Why it will be hard to convict neo-Nazi James Alex Fields of hate crimes

A Virginia jury deliberated for just seven hours to convict James Alex Fields with the murder of 32-year-old Heather Heyer — and another four to recommend that he spend life, plus another 419 years, in prison.

But federal prosecutors tasked with convicting Fields on 29 additional hate crimes face a tougher battle, although they haven’t ruled out seeking the death penalty.

Hate crimes are difficult to prove because the burden falls on the prosecution to demonstrate that bias or hatred against a protected group motivated an individual to commit a crime. In Fields’ case, federal prosecutors will need to show that the 21-year-old neo-Nazi rammed his car into a crowd during last year’s violent “Unite the Right” rally in Charlottesville, Virginia, to harm the ethnically and racially diverse protesters — not just because he viewed them as his ideological or political opponents.

“Many of the individuals in the crowd were chanting and carrying signs promoting equality and protesting against racial and other forms of discrimination,” according to the indictment, announced by former Attorney General Jeff Sessions on June 27.

Several of the people Fields injured were not white, but Heyer, the only person killed, was white. Under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009, however, Heyer’s race shouldn’t necessarily matter: The language includes crimes against an individual based on their “actual or perceived” race, color, religion, national origin, disability, gender, sexual orientation or gender identity.

That means the case against Fields will hinge, in part, on his perception of the protesters — Heyer included — rather than their actual racial and ethnic composition. Prosecutors will then have to prove that Fields’ perception motivated him to commit violence.

During Fields’ state trial, prosecutors demonstrated premeditation by introducing a meme Fields posted to Instagram months prior to “Unite the Right” that showed a car plowing into a group of protesters. Federal prosecutors might try to introduce similar evidence, like Fields’ behavior earlier the day of the rally. For example, he was photographed marching alongside white supremacists, holding a shield emblazoned with the logo of Vanguard America, a neo-Nazi hate group.

“We don’t know the underlying facts yet,” said Kami Chavis, director of the Wake University Law School’s criminal justice program and an expert in federal hate crime legislation. “But his presence at the rally and statements he made have made beforehand would be really important in terms of deciding proving whether or not he was motivated by hate.”

Federal prosecutors have already heavily emphasized Fields’ ideological views. On his social media accounts, according to the indictment, Fields “expressed and promoted his belief that white people are superior” and espoused violence against black people, Jewish people, and any other groups he perceived to be non-white. He also supported Hitler and the Holocaust.

In the past, however, courts have been cautious to link a criminal act to a perpetrator’s ideology or membership in hate groups.

Brian Levin, a criminal law professor and director of the Center for the Study of Hate & Extremism at California State University, San Bernardino, pointed to a 1992 Supreme Court decision that overturned a death sentence for David Dawson, a member of the white supremacist prison gang Aryan Brotherhood, who broke out of prison and murdered an elderly white woman.

A jury used Dawson’s membership as an aggravating factor, but the Supreme Court ruled that prosecutors hadn’t demonstrated his chapter engaged in or promoted racist, violent acts.

In Fields’ case, the federal government may have a stronger argument to prove his motive because Unite the Right was an inherently violent event, predicated on promoting violence against protected groups, from the start. Earlier this year, a judge allowed a federal lawsuit against Unite the Right organizers to proceed because the plaintiffs “adequately alleged that defendants formed a conspiracy to hurt black and Jewish individuals, and their supporters, because of their race at the August 11th and 12th events.”

At the end of the day, federal prosecutors might decide not to pursue the charges against Fields any further. When state prosecutions succeed, the feds often drop their cases, according to experts.

“If it comes to a trial, you’re forcing witnesses to relive the trauma,” said James Jacobs, a criminal law professor at New York University who is an expert in hate crime law. “And there’s a question of resources. The trial would tie up federal prosecutors for a year.”

Dual prosecutions are less unusual in cases of national significance though. For example, Dylann Roof — the self-avowed white supremacist who opened fire on a church in Charleston, South Carolina, in 2015 and killed nine black parishioners — faced both state murder charges and federal hate crime charges.

But even the symbolic value of hate crimes charges can matter.

“I have argued in some of my writings that symbolism is very important. But it can’t just be symbolism because it has to be vigorously enforced,” Chavis said. “You want to deter someone from perpetrating crimes against people because of their membership in a protected class.”

A status conference in Fields’ hate crime trial is scheduled for Jan. 31 in Charlottesville.

Cover image: James Alex Fields Jr. stands on the sidewalk looking at a procession of clergy members as they gathered at McGuffey Park, ahead of a rally in Charlottesville, Virginia, on Saturday, Aug. 12, 2017. (Eze Amos via AP)