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PaperclipPerfector  1yr ago (text post)   33025 thread views

Culture War Roundup for the week of April 17, 2023

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Remember the Alt-Right march in Charlottesville in 2017? Feels like forever ago. Today several people were indicted on felony charges for "intimidation" related to the tiki torch march:

An Albemarle County grand jury issued indictments of burning an object with the intent to intimidate.

According to a release, these indictments allege an offense date of Aug. 11, 2017.

The charge is a Class 6 felony and anyone who is convicted may face up to five years in prison.

These indictments are part of an ongoing, active criminal investigation connected with the march and the violent Unite the Right rally that occurred the next day.

There is no statute of limitations on felonies in Virginia.

Here is Section 18.2-423.01-B of the Code of Virginia:

§ 18.2-423.01. Burning object on property of another or a highway or other public place with intent to intimidate; penalty.

A. Any person who, with the intent of intimidating any person or group of persons, burns an object on the private property of another without permission, is guilty of a Class 6 felony.

B. Any person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury is guilty of a Class 6 felony.

Apparently this case was the subject of a minor debate in the campaign of the sitting prosecutor and his challenger:

But in Virginia, prosecutors come and go and a felony lives forever. In an October 2019 debate between then-sitting prosecutor Tracci and his challenger, Jim Hingeley, Tracci again scoffed at the idea of indicting these cases, saying Hingeley's belief that it was even possible was a sign he was inexperienced and wrong for the job. A month later, in November 2019, Hingeley won the election. Now it seems he's trying to make good on his campaign promise of proving Robert Tracci wrong.

It goes without saying that this is a political persecution, a few years ago I would have assumed First Amendment protections would still hold even for the far right but I think that ship has sailed. I am confident they will be able to get convictions or guilty pleas for a lesser sentence. Who would want to face five years for holding a tiki torch at a political rally?

I would guess the original intent of the law was to outlaw cross-burning.

No, cross burning with intent to intimidate is a separate crime in VA.

If you can occasionally burn a cross on a Black family's lawn without it rising to intimidation,

Note that your block quote misstates the decision. The law at issue in Virginia v. Black was unconstitutional only because of one provision. The provision said: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

So, the Court did NOT "h[o]ld that the provision allowing the jury to infer intent to intimidate from the public burning of a cross was unconstitutional," because the provision didn’t say that. Rather that the provision required the jury to infer that intent, if not rebutted by the defendant.

And note that there were two cases consolidated in Black. The first conviction, involving people who burned a cross at a Klan meeting, was reversed. The second, involving defendants who burned a cross on a Black family's lawn, was not reversed, It was remanded to the VA Supreme Court to give them an opportunity to interpret the prima facie provision to render it constitutional.

If you are willing to mind-read people then thought crimes are easy, I suppose.

99% of crimes require the jury to find that the defendant acted with a particular mental state. Attempted murder does not become a "thought crime" because it requires the intent to kill, nor does extortion become a thought crime because it requires intent to cause fear. I am skeptical of this prosecution (though I don’t know what, specifically, these particular defendants are alleged to have done), but this particular criticism seems to miss the mark.

Why are you skeptical in this case? The inference of intent is a jury finding and basically not reviewable. Are you skeptical that a jury would be unwilling to determine they intended to intimidate?

I am skeptical because prosecutors tend to push the boundaries of statutes and the First Amendment all the time and so engender skepticism, and because it benefits the prosecutor to bring a dubious case and then blame the judiciary if the case gets properly tossed, or blame the jury if they lose (as often happens with "tough on crime" prosecutors, who have a similar incentive to overcharge, and who similarly use the judiciary as scapegoats when dubious charges get thrown out).

Do I understand you correctly, that you think there is a plausible First Amendment issue here? Do you see this as a problem with the statutory construction, or with the application of an otherwise valid law?

The application. But only potentially. We don't know enough about what specifically the defendants are alleged to have done. The law itself is clearly perfectly fine under Virginia v. Black.

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