“Justice requires that I must take into account the pain of recent events in Charlottesville and the pain in Durham and the nation,” he said. “Justice requires that I consider that Durham citizens have no proper recourse for asking our local government to relocate or remove this monument.”
As I reported in September, legal experts saw little chance that the riot-related felony charges would stand up in court. In January, once national attention had drifted away, Echols announced he was dropping the felony charges. All charges against three of the defendants were also dropped. That left nine defendants. One of them took a deferred prosecution deal in December, but the remainder vowed to take the case to trial.
On Monday, trials began for those eight defendants, who were charged with defacing a public monument, conspiracy to deface a public monument, and injury to real property. Supporters held a rally in front of the courthouse in the morning, then packed the courtroom. The trial was heard by a judge, with no jury.
In his opening statement, in keeping with the protesters’ stance that they had acted rightly, defense attorney Scott Holmes sketched out a novel defense. Holmes argued that the statue was in violation of the 13th Amendment to the U.S. Constitution, which bans slavery; the 14th Amendment, which guarantees equal protection under the law; the North Carolina Constitution, which prohibits secession and requires allegiance to the U.S. government; and state law, which bars the teaching of overthrow of the government.
Judge Fred Battaglia showed little patience with this line of argument, and later in the day asked rhetorically whether Holmes’s argument meant that if the defendants were convicted, it would make the courthouse a symbol of white supremacy that ought to be torn down, too.
Nonetheless, it became clear almost immediately that the prosecution was in trouble. Even though videos of the statue’s destruction appeared to show the first defendant Dante Strobino, at the protest, the assistant DA didn’t put an eyewitness on the stand who placed Strobino at the scene, and Battaglia wouldn’t permit her to enter an identification by a detective who examined the video. When she tried to recall an earlier witness she had dismissed, the judge refused. As evidence of conspiracy, she produced only a grainy photo taken after the statue came down, of a car with a ladder on top. With no official evidence in the record placing Strobino at the protest, and only the photo to prove conspiracy, Battaglia dismissed the charges against Strobino.
A second trial, for Peter Gilbert, unfolded at greater length, but with similar results. The prosecution called the same witnesses, beginning with a resident who had been driving by and taken a video that she uploaded to Facebook. The video was later published by the AP and Washington Post. This time around, Holmes convinced the judge to disqualify it by pointing out that that the video could have been edited. Battaglia demanded to know why the prosecution hadn’t obtained the video directly from the witness, who had been subpoenaed to appear. The county security manager testified that a surveillance camera had been trained on the statue, but that temporary scaffolding had blocked it. The judge also refused to allow the detective to identify Gilbert solely on the basis of his appearance on video, saying the video was unclear, and noting that once again, no eyewitness had placed Gilbert at the scene.