supreme Court.
The other two criminal appellants did not fair so well as Barney. In Gilbert R. Nelson v. Commonwealth of Virginia, the issue is whether the sexual assault of a sleeping victim involves the use of force to overcome the victim’s will. The details are recounted in the opinion and can be summarized succinctly by saying that Nelson on several occasions paid less then proper attention to a teenage girl and was eventually charged with sexual assault, which occurred after the girl fell asleep while watching TV. She awoke to find Nelson’s hand down inside her pants. Nelson gave a less than convincing explanation that he was merely looking for the TV remote control.
Nelson conceded on appeal that the evidence was sufficient to prove the sexual assault, but he contended that the specific statute under which he was charged required proof of an active use of a threat, force or intimidation. The Court of Appeals agrees that this is the case, but notes that “force” is not the same as proving “resistance” by the victim. Moreover, force can be constructive as well as actual and constructive force is shown, primarily, by a lack of consent by the victim.
Interestingly, there is a case with some dictum more or less on point, though it required the Court to look back to 1886. In Bailey v. Commonwealth, 82 Va. 107 (1886), the court opined that “when the woman is awake, of mature years, of sound mind, and not in fear, a failure to oppose the carnal act is consent.” While this may be a bot patriarchal in tone, it does specify that the woman be both “awake” and of an age capable of consent – neither of which apply to the victim here. The Court thus takes this much of the dictum of Bailey and makes it the law of the Commonwealth.
Finally, in Brandon Alan McCarthy v. Commonwealth of Virginia we have an example of that primary rule of comedy and criminal law and procedure – Timing is everything. Mr. McCarthy was convicted of possessing heroin in violation of Code § 18.2-250. McCarthy was found unconscious and the apparently suffering from an overdose by law enforcement officers who had been dispatched there for a welfare check in response to an anonymous call. While medical personnel worked to revive McCarthy, officers searched the room for evidence of what drugs may have caused his condition and discovered the heroin inside a nightstand drawer. While the trial court mistakenly ruled that this search was valid under a community caretaker exception to warrantless searches, the Court of Appeals nonetheless finds that it was subject to the emergency aid exception.
McCarthy sought to suppress the heroin, and as relevant to this appeal, contended that subsequent amendments to Code § 18.2-251.03 protected him from prosecution and should have been applied retroactively by the trial court. McCarthy’s overdoes and arrest occurred prior to two significant changes in the statute, which at the time provided that it would be an affirmative defense to a prosecution for possession of a controlled substance if the defendant was seeking medical aid for an overdose. McCarthy didn’t qualify, as there was no evidence he self-reported the overdose.
However, the statute now provides that under such circumstances, it is no longer merely an affirmative defense, but rather a bar to prosecution and, crucially for those like McCarthy who are incapable of self-reporting their overdoses, the call for medical assistance can be made by another person.
The lede of this section telegraphs the result. The Court of Appeals held that the amendments were at least partially substantive changes to the law, not limited to procedural or remedial changes, and therefore were not retroactive in application.