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The Twisted Racial Claims in the ‘Unite the Right’ Jury Selection

The jury selection featured white nationalists demanding to know if prospective Black jurors think white people can face racism.
White supremacists and anti-racism protesters clashed in Charlottesville in 2017.
White supremacists and anti-racism protesters clashed in Charlottesville in 2017.  (Photo by Matthew Hatcher/SOPA Images/LightRocket via Getty Images)

CHARLOTTESVILLE, Virginia — Dismissing a prospective juror from duty solely because of their race is unconstitutional, according to a Supreme Court ruling from the 1980s. 

It’s probably no surprise that this issue came up only one day into the federal trial of the white supremacists who are accused of conspiring to incite racially-motivated violence at the Unite the Right rally in Charlottesville four years ago. 

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Jury selection was always going to be an arduous and challenging process in Sines v. Kessler, a massive civil suit brought by nine survivors of the violence in Charlottesville by Integrity First for America against 20 white nationalists, neo-Nazis, and their various organizations.

For two and a half days, dozens of prospective jurors shuffled in and out of the small federal courthouse, passing through extensive security measures that had been set up for the high-profile case. They faced a barrage of pointed questions from both legal sides, but in particular from the defendants, who included two white nationalists representing themselves: such as, whether they believed white people could face racism, if white nationalists should be allowed to protest, and their feelings about Confederate monuments. 

On Monday, a courtroom fight started brewing over one juror in particular, a Black man, known as Juror 197.  During his voir dire (the preliminary examination of a juror by a judge and counsel), he repeatedly affirmed that he did not harbor any bias or prejudice toward the defense or the plaintiff in the case. He said that “any group that wants to hold something that gets legal, written permission”—including white nationalists—should be allowed to hold public demonstrations. He was also quizzed on statements he’d made in the questionnaire, which all prospective jurors were required to fill out and were then distributed to both parties in the case. 

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In response to question 41, which probed prospective jurors’ views on racism toward specific groups, he’d stated that he was not particularly concerned about racism against white people. 

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A section of the jury questionaire.

Defendants wanted to know whether it was his “view that white people cannot be victims of racism.” “I think everyone can be a victim of racism, no matter the color,” he replied. “It happens every single day.” 

The plaintiffs said they felt as though he had demonstrated an ability to be impartial and set aside his own views in order to serve on the jury. 

So when defendants tried to dismiss him for “cause,” plaintiffs countered, leaving the number of confirmed jurors up in the air by the end of Monday. 

On Wednesday, Karen Dunn, one of the lead attorneys for the plaintiffs, took to the podium to speak up against defendants’ decision to dismiss Juror 197. “Some of the juror’s answers were quite favorable,” said Dunn.  “He hadn’t come to any conclusions about the case.” And he affirmed that everyone has a right to protest, so long as they do so legally, Dunn added. 

Dunn’s argument was rooted in the “Batson Challenge,” a term that stems from the 1982 Supreme Court ruling in Batson vs. Kentucky, which held that courts couldn’t exclude potential jurors on the basis of their race. It was a landmark decision that was designed to combat racial bias in the jury selection process for criminal cases (and was extended to civil cases a decade later). 

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White supremacist Richard Spencer (who is representing himself) said he wanted to dismiss Juror 197 because his answers seemed “too perfect,” according to Dunn.

James Kolenich, who is defending Charlottesville resident Jason Kessler and Nathan Damigo (ex-leader of the now-defunct Identity Evropa), asserted that Juror 197 had an “anti-defendant attitude” which he’d surmised from “looking at his face while answering the questions,” according to Dunn. And Christopher Cantwell (aka the Crying Nazi, who is also representing himself) referred to juror 197 as an “anti-white nut.” 

By contrast, said Dunn, Cantwell and Spencer were clamouring to give Juror 235 a chance on Tuesday, a white man who called the organizers of Unite the Right “evil,” and said he would find that opinion difficult to set aside. “The contrast, your honor, is stark,” Dunn told Judge Norman K. Moon. 

The defendants were given a chance to explain what they meant. Moon went away, and when he returned, he asserted that the court found that the defendants had stated a race-neutral reason, and plaintiffs hadn’t met their burden to show that their opponents in court were trying to exclude jurors solely based on their race.

“These challenges come up during jury selection, and if the judge rules a certain way, it can be appealed,” explained Brian Levin, who heads the Center for the Study of Hate and Extremism at California State University, San Bernardino. “I think this judge is making a real concerted effort to get the most unbiased jury possible, from a very complex pool of jurors.”

Jury selection wrapped up midday Wednesday. Twelve jurors were seated in total. VICE News was covering the proceedings from the courthouse. At least four jurors selected are believed to be Black. 

Follow Tess Owen on Twitter.