Joint Appendix — Virginia v. Black
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Supreme Court, WS.
FILE®D
No. 01-1107
; In The
Supreme Court of the United States
COMMONWEALTH OF VIRGINIA,
Petitioner.
v.
BARRY ELTON BLACK, RICHARD J. ELLIOTT,
AND JONATHAN O’MARA,
Respondents.
SJ
On Writ Of Certiorari
To The Supreme Court Of Virginia
+
JOINT APPENDIX
©
RopNEY A. SMOLLA JERRY W. KILGORE
Counsel of Record Attorney General of Virginia
T.C. WILLIAMS SCHOOL WILLIAM H. HuRD
or LAW State Solicitor
University of Richmond Counsel of Record
Richmond, Virginia 23173 yqaupeen R. MATSEN
(804) 289-8197 WILLIAM E. THRO
Deputy State Solicitors
REBECCA K. GLENBERG ALISON P. LANDRY
Legal Director, CHRISTY A. MCCORMICK
AMERICAN CIVIL LIBERTIES Assistant Attorneys General
UNION OF VIRGINIA 900 East Main Street
Richmond, Virginia 23219
(804) 786-2436
(804) 371-0200 (fax)
Counsel for Petitioner
6 North Sixth Street,
Suite 400
Richmend, Virginia 23219
(804) 644-8080
Counsel for Respondents
[Additional Counsel Listed On Inside Cover]
Petition For Certiorari Filed January 24, 2002
Certiorari Granted May 28, 2002
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
JAMES O. BROCCOLETTI
ZOBY & BROCCOLETTI, P.C
6663 Stoney Point South
Norfolk, Virginia 23520
(757) 466-0750
DAVID P. BAUGH
SARA G. DAVIS
LAW OFFICES oF DAVID P. BAUGH
233 South Cherry Street
Richmond, Virginia 23241
(804) 643-8111
KEVIN E. MARTINGAYLE
STALLINGS & RICHARDSON, P.C.
2101 Parks Avenue, Suite 801
Virginia Beach, Virginia 23451
(757) 422-4700
Counsel for Respondents
i
TABLE OF CONTENTS
Page
Relevant Docket Entries — Barry Elton Black................... l
Relevant Docket Entries — Richard J. Elliott..................... 3
Relevant Docket Entries — Jonathan Stephen O’Mara .......... 5
Commonwealth v. Barry Elton Black:
In the Circuit Court of Carroll County:
Letter Opinion (March 18, 1999) (denying
EEE 7
Trial Transcript (June 23, 1999)..................cc:ccccceceeees 12
Photographs of Scene (Commonwealth’s Exhib-
EE ae 190
Relevant Jury Instructions and Verdict Form ......... 194
Order (June 28, 1999) (conviction and sen-
CC E————E— 198
Opinion, Court of Appeals of Virginia.......................... 201
Commonwealth v. Richard J. Elliott:
In the Circuit Court of the City of Virginia Beach:
Hearing Transcript, Commonwealth v. Jona-
than Stephen O’Mara and Commonwealth of
Virginia v. Richard J. Elliott (January 20,
SILL 202
Order (January 25, 1999) (denying motion to
EEE 224
Trial Transcript, Excerpts (February 22, 1999) ....... 225
«+
~~,
A'S
‘3
TABLE OF CONTENTS - Continued
Page
— 249
Relevant Jury Instructions.............------+. eek
Order (February 25, 1999) Gury trial = a -
YOTICE).......0cccccecsssccseeeccessnssersessncssonersssnsnsessnnsones =
Order (May 6, 1999) (imposing SENTENCE) .......---+0+++
Commonwealth v. Jonathan Stephen O’Mara:
In the Circuit Court of the City of Virginia Beach:
256
Order (May 6, 1999) (imposing sentence) ...........++++
Opinion of the Court of Appeals of Virginia -
(consolidating Elliott and O’Mara | ee
f Virginia
inion of the Supreme Court o
(consolidating Black, Elliott and O’Mara cases) .........
Newspaper articles cited by Supreme Court of
Virginia ............0-ceressseessssnenrenensnsnssenenensnensnenansnnsnnes
1
RELEVANT DOCKET ENTRIES
COMMONWEALTH v. BARRY ELTON BLACK
In the Circuit Court of Carroll County:
November 16, 1998 Warrant
November 16, 1998 Motion to Dismiss Alleging the
Unconstitutionality of Section
18.2-423 with Supporting Mem-
orandum of Law
December 7, 1998 indictment — Burning a Cross
with the Intent to Intimidate
December 21, 1998 Motion to Dismiss Indictment
January 27, 1999 Transcript of Preliminary Hear-
ing 11/13/98
February 4, 1999 Order — Motion Hearing 1/27/99
(denying defendant's motion to
a
February 17, 1999 Transcript Hearing 1/27/99
June 23, 1999 Jury Instructions
June 23, 1999 Jury Verdict
June 23, 1999 Punishment Verdict
June 28, 1999 Order - Jury Verdict [and sen-
tencing] 6/23/99
July 7, 1999 Notice of Appeal
August 23, 1999
Transcript of Jury Trial, 6/23/99
2
In the Court of Appeals of Virginia:
July 12, 1999 Notice of Appeal
October 15, 1999 Petition for Appeal
December 19, 2000
January 26, 2001
Order [affirming trial court)
Petition for Appeal to the Su-
preme Court of Virginia
In the Supreme Court of Virginia:
January 17, 2001
April 16, 2001
November 2, 2001
Petition for Writ of Appeal
Order Granting Writ of Appeal
Opinion of the Supreme Court
of Virginia
3
RELEVANT DOCKET ENTRIES
COMMONWEALTH v. RICHARD J. ELLIOTT
In the Circuit Court of the City of Virginia Beach:
May 27, 1998
August 21, 1998
"October 21, 1998
"October 23, 1998
November 4, 1998
‘January 20, 1999
January 25, 1999
February 22, 1999
February 23, 1999
February 25, 1999
February 25, 1999
April 30, 1999
May 6, 1999
June 25, 1999
Warrant of Arrest
Grand Jury Indictment
Defendant O’Mara’s Motion to
Dismiss Indictment
Defendant Elliott’s Motion to Join
in O’Mara’s Motion to Dismiss
Indictment
Memorandum of Law in Support
of Defendant’s Motion to Dismiss
Transcript of Hearing on Motion
to Dismi
Order [denying defendant’s mo-
tion to li . . di ’ t]
Jury Instruction
Jury Verdict
Criminal Order [trial on 2/22/99,
continuance]
Criminal Order [conclusion of
trial on 2/23/99, conviction]
Notice of Appeal
Sentencing Order
Notice of Tending of Transcript
” Indicates items appearing in record, but not on clerk’s docket
sheet.
4
In the Court of Appeals of Virginia:
April 30, 1999 Notice of Appeal
September 27, 1999 Petition for Appeal
October 3, 2000 Order and Opinion of Court [af-
. firming irial court)
October 5, 2000 Petition for Rehearing and Re-
hearing en banc
Decem , 2000 Order [denying petition for re-
sales hearing and rehearing en banc]
December 21 and 22, 2000 Notice of Appeal to the Supreme
Court of Virginia
In the Supreme Court of Virginia:
December 22, 2000 Petition for Writ of Appeal
April 16, 2001 Order Granting Writ of Appeal
November 2, 2001 Opinion, Supreme Court of
Virginia
5
RELEVANT DOCKET ENTRIES
COMMONWEALTH v. JONATHAN STEPHEN O’MARA
In the Circuit Court of the City of Virginia Beach:
May 23, 1998 Warrant of Arrest
July 24, 1998 Grand Jury Indictment
October 22, 1998 Motion to Dismiss
‘January 20, 1999 Hearing on Motion to Dismiss
January 25, 1999 Order [denying defendant's mo-
tion to dismiss indictment]
February 22, 1999 Plea Agreement
February 25, 1999 Criminal Order
April 26, 1999 hice of Appeal
May 6, 1999 Sentencing Order
June 6, 1999 Notice of Filing of Transcripts
In the Court of Appeals of Virginia:
April 29, 1999 Notice of Appeal
September 9, 1999 Petition for Appeal
October 3, 2000 Order and Opinion of Court
(affirming trial court]
October 12, 2000 Petition for Rehearing en banc
December 13, 2000 Order [denying petition for re-
hearing en banc]
December 22, 2000 Notice of Appeal to the Su-
preme Court of Virginia
” Indicates items appearing in record, but not on clerk’s docket
sheet.
In the Supreme Court of Virginia:
January 8, 2001 Petition for Writ of Appeal
April 16, 2001 Order Granting Writ of Appeal
November 2, 2001 Opinion, Supreme Court of
Virginia
TWENTY-SEVENTH JUDICIAL CIRCUIT
OF VIRGINIA
(LOGO)
Commonwealth of Virginia
[Name And Address Omitted In Printing]
March 18, 1999
[Filed Aug. 31, 1999]
Mr. David P. Baugh
Attorney at Law
223 South Cherry Street
P. O. Box 12137
Richmond, Virginia 23241
Mr. Gregory G. Goad
Commonwealth Attorney
County of Carroll
P. O. Box 280
Hillsville, Virginia 24343
Re: Commonvwealth of Virginia versus Barry E. Black
Case Number 98-8954
Dear Counselors:
Please be advised that I have reviewed all of the memo-
randums filed in this cause, both in the General District
Court and in the Circuit Court, on behalf of each of the
parties, and the Amiscus [sic] Curiae brief filed in support
of the defendant’s position in this matter, and I have given
due consideration thereto.
8
The issue before the Court is the motion to dismiss the
indictment against the defendant, Barry E. Black, upon
the ground that Section i8.2-423, Code of Virginia is
unconstitutional and violates the freedom of speech
violations of the First Amendment of the United States
Constitution, and Article I, Section 12 of the Virginia
Constitution. In support of tha. notion, the defendant
alleges as follows:
1. Section 18.2-423 discriminates on the basis of content
and viewpoint and is unconstitutional under the doctrine
of R. A. V. v. City of St Paul.
2. Section 18.2-423 does not incorporate the requirement
that the speech at issue be directed to the incitement of
imminent lawless action and likely to produce such action,
and as such is unconstitutional under the standard of
Brandenburg v. Ohio.
3. The prima facie evidence standard of Section 18.2-423
creates an unconstitutional presumption.
4. Section 18.2-423 is «nconstitutionally vague and
overbroad.
Rather than discuss the issues in the chronology set forth
above, the court has determined that it would be appropri-
ate to consider them, to the extent necessary, in reverse
order. I have chosen this approach since the ultimate
reviewing authority, the United Sates Supreme Court, has
held that in construing ordinances that Court is bound by
the construction given to it by the State Court. R. A. V. v.
City of St. Paul, Minn., 505 U.S. 377, 381; 112 S.Ct. 2538,
2542 (1992). First it is noted for the record that the Com-
monwealth in this case is represented, not only by the
local Commonwealth Attorney, Gregory G. Goad, but also
9
by John McLees, from the Office of the Attorney General of
the Commonwealth of Virginia. The Court is of the opinion
that the arguments set forth in the memorandums filed on
behalf of the Commonwealth represents not only the
official position of the Commonwealth Attorney of Carroll
County, but also the Attorney General’s Office of the
Commonwealth of Virginia. Throughout the lower court
proceedings and in the current proceedings in the Circuit
Court, the Commonwealth has maintained the gravaman
[sic] of the offense is intimidation in that Code Section
18.2-423' criminalizes on the burning of a cross “with the
specific intent to intimidate”, (Comm. Brief Gen. Dist. Ct.,
Page 3 and Comm. Brief, Cir.Ct., Page 3). In addition, in
support of its response to the allegation that the section is
vague and overboard its position is that “intimidation” as
used in such statutes, means putting one in fear of bodily
harm and further that statutory construction would
require this Court to construe the word narrowly, (Comm.
Supplemental Brief, Page 10).
In responding to the defendant’s allegation that the prima
facie provision of the statute creates an unconstitutional
presumption, the Commonwealth concedes that “the
‘prima facie’ provision does not preclude review by a case-
by-case basis of whether the defendant did in fact intend
to intimidate others by his act of cross burning. On the
' Section 18.2-423, Code of Virginia, states: It shall be unlawful for
any person or persons, with the intent of intimidating any person or
group of persons, to burn, or cause to be burned, a cross on the property
of another, a highway or other public place. Any person who shall
violate any provision of this section shall be guilty of a Class 6 felony.
Any such burning of a cross shall be prima facie evidence of an
intent to intimidate a person or group of persons.
10
contrary, it requires such review. It merely establishes that
a reasonable inference of such intent can be drawn from
cross-burning. The ultimate burden of persuasion of intent
to intimidate always rests upon the Commonwealth. Thus,
it is always open to the defendant to contest the issue of
whether that intent existed, and the burden is on the
Commonwealth to prove such intent, as a matter of fact,
beyond a reasonable doubt, and without regard to whether
the defendant has presented evidence on that issue or
not”. (Comm. Supplement Brief, Page 9).
The Commonwealth concludes by stating “It is clear from
reading the law that, notwithstanding the ‘prima facie’
provisions, the ultimate burden is still on the Common-
wealth to prove beyond a reasonable doubt that the
defendant actually intended to intimidate others by his
actions”.
This Court accepts the Commonwealth’s position that the
Code Section 18.2-423 reaches only the crime of intimida-
tion when an accused actually intended to intimidate
others by his actions, such limitation saves the statute
from being a proscription of speech in violation of the First
Amendment and Article 1, Section 12 of the Virginia
Constitution. The narrow application of the provisions of
the above referenced section can be adequately addressed
by appropriate instructions to the jury and well defined
perimeters with regard to admission of evidence to the
very limited and precise criminal act defined therein.
Accordingly, the defendant’s Motion to Dismiss the indict-
ment is denied. I request that Mr. Goad contact Mr. Baugh
to arrange a suitable date to proceed with the trial of this
case.
11
I commend both of you gentlemen on the time, effort and
excellent memorandums which you submitted to the Court
in support of your respective positions.
With best regards.
Yours very truly,
/a/ Duane E. Mink
Duane E. M’nk
DEM:nc
12
[1] VIRGINIA: IN THE CIRCUIT COURT OF CAR-
ROLL COUNTY
COMMONWEALTH OF VIRGINIA, _ | CR98-461
Plaintiff,
vs.
BARRY ELTON BLACK,
Defendant.
SSSSSSSSSSKSESESESRSESSESSESESESSEE
TRIAL BY JURY
anne
Hillsville, Virginia
June 23, 1999
[2] VIRGINIA: IN THE CIRCUIT COURT OF CAR-
ROLL COUNTY
COMMONWEALTH OF VIRGINIA, | CR98-461
Plaintiff,
vs.
BARRY ELTON BLACK,
Defendant.
13
Report of all the testimony, together with the motions,
objections, and exceptions on the part of the respective
parties, the action of the court in respect thereto and other
incidents of the trial held in the case of the Common-
wealth of Virginia, Plaintiff, vs. Barry Elton Black, Defen-
dant, tried at Hillsville, Virginia, on the 23rd day of June,
1999, before the Honorable Duane E. Mink, Judge of the
Circuit Court of Carroll County, Virginia.
[3] APPEARANCES
For the Commonwealth of Virginia:
GREGORY G. GOAD
CARLA “™ ZLINS
Commonwealth’s Attorney for Carroll County
P.O. Box 280
Hillsville, Virginia 24343-0280
(540) 728-7082
JOHN McLEES
WILLIAM HURD
Office of the Attorney General
900 E. Main Street
Richmond, Virginia 23219
(804) 786-4624
For the Defendant:
DAVID P. BAUGH
SARA G. DAVIS
David P. Baugh, PC
P. O. Box 12137
Richmond, Virginia 23241
(804) 643-8111
14
Court Reporter:
DEBBIE A. WILSON
Blue Ridge Court Reporting, Inc.
P. O. Box 251
Galax, Virginia 24333-0251
(540) 236-9426
[4] INDEX
GUILT PHASE OF THE TRIAL:
ARRAIGNMENT OF THE DEFENDANT
JURY PANEL CALLED, VOIR DIRE and
JURORS SEATED
PRELIMINARY INSTRUCTIONS TO THE
JURY '
OPENING STATEMENTS
By Mr. Goad
By Mr. Baugh
WITNESSES CALLED ON BEHALF
OF THE COMMONWEALTH:
SHERIFF H. WARREN MANNING
Direct Examination by Mr. Goad
Cross Examination by Mr. Baugh
FIRST SERGEANT RICHARD C. CLARK, JR.
Direct Examination by Mr. Goad
Cross Examination by Mr. Baugh
10.
52.
15
REBECCA SECHRIST
Direct Examination by Mr. Goad
Voir Dire Examination by Mr. Baugh
Continued Direct Examination by Mr. Goad
Cross Examination by Mr. Baugh
Re-Direct Examination by Mr. Goad
Direct Examination by Mr. Baugh
‘
INSTRUCTIONS PREPARATION
THE COURT'S INSTRUCTIONS TO THE
JURY
CLOSING ARGUMENTS
By Mr. Goad
By Mr. Baugh
By Mr. Goad
VERDICT OF THE JURY - GUILT PHASE
SENTENCING PHASE OF THE TRIAL:
INSTRUCTIONS PREPARATION
THE COURT'S INSTRUCTIONS TO THE
JURY
OPENING STATEMENTS
By Mr. Goad
By Mr. Baugh
16
EVIDENCE STIPULATION OF THE
PARTIES
228.
(6) CLOSING ARGUMENTS
By Mr. Baugh 231.
By Mr. Goad 233.
VERDICT OF THE JURY - SENTENCING
PHASE 235.
* . *
MOTIONS MADE
By Mr. Goad 11, 5S, 60.
By Mr. McLees 37.
By Mr. Baugh 60, 95, 106, 107, 116,
152, 153, 156, 164, 237, 240
OBJECTIONS NOTED
By Mr. Goad 116, 24, 26, 28, 32, 40, 43, 44, 45,
94, 95, 117, 130, 138, 159, 160, 161.
By Mr. McLees 96, 98, 129, 171, 172
By Mr. Baugh 37, 41, 44, 45, 46, 83, 85, 87,
115, 127, 128, 129, 133, 135, 137,
153, 166, 170, 205, 209, 210, 237.
EXCEPTIONS NOTED
By Mr. Baugh 116, 133, 156, 161, 168, 172, 210.
CERTIFICATION OF THE RECORD ON
APPEAL 244.
17
(7) EXHIBITS ENTERED IN THE CASE
COMMONWEALTH’S EXHIBIT #1, a photograph
of the scene of the rally in Carroll County, Virginia,
is received and filed as a part of the Court record in
GD I cerncccnnatanetccnnnnnitinaiienttertmenenememnnene 74
COMMONWEALTH’S EXHIBIT #2, a photograph
of the scene of the rally in Carroll County, Virginia,
with a mark at the approximate placement of the
cross, is received and filed as a part of the Court
I ccrccsnremennteentemenengnneen 75
COMMONWEALTH’S EXHIBIT #3, a photograph
of the scene of the rally in Carroll County, Virginia,
with a mark at the approximate placement of the
Sheriffs car, is received and filed as a part of the
court record in this Case .................ccccseccssseceseeereeeeees 75
COMMONWEALTH’S EXHIBIT #4, a photograph
of the scene of the rally in Carroll County, Virginia,
is received and filed as a part of the Court record in
BGI cicccccdctncinnsscntncsnensenesstinnmnscensustmemaresseeeeen 75
COMMONWEALTH’S EXHIBIT #5, the written
stipulation of the parties of the Defendant Barry
Elton Black’s prior criminal record, is received and
filed as a part of the Court record in this case.......... 229
[8] HILLSVILLE, VIRGINIA. JUNE 23, 1999. 9:00 A.M.
(Court Reporter is sworn to take down and transcribe
the proceedings in this case faithfully and accurately to
the best of her ability and to be subject to the control and
discipline of the Court.)
18
IN THE COURT'S CHAMBERS - OUT OF THE
PRESENCE OF THE JURY
[Present are the Court, the Clerk, the Court Reporter,
Mr. Goad, Ms. Collins, Mr. McLees, Mr. Hurd, Mr. Baugh,
Ms. Davis, and the Defendant, Barry Elton Black.]
MR. BAUGH: Your Honor, I have advised the
Defendant of his right to be present during bench confer-
ences and chambers conferences and under Rogers vs.
United States, he’s elected to waive his right to be present.
THE COURT: Oh, really? All right. Of course,
you have every right to be present throughout, you know.
MR. BLACK: Yes, sir. I understand, but I have
all confidence in my lawyer. There’s no sense in me, [9]
because it’s, it’s, but all, 'm a layman and it would be
things I probably wouldn’t understand anyway.
THE COURT: All right. I prefer to have you
present, but if you would rather be some place else . . .
MR. BLACK: Well, if you would prefer to have
me present, I'll stay, sir.
THE COURT: All right. The case on the docket
for today is Commonwealth of Virginia versus Barry Elton
Black. Is the Commonwealth ready for trial today?
MR. GOAD: Yes, sir. We are.
THE COURT: And is the Defendant ready?
MR. BAUGH: The defense is ready, Your Honor.
THE COURT: All right. Let’s see. We can either
have the arraignment back here before we go out front or
we can go out front and have it done in open court. I have
19
elected to keep the jury on the third floor in the General
District Court and just call the, call them up as we need
them and we'll start with twenty (20), of course, in the
beginning and then we'll send, send for the others. So with
that procedure, I don’t think it matters much - whether
we do it back here in chambers or whether we do it in open
court, eventually we'll have to tell the [10] jury in open
court who the Defendant is and the charges against him
and what his plea is.
MR. BAUGH: I have no objection to arraigning
him in chambers.
THE COURT: All right.
MR. BAUGH: My counsel, my client has re-
viewed the charge, he knows the elements, he would waive
formal reading and ask the Court to enter a plea of nct
guilty. He would demand trial by jury.
THE COURT: Very well. Then before I accept
your, the waiver of the reading of the indictment, the
arraignment is simply reading the indictment orally to you
either here in chambers or in open court and letting you
make a formal plea of guilty or not guilty. Do you join in
the waiver just presented by your attorney?
MR. BLACK: Yes, sir.
THE COURT: And is it your request to be tried
by a jury?
MR. BLACK: Yes, sir.
THE COURT: All right. And you fully under-
stand the charge?
MR. BLACK: Yes, sir.
20
[11] THE COURT: All right. Then before we go
out and select our jury, is there anything we need to take
up in chambers?
MR. BAUGH: Two (2) things — one (1) is a
motion in limine I’ve just been served. I will halfway
concede with my opponent, so — “that the Court previously
ruled that Virginia Code Section $18.2-423 is constitution-
ally valid, therefore the undersigned asks the Court to
prohibit the Defendant from arguing to the jury the consti-
tutional issue and to refrain from arguing the Defendant
was exercising his right to free speech” — I agree that it
would be improper to ask the jury to rule on the constitu-
tionality of the statute. I do believe it is within the Defen-
dant’s right to argue that it is a free speech issue and he is
exercising his right to free speech. He’s saying this be-
cause he wants to say it and he believed that it was
protected. I believe that is, if nothing else, mitigating and
it should be argued.
THE COURT: Mr. Commonwealth, why do you
think the last portion of that — the right of free speech —
would be improper to argue to this jury?
MR. GOAD: It would be our position that when
[12] the Court upheld the statute, he essentially said that
this is, the issues in this case are not constitutional in
nature, when it upheld the statute, and therefore it would
be improper for them to bring the Constitution issue back
into it in consideration of the Court’s prior ruling.
THE COURT: Well, theyre not going to, as I
understand it, they're not going to mention the constitu-
tional, the constitutionality of the statute.
MR. BAUGH: That’s exactly right.
21
THE COURT: But why wouldn’t it be mitigation
if he feels he was exercising free speech and not for the
purpose of intimidating, isn’t that the whole thing? That
it’s, the statute says that if you do this, you’re doing it
with the inference at least that it’s for the purpose of
intimidating? Doesn’t, does he ‘ust have to admit that he’s
. intimidating? Doesn’t he have the right to try to explain
why, why he was doing it?
MR. GOAD: Yes. He does, but I don’t think he
has the right to say it’s freedom of speech.
THE COURT: Anything else?
MR. GOAD: Judge, of course, what is an issue is
whether there was an intent to intimidate. If he didn’t [13]
have the intent to intimidate, then he’s not guilty, so I
don’t think that freedom of speech would apply there and
so far as mitigation, that would only be in the punishment
phase and he can argue that in the punishment phase.
THE COURT: Mr. Baugh?
MR. BAUGH: Your Honor, mitigation is also,
there’s mitigation of the elements and there’s mitigation of
punishment and it’s my position that he, he is mitigating
his guilt by arguing that he was under the impression or
my arguing that he was under the impression that he was
making a statement that he thought was lawful. The jury
will decide whether or not it’s in conformity with the law,
but I would say that it is permissible and the Defendant
does have the right to free speech whether this statute is
constitutional or not, he still enjoys the right to free
speech and I don’t think the Court can take that issue
from the jury.
22
I'm not arguing the legality of it, [m arguing the
factual validity of it.
THE COURT: Anything else?
MR. GOAD: Just that the freedom of speech is
separate from intimidation of others and then again I, [14]
mitigation is punishment, not guilt. He’s either guilty or
not guilty. There’s no mitigation of it.
THE COURT: Well, I don’t think the Common-
wealth of Virginia or any other state can declare a crime of
this nature to be a crime per se and it’s a legitimate
inference the jury may draw, but I think that, that the
Defendant, since since he’s faced with the provisions of the
statute has the right to explain any other reason that he
may have for burning that cross — whether it’s good, bad or
indifferent, I think he has the right to explain it and I’m
going to permit you to let him explain it in that fashion, if
that’s his explanation.
MR. BAUGH: Or if I can raise it through an
inference through another witness, yes.
THE COURT: That’s my ruling, but you can’t
mention the fact, of course, the Court’s ruled that it’s
constitutional. That’s out.
All right. Anything else?
MR. BAUGH: The voir dire issues are going to
be involved. Your Honor, I have received from my oppo-
nent, who’s really, I wish he wasn’t such a nice guy, he
was kind enough to send me his objecticns to my proposed
voir [15] dire issues. I will tell the Court — which puts me
in a very strange position.
23
The Court is familiar with the Charity case. That’s
where the Judge in Virginia Beach refused to let me do
voir dire and then the case was affirmed. Judge Annun-
ziata said however, oh, well, so he may have violated the
Canons of Judicial Conduct, it’s harmless error. I had, I
was up in Northern Virginia a couple of weeks ago and
saw Judge Annunziata and I told her that, based upon
that ruling, my only recourse now in a voir dire issue was
to take the contempt. That’s the only way I can preserve
the issue. She thought it was funny.
The pressure, under the statute, Virginia has an
extremely liberal statute on voir dire. ’'m allowed to raise
any issue that I believe will reflect bias or prejudice
involved in the case. It’s not limited to bias just against
the Defendant, but bias and prejudice concerning the law.
Based upon my investigation, I am of the conclusion that
there are some people in the area who consider my client’s
behavior to be an embarrassment and to reflect poorly
upon the community. My concern is that these people may
seek to avoid that embarrassment by [16] disassociating
themselves from the Defendant’s conduct by punishing
him severely or convicting him.
Therefore, I believe that is an issue that must be
raised on voir dire to determine whether or not there is a
sensitivity as to what a verdict of acquittal would do based
on their sensitivities.
Additionally, counsel has objected to my commenting
or talking to the jury about the range of punishment. As
the Court is aware, this carries anything from a dollar
($1.00) fine up to five (5) years. Many prosecutors object to
raising that issue on voir dire, whether or not they're
willing to consider the full range of punishment if they’re
24
already convinced that if he’s guilty, I’m going to give him
this sentence or give him this sentence. I’m willing to offer
. the Commonwealth the option of if we don’t raise that
issue and the Defendant is convicted, we'll just voir dire
another jury on their bias concerning the full range of
punishment and pick another one (1). But being as how we
do have bifurcated trials with one (1) jury, I am entitled —
going into this case — to determine if there are any precon-
ceived notions of punishment in the event of a conviction.
[17] MR. GOAD: They can give, ask if they can
consider the full range of punishment, but I think it’s
improper for them to know at the very beginning that it
carries up to five (5) years in the penitentiary. That’s not
relevant until there’s a guilty verdict and then at that
time, under the proper instruction, they'll hear what the
range of punishment is. I think it’s wrong to tell them that
at the very beginning of the trial.
THE COURT: Then would you, would you
withdraw your objection if he simply tells this jury that
they will be told that there is a range of punishment at the
appropriate time if the Defendant is found guilty and then
let him finish out the balance of the voir dire?
MR. BAUGH: I couldn’t accept that option, Your
Honor. To tell a jury that, ask them if they're willing to
consider a full range of punishment without advising
them, is I mean, it’s pointless, it’s a charade. The jury has
to know that, if convicted, this is the range we’re looking
at.
THE COURT: Do you have case law to support
that?
25
MR. BAUGH: No, Your Honor. There is very
[18] little case law on voir dire. I am quite comfortable,
well, now by Judge Annunziata, I guess, I did bring bond
money just in case, Your Honor, I do not, the statute is
liberal. There is no way that I, I have the representatives
of the AG’s office. They’re real big on truth in sentencing. I
don’t believe that a, I would ask, I would dare the govern-
ment to tell me how can, how can a jury intelligently
answer a question can they consider the full range of .
punishment without being advised what it is? I mean, if, if
they go back there and they think this is life, they're going
to give a bad answer; if they think this is a dollar ($1.00)
fine, they're going to give a bad answer. They don’t know
and there’s no way for them to find out without informing
them and plus I have a lot of confidence in jurors. I don’t
understand what the problem would be.
If the Commonwealth would be willing to tell me what
the problem would be, perhaps I could come up with an
option, but at this time, I, I know that I’m entitled to
determine whether or not they have a bias or prejudice
concerning any issue. Punishment is an issue in our state
along witk two (2) other states and the only way to [19]
resolve it is to inform them and ask them. If you have
another way to do it, I'll be glad to consider it.
THE COURT: Mr. Commonwealth?
MR. GOAD: I wouldn’t have anything new. You
know, the purposes of a voir dire is just that they will
consider the full range of punishment and I think it’s
incorrect to tell them on the front end. That’s appropriate
for the punishment stage.
26
THE COURT: Since the Defendant is unwilling
to accept t’.e, the Court’s suggestion, I think the Com-
monwealth’s objection is well taken and the range of
punishment at the voir dire stage is not appropriate.
MR. BAUGH: Then, Your Honor, you would
place me in a conflict. Because of the ruling in Charity and
my obligation to give my client effective assistance of
counsel, I believe that if I proceed with this, he’s not
getting effective assistance of counsel and therefore I
cannot accept the Court’s ruling and, being as how Judge
Annunziata has said that’s harmless error, I must advise
my client that he should terminate my services because I
am about to enter into an effort where I know that I am
giving ineffective assistance of counsel which I am [20]
prohibited from doing by oath.
If I was guaranteed ...
THE COURT: Let me ask you something.
MR. BAUGH: Yes, sir.
THE COURT: You're saying Judge Annuziata
has said that this is harmless error. This is harmless
error?
MR. BAUGH: Judge Annunziata in Charity has
said that issues on voir dire like this are harmless error.
THE COURT: Oh. Oh. Not this particular
question?
MR. BAUGH: No. Not the particular question.
No. But I can tell you that that question was a question
that I wrote out and the Judge gave in that case. We've
27
had this objection before and we've always prevailed.
There is no case law and we've always prevailed on it. But,
Your Honor, I, that’s a charade on the jury and I, and it’s
also, I think it’s going to have tremendous negative effect
on my client. I have no case law to support it.
There is no case law. There’s less than a page of case
law under that statute in the annotations, but I would ask
the Court if, unless someone can tell me how [21] that jury
can intelligently decide what they will consider the range,
I’m not going to be a party, I can’t do that. I have to tell my
client, I'd like a moment to go outside, I think he should
terminate my services because I can’t do that.
If I knew it was going to be preserved for appeal, yes,
but in light of that ruling, the only thing I can do is either
take the contempt — and I don’t know if you built a new
jail, you’ve got a nice new building, but I don’t know if
you've got a new jail—...
THE COURT: Well, we do, just, just so you'll
know.
MR. BAUGH: Oh, thank you. I feel so much
better. Then I'll take the contempt.
THE COURT: All right.
MR. BAUGH: [I'll take the contempt. You can
punish me appropriately, but I can’t abide by that ruling.
I’m sorry, sir.
THE COURT: Well, do you want to talk to your
client? That will not cause the Court to change its ruling.
MR. BAUGH: I understand. Then, Your Honor,
I'd [22] like to take an interlocutory on this one (1). It’s so
dispositive of the issue. I want to get an interlocutory. I
want to go up on this one (1). I don’t want, I think . . .
THE COURT: What authority do you have to go
up on an interlocutory?
MR. BAUGH: Well, if we agree we can do it, we
can do it. I don’t think I can violate my oath. And if I get
out there and do it, you’re going to cite me for contempt
and I can tell you I’m going to do it.
THE COURT: Well, we'll see.
MR. BAUGH: Your Honor, I will.
THE COURT: Well, that’s fine. You know, you
have to do what you have to do, I assume, and Ill do what
I have to do to...
MR. BAUGH: That’s fine, but, Your Honor, you
understand that ifIdo...
THE COURT: To preside over this case.
MR. BAUGH: If I know I'm going to jail, even
though I don’t mind going to jail, it is going to cause
reservation and he’s not going to get the full degree of
advocacy he deserves. I would seriously suggest that the
[23] government consider withdrawing this one (1) because
we are going to consider it. The jury is going to know, if the
jury is going to consider the full range, they're going to
know up front.
THE COURT: We will recess — I need the ap-
proval of the Defendant to, to go off the record, but we'll
recess the hearing and let each of you go to a place where
you can discuss your position with your client, Mr. Baugh
MR. BAUGH: Yes, sir.
THE COURT: And the Commonwealth can
consider its position.
MR. GOAD: Yes, sir.
THE COURT: And I will give you approximately
ten (10) minutes to do this and then come back.
MR. BAUGH: Thank you, sir.
THE COURT STANDS IN RECESS
THE COURT: All right. The Commonwealth
have anything he would like to talk to defense counsel
about? Do you have any resolution that you want to
propose?
MR. GOAD: Yes, sir. I do.
THE COURT: Do you want to do it on the record
or do you want to do it in privacy between you and counsel
or how do you want to do it?
MR. GOAD: [I'l just do it on the record.
THE COURT: All right. Very well.
MR. GOAD: Judge, while in recess, I've recon-
sidered my objection to the voir dire issue about the
punishment and I’m willing to amend my objection to
where it’s okay for the jury in the voir dire to be advised of
the range of punishment, but I want the Court to advise
the jury of the range of the punishment as opposed to
counsel.
MR. BAUGH: No objection as long as we do it.
30
THE COURT: All right. I guess we have an
instruction in here that tells us it’s, let me...
MR. BAUGH: All that great error gone to waste.
THE COURT: All right. And that range is, let’s
see, one (1) to five (5) years in the Department of Correc-
tions cr confinement in jail for a specific time but not more
than twelve (12) months. I tell you what I'll do, I'll just . . .
[25] MR. GOAD: I've got extra copies if you want
to pull that out.
; THE COURT: [I'l just put a clip on it and I can
go to it rather than try to, all right. That apparently is
resolved, so we'll go to...
MR. HURD: Judge, if I may add one (1) com-
ment about it, as a result of our discussions, it will be
helpful perhaps if the, if the lower end of the range was
made doubly clear to the jury. A layman coming in hears
“in jail up to twelve (12) months” he’s going to focus on the
twelve (12) months and not, not realize perhaps that it
could be one (1) day to twelve (12) months.
MR. BAUGH: I don’t mind telling the jury that.
That’s what I always do. I tell them it’s from as little as
one (1) day or one dollar ($1.00) fine up to five (5) years.
I’ve done this before. If you want me to do it, I'll be glad to.
THE COURT: Im basically going to paraphrase
the instruction that I will give if we get to the penalty
stage and you're entitled to elaborate on it, if you wish.
MR. BAUGH: Thank you, sir.
THE COURT: All right. Next? Now, let me say
[26] something so we can move this along. Anything that’s
31
in these proposed questions by Mr. Baugh that goes to bias
or prejudice, I’m going to approve. I think that that’s the
whole purpose of the voir dire and I'm going to permit it.
So with that in mind, let’s go forward with the, with the
balance of these objections.
Let’s see. On Page 1 of Mr. Baugh’s letter, there’s a
partial objection?
MR. BAUGH: Oh, yes. Let’s see. The question,
the topic is whether the panel member had, “based upon
the facts obtained either from the media or elsewhere,
expressed any opinion as to the guilt or innocence of the
Defendant or the outcome which should be had, either due
to the Defendant’s actions or due to his membership in the
Ku Klux Klan”.
Your Honor, I would submit that the second part that
the Commonwealth has objected to “or [to] the outcome
which should be had, either due to the Defendant’s actions
or due to his membership in the Ku Klux Klan”, I believe
that it is obvious that my client is a member of the Ku
Klux Klan. I believe there are biases and prejudices held
by many people both for and against that organization and
[27] his association with that organization and for that
reason and the fact that the Klan name is going to be in
there, I believe that that is a proper area in which bias or
prejudice could occur and for that reason, it is subject to
voir dire.
THE COURT: Mr. Commonwealth?
MR. GOAD: Judge, I think the first part of it
sufficiently addresses the issue of bias or prejudice of the
Defendant and I think the last half of it, as I indicated,
would, you know, go too far in that area.
32
MR. BAUGH: Oh, I understand. Forgive me.
May I speak, Your Honor? My concern is this, is that when
talking with people about this case, some people are of the
impression that because of the nature of the offense or
because of the nature of the organization, that anyone who
belongs to that organization be convicted or anyone who
belongs to that organization should be more severely
punished than someone who doesn’t. The only way to cut
off that prejudice is to ask them whether or not they’ve
discussed what should happen if a member of the Klan is
convicted of a crime.
THE COURT: All right. I’m going to overrule
[28] the objection. I think that we want a jury that will not
convict this individual by association and I think he’s
entitled to, to go into that. I’m going to, he should be tried
on what he did and not the organization he belongs to.
What's next?
MR. BAUGH: The next question objected to is
whether the panel member “has heard, either directed to
[the] panel member or overheard by [the] panel member,
any suggested dispositions for the offense alleged against
the Defendant”. In the Mu’min case, M-U-apostrophe-M-I-
N, the Supreme Court has said we cannot discuss the
information that has been communicated, but there has
been no bar against the result or suggested, we are not
allowed to say what did you read or what did you hear, but
— and I'm not going to ask that ~ but if someone has said
that I believe someone, actually it is, it sort of goes into
the question above it, and in a sense of fair play, I'll
withdraw it.
THE COURT: O. KO. K. So the whc'e, we don’t
have to address the three (3) items at the top of Page 2?
33
MR. BAUGH: Yes. I think, unfortunately, well, I
can tell you that, I don’t want to lowball you, Judge. [29]
I’m, those areas will be incorporated in this, the one (1)
you’ve said is not a, where I’ve already, you’ve already
ruled on it. I mean, what outcome should be had either
due to the Defendant’s actions or due to his membership
and those issues are going to be incorporated in that.
That’s going to happen.
THE COURT: I don’t understand your point.
MR. BAUGH: What I'm saying is that, what I’m
saying, Your Honor, is that the second issue, the second
question and the third one (1) with its subparts are really
one (1) question and so I was going to surrender the third
question, but I can tell you that when doing the first one
(1), those issues are going to come up — what was the
suggested disposition, did they have, did they ever make 4
comment about what should happen in this case, things
like that. If I get answers saying that they’ve obtained,
they have an opinion as to the guilt or innocence and they
have an opinion as to what the punishment should be, I
think I have to ask them what it was. I mean, they're
going to want to know, too.
THE COURT: Let me tell you, let me tell you
what we're going to do. If that occurs, if we get to that (30)
point...
MR. BAUGH: Where someone says...
THE COURT: That, yes, they’ve talked about it
MR. BAUGH: All right.
34
. THE COURT: Then we're going to stop the
inquiry with that particular juror at that point, we'll, and
at some point, we’ll call that juror in by, by the juror, by
himself or whatever . . .
MR. BAUGH: For individual...
THE COURT: Individually.
MR. BAUGH: O. K. That’s fine.
THE COURT: And then we can go into what
they've heard and whether or not they’ve formed an
opinion, basically, and, and decide whether or not that
juror is qualified.
MR. BAUGH: All right. That’s fine.
THE COURT: And that’s what I want on the,
when we have the twenty (20) people out there, if there’s
an answer that, that indicates that we need to go further
into an inquiry with that particular juror, I don’t want to
contaminate another group.
[31] MR. BAUGH: That’s fine.
THE COURT: Ill call them back. But, and
obviously we'll, we'll pretty well know which ones you'll
want to call back and I'll give you that opportunity at some
point if it looks like we need to bring, to bring a juror in
just to make further inquiry.
MR. BAUGH: I think that’s a much better
procedure. I agree. |
THE COURT: All right.
MR. BAUGH: The other ones, the remainder of
them, some of them are not couched in terms of a question
35
because I, as I told you, these are areas about which I will
discuss. I can tell you, for example, in the first one (1), I
will ask the jury that, if any of them have disagreement
with the presumption of innocence which means that
when we begin a trial in the United States, a Defendant is
presumed not to have done the offense and until such time
as the government convinces them of it, does anybody
disagree with that law, anybody see the Defendant as
anything less than innocent. That’s the . . .
THE COURT: I understand that.
MR. BAUGH: Yes, sir.
[32] THE COURT: All right. It looks like Page 2
with the, we’ve worked out the balance of Page 2.
MR. BAUGH: I should have numbered these.
I’m sorry.
THE COURT: Now, Page 3.
MR. BAUGH: I believe you're ruled on that one
(1). Didn’t you say as long as it’s couched in terms of bias
or prejudice, all of these are bias and prejudice questions,
the ones to which the government has objected.
MR. GOAD: Well, the first one (1) goes further,
the first one (1) that I objected to...
THE COURT: Uh-huh.
MR. GOAD: On Page 3, goes further than the
bias or prejudice. Then it goes forward to ask do they
think a member of the Klan “has a predisposition to
commit certain types of crime[s]”. I think that goes beyond
the general bias or prejudice.
36
MR. BAUGH: It has been my experience, Your
Honor, if I might, that there are certain groups of people —
and I’ve never had this one (1), but similar ones, but this is
my first Klan case — but I have had situations where, say,
drug defendants are Jamaican nationals or from [33] New
York or I'm in a sodomy case and my client is an admitted
homosexual. There are people who believe that certain
people — because of who they are or because of they’re
from, the place from which they come — are more likely to
commit a crime than someone else. It’s the, it’s flat-out
prejudice and I believe that, it’s my belief that there is,
that the Ku Klux Klan is associated with certain types of
behavior and I will, and the jury has to understand that,
as you pointed out a moment ago, he’s not to be tried for
his association. He’s to be tried as an individual for his
actions on that date.
THE COURT: I agree. I think that he’s, we need
to know whether or not the, the mention of the Klan
effects the disposition of this case and if one (1) has pre-
conceived notions, then they shouldn’t be serving — one (1)
way or the other.
MR. BAUGH: Yes, sir. One (1) way or the other.
THE COURT: They may have sympathies the
other way and think that the Klan...
MR. BAUGH: As is their right.
THE COURT: All right. Next. All of these, and I
think they are, I’m going to let that be investigated by [34]
the Defendant.
MR. GOAD: The one (1) that says “send a
message” in it?
37
THE COURT: Now, that one (1). Let me look at
this one (1).
MR. BAUGH: Let me see. Which one (1) is that?
Oh, yes.
MR. GOAD: Second from the bottom.
MR. BAUGH: What is the “send a message”?
Buck vs. Commonwealth, isn’t it? The “send a message” is,
the “send a message” argument on behalf of the Common-
wealth is improper, according to Buck vs. Commonwealth.
It’s a Richmond case. About, what, seven (7) years? I
believe you were in the office then when that was argued,
about Steve Buck was the lawyer, in fact, and being as
how the government is not allowed to argue the “send a
message” argument, I can only assume that the inverse,
that it is improper for the jury to “send a message” and
that their guilt or deliberations are to be based upon his
actions solely.
So relying on an inference from Buck, I would argue
this is a proper question.
[35] MR. McLEES: I think that sentencing is
always, that the deterrence of crime specifically and in
general in the community is always an appropriate con-
sideration in sentencing.
MR. BAUGH: [I'l rely on Buck.
MR. McLEES: They can’t find him guilty in
order to send a message, but they certainly can sentence
him in order to send a message.
38
MR. BAUGH: If the Court would like to view the
case, Buck was a sentencing issue. It was before we had
bifurcated trials, but I believe...
MR. McLEES: Well, that’s the, that’s the .. .
MR. BAUGH: He said we need to send a mes-
sage with our, with the punishment. _
MR. McLEES: The Commonwealth can’t argue
that in general in trying to convince the jury to find a man
guilty because, of course, by finding an innocent man
guilty, you don’t send the right message anyhow. Once the
man is found guilty and they're determining penalty,
sending, the consideration of sending a message to others
who might be tempted to commit the same crime is a, is
imminently a proper part of sentencing.
[36] MR. BAUGH: If I may, Your Honor, I would
point out that if my client as an individual is, should be
punished with a one (1) year sentence, to give him a more
severe punishment to send a message to other people for
conduct he did not commit is equally violative of his rights.
He is to be...
THE COURT: Aren’t we already asking this jury
if they're willing to consider the entire range of punish-
ment?
MR. BAUGH: Well, I am concerned, Your Honor,
and I don’t think it’s served by that because I, it is impor-
tant that a jury knows that they are to convict him based
on his conduct or acquit him based on his conduct and if he
is to be sentenced, he is to be sentenced upon his conduct
and his conduct alone, not to, to influence other people.
He’s not a scapegoat. He’s not an effigy to be punished as
an example. He’s to be punished based upon his conduct.
39
MR. McLEES: Your Honor, they certainly can
consider the necessity of impressing on other like-minded
people that they shouldn’t commit the same kind of deed
and take that into consideration in fixing the punishment.
[37] THE COURT: I believe the Common-
wealth’s motion is well taken on this question. I’m going to
sustain the objection.
MR. BAUGH: To which, of course, I will object.
THE COURT: Yes.
MR. GOAD: And then the next one (1) that
starts at the bottom and goes to the top is clearly outside
bias or prejudice if it’s put the county in a negative light or
positive image of the community.
MR. BAUGH: I thought that was a brilliantly
drafted questior .
THE COURT: Any further comments?
MR. BAUGH: The question for my client is, “if
[any] members of the panel have a bias or prejudice that
the alleged activities of the Defendant or the Ku Klux
Klan are such that the image of the city or county [)s]
been cast in a negative light [and], if so, would a convic: 1
or imprisonment of the Defendant be a likely method [for]
maintaining a positive image of the community”.
Your Honor, I think that we would be remiss if we did
not say that because of the, I mean, this is the [38] first
case I’ve had that’s been reported in the BBC. There is and
there will be a tremendous amount of pressure on these
jurors because of the nature of the offense and the publicity.
40
There is, in all likelihood, the verdict that comes out of
this jury today — and everyone knows it — will be on the
front, it will be in international news and some on the
front page. I mean, MS-NBC has already called and asked
us to be on the news tonight regardless of the verdict. By
the way, we said no.
To assume that the negative light issue is not an issue
is disingenuous.
MR. GOAD: Of course, that comes after the
verdict is over. You know, we're talking about bringing it at
the, when we voir dire the jury. What he’s saying about the
international news and all that, yeah, that was previously,
but since the Court’s ruling on the constitutional issue,
there’s been very little publicity about this case. Neither of
the local newspapers — the Carroll News or the Gazette —
has any article about today’s trial taking place, I don’t
believe. There’s been very little publicity since the Court's
ruling on the constitutional question. You know, so today
we don’t have [39] it too much, but afterwards certainly we
will.
MR. BAUGH: I should tell the Court that I did
te)i MS-NBC that if Soledad O’Brian was going to do the
interview, I might appear.
THE COURT: Uh-huh.
MR. BAUGH: But based on the Court’s ruling on
that one (1), you’re going to have to, it’s going to be a
similar ruling to the next one (1).
THE COURT: Im reviewing those now to see if
41
MR. BAUGH: It is a package. In the interest of
time, Your Honor, if you will, if the Commonwealth will
permit me to have the question which is the first complete
question on Page 4 — “if members . . . have a bias or preju-
dice which compels their feeling personally embarrassed
that this activity occurred in their neighborhood or juris-
diction” — 1 think I can knock out the one (1) before and
the one (1) afterwards in the interest of time.
THE COURT: Whether they agree to it or not, I
will rule that that’s fine.
MR. BAUGH: Thank you.
[40] THE COURT: We will go with, let you ask
one (1). Now, that will, so I've sustained the before and
after.
MR. GOAD: The one (1) that starts on Page 3
and goes to Page 4 you've sustained?
MR. BAUGH: Yes.
THE COURT: Yes.
MR. GOAD: And the second one (1) on Page 4
you've allowed?
THE COURT: Yes. You know, you can save your
objection if you wish. All right. With, now, we're down to
“Will a verdict of not guilty reflect disfavorably on Carroll
County?”
MR. BAUGH: My concern there is that, as the
Court is well aware, there are members of the community
who are not going to serve on the jury and one (1) of the
issues we do need to bring up is whether the jury has
42
contemplated whether or not when they go back in the
jury room, they're going to make a, come up with a verdict
that’s going to make their neighbors happy and that
happens in all cases. Only by, and I would couch it in
terms of bias or prejudice, but I think it’s important to [41]
my client’s rights that if we, we determine whether there
‘@ #1 influence in the panel to determine a verdict which
wiil allow them to go home and speak to their neighbors or
get a decent meal from their wife or husband.
THE COURT: Mr. Commonwealth?
MR. GOAD: I think that’s beyond the proper
voir dire. I think that’s inviting them to argue.
THE COURT: I agree with the Commonwealth.
We want to know their own biases and prejudices and
whether they can sit on this jury and give, give the Defen-
dant a fair trial. I feel like that the objection is well taken.
MR. BAUGH: Well, then, Your Honor, we would
object to the Court’s ruling because none of the questions
that are proposed deal with the ever present influence of
local public opinion which is always an issue in a case like
this, local public opinion and the fear of being ridiculed
like the O. J. Simpson jurors is a factor. When you talk to
jurors, they do worry about that and this is the only
question that addresses that issue.
And so I will couch my objection in terms of my client
does have a right to, under Article I, Section 8 of the
Virginia Constitution, to a fair and impartial jury [42] that
is free from unreasonable influences and prejudices. I
believe that until such time the record reflects that there
is, there is no likelihood of jurors feeling pressured by
their neighbors to come up with a given verdict, the only
43
way to raise that is with this question, until such time as
the record is clear of that issue, my client is being denied
of his right under Article I, Section 8 or he’s being denied,
denied the right to his right to counsel under Article I,
Section 8 and the Sixth Amendment, his effective use of
counsel because without that information, Ill be, I'm
making strikes in the dark. So we preserve our constitu-
tional issues.
THE COURT: All right.
MR. GOAD: The one (1) just up above that is
similar. I don’t believe we addressed that one (1) yet.
Where at the end, it says a verdict of not guilty would
reflect that “activities of the ... Klan are endorsed by the
citizens of Carroll County”.
THE COURT: Buthe...
MR. BAUGH: That’s already been struck.
THE COURT: He agreed to struck that if I
would let him go with the question above.
[43] MR. GOAD: O.K. All right.
MR. BAUGH: But if the Commonwealth is
offering us a substitute, that I should take that one (1) and
lose the one (1) before it, in a sense of cooperation, I’m
willing to do that.
MR. GOAD: No. I like the one (1) up above it.
MR. BAUGH: Because I believe it does, I believe
it is a valid issue that Ku Klux Klan activities are en-
dorsed and I would willingly give up the next one (1)
because it covers the same topic.
44
THE COURT: All right. What about the, the
remaining? The next objection — “Are there any jurors who
would change their »ote concerning guilt or punishment, if
guilt is the verdict, because they were in the majority and
not because they agreed with the fellow jurors?”
MR. BAUGH: That should be minority. I was
tired. Whether or not they would change their verdict
because they were in the minority.
The Defendant is entitled to twelve (12) jurors, not
eleven (11) speaking for twelve (12). The only way to
address that issue is to bring it up on voir dire — that it is
not majority rule. It must be unanimous in every [44] one’s
verdict, everyone's conscious must be voted.
THE COURT: The basis of the Commonwealth's
objection is what?
MR. GOAD: It’s inviting the jury to argue and
disagree.
MR. BAUGH: We'll stipulate that’s a good thing.
THE COURT: I agree. I agree with the Com-
monwealth. I believe the jury will follow the Court’s
instructions and I think that that’s argumentative and it
doesn’t help you determine whether or not there’s any bias
or prejudice.
. MR. BAUGH: We would re-urge the same
objections, the Constitutional objection, as the one (1)
previous.
THE COURT: All right, sir.
MR. BAUGH: The government had objected to
the last two (2).
45
THE COURT: I guess it’s the same, the same
basis, isn’t it, as the one (1) I just ruled on?
MR. BAUGH: Yes. I would agree, Your Honor.
THE COURT: O. K. Im going to sustain that
objection and each of you, I guess, disagree for reasons [45)
previously stated. Is that a fair statement?
MR. BAUGH: On behalf of the Defendant Black,
that’s correct, Your Honor.
MR. GOAD: Yes, sir
THE COURT: And I feel the same way about the
last question. I’m going to sustain the objection.
MR. BAUGH: I thought you had. Yes. We would
have the same objection, Your Honor.
THE COURT: All right. I believe that does it,
doesn’t it, folks? :
MR. BAUGH: That’s it.
THE COURT: If we're ready to go, anybody need
a break before we go and impanel the jury?
MR. BAUGH: If I could, and I know the gov-
ernment doesn’t have to, but can the government give me
an estimate of how many witnesses they have just so I can
figure out whether or not we need hotel rooms for the
night?
MR. GOAD: Sure. I'll be glad to and then you
tell us, too
MR. BAUGH: Sure.
MR. GOAD: Three (3).
46
[46] MR. BAUGH: Zero.
MR. GOAD: O. K. We'll be here one (1) day. I do
have a couple of short matters for the record.
THE COURT: Aill right.
MR. GOAD: Judge, previously, I filed the notice
of prior criminal convictions pursuant to § 19.2-295.1. I did
file those in a timely matter, in a timely manner and
according to the Code section, before the beginning of trial,
I'm to provide defense counsel with a copy of those and I
have complied with that provision.
MR. BAUGH: That's correct, Your Honor. It has
been tendered. I will tell the Court that I have not had a
chance to go over it with my client as yet and also there’s a
question because one (1) of them appears, there appears to
be a vacation order somewhere of one (1) of these, I don’t
know which one (1). None of these, some of these don’t
even show up on the NCIC computer check and I don’t
even know how you found all of them.
We would object, all of them are extremely stale. I
don’t believe there are any past 1972?
MR. GOAD: There’s a 74 and I think one (1)
was '79. I'd have to go back and look, but it’s all ’70’s at
[47] the earliest.
MR. BAUGH: My only other concern would be
the information tendered, there’s one (1) sheet that shows
a conviction, of course, they're entitled to that. The other
sheet shows the punishment given for those offense and
we would submit that’s improper, that the jury did not, I
mean, while I am entitled to notice, I do not believe that
goes to the jury. The jury is told the number of offense and
47
I believe you're entitled to tell them the offenses for which
the Defendant has been convicted, but as to what punish-
ment might have been meted out, I would submit that it
would be improper.
MR. GOAD: Well, we can go over that later.
THE COURT: All right. As long as we're, there
is compliance and I agree that there may be some discus-
sion later with regard to the total admissibility, but we'll
go over that later, defer that until a later time.
MR. BAUGH: Yes, sir.
MR. GOAD: And, of course, previously the Court
met Mr. John McLees and Bill Hurd from the Attorney
General's office and previously there’s been no objection
[48] to them being here and working on the case and I’m
assuming that still stands today?
MR. BAUGH: That’s correct. It does.
THE COURT: All right. Are all three (3) of you
going to sit at counsel tables?
MR. BAUGH: Or close by.
MR. GOAD: Or close by.
THE COURT: Well, do I need to, who do I
introduce? That’s all I need to know.
MR. BAUGH: All of them?
THE COURT: Just yourself or all of them?
MR. GOAD: Yes, sir. Unless you all want to be.
Just me then, I guess.
48
THE COURT: Just you. All right. They're going
to sit in the background. If they’re going to sit at the table,
I'm going to introduce them. If they're going to sit close,
then...
MR. GOAD: O. K. Mr. McLees will be at the
table next to me.
MR. McLEES: I guess he should introduce me
then.
THE COURT: I think I should.
[49] MR. McLEES: Yes, sir.
MR. BAUGH: And Id ask you to introduce...
THE COURT: Sara Davis, is it?
MS. DAVIS: Yes, sir.
MR. BAUGH: Sara G. Davis. Her mother wants
that G thrown in there.
MS. DAVIS: You can leave the G out.
THE COURT: All right. Unless you need a litile
recess, we'll go get started.
MR. BAUGH: Two (2) or three (3) minutes
please, sir.
THE COURT: All right.
MR. BAUGH: Oh, and the Defendant is waiving
his right to be present at any bench conferences.
THE COURT: All right.
49
MR. BAUGH: Thank you, sir.
THE COURT: Thank you.
* * *
IN THE COURTROOM - IN OPEN COURT
[50] BAILIFF: Circuit Court for Carroll County
is now in session, the Honorable Judge Duane E. Mink
presiding. Silence is commanded while Court is in session.
Be seated and come to order.
THE COURT: All right. Mr. Goad and Mr.
Baugh, would you come forward and let me ask you a
question?
* * *
CONFERENCE AT THE COURT'S BENCH
THE COURT: Sometimes we just call the jury
taking the first twenty (20) names on the list and that
might be the easiest way to do it today. Do you have any
objection to that or do you want us to put the names in
and do it by lot?
MR. GOAD: Whichever.
MR. BAUGH: I have no objection.
THE COURT: Then we're just going to take the
first twenty (20).
MR. BAUGH: I have a question. Do we question
from the table or do you want us to stand?
[51] THE COURT: Whatever you’re comfortable
with. I want you to be, I want everybody to be comfortable
in my court.
50
MR. BAUGH: Thank you. All right.
THE COURT: If you feel comfortable sitting,
fine; if you want to go back and forth, you can do that.
MR. BAUGH: Thank you, sir.
THE COURT: All right, sir.
* ~ x
THE COURT: All right. The case on the docket
for today is Commonwealth of Virginia versus Barry Elton
Black. Both parties have announced ready and we’re now
calling the jury that’s awaiting on the first floor. Bring in
the first twenty (20) and if they will stop in the back and
we'll call their names as they come forward.
MR. GOAD: As far as the seating of the jury,
will they start on the back row?
THE COURT: Start here and we'll take, we have
seven (7) chairs here now, don’t we?
THE CLERK: Yes, sir.
(52) THE COURT: The first seven (7),- the
second seven (7) and then we'll go up this wall over here.
* * *
[At this time, an initial panel of twenty (20) jurors
was called to the courtroom and examined on voir dire by
the Court, Mr. Goad and Mr. Baugh. There was individual
voir dire of jury panel members as requested. Of that
initial panel of twenty (20) jurors, three (3) jurors were
challenged for cause by the Defendant and were excused
by the Court. Subsequently, seventeen (17) members of the
first panel were seated as the venire.
51
A second panel of five (5) jurors was called to the
courtroom and examined on voir dire by the Court, Mr.
Goad and Mr. Baugh. The first three (3) names that were
called of the second panel were free from challenge and
were seated to complete the venire of twenty (20) mem-
bers, free from objection.
The Court stood in recess at that time in order for
both parties to review the panel members.
While the list was passed between the parties, [53] the
Court read the following preliminary and cautionary
instructions to the jury.]
* * *
THE COURT: Members of the jury, at this point,
the attorneys are going through the process of striking the
jurors. All twenty (20) of you have been found free from
objection and qualified to sit on the trial of this case.
However, under the laws of the Commonwealth of Vir-
ginia, each of these parties will have to strike four (4)
names apiece. So twelve (12) of you will end up trying the
case. We don’t know which twelve (12) that will be, so at
this point I’m going to read you the preliminary cautionary
instructions which will advise you how the case will
proceed and since we don’t know which twelve (12) will try
it, I request that all of you attend to the reading of these
instructions.
The case will proceed in the following order. First, the
Commonwealth Attorney may make an opening statement
outlining his case. The Defendant may also make an
opening statement outlining his case immediately after
[54] the Commonwealth Attorney's statement. Neither the
52
Commonwealth Attorney nor the Defendant is required to
make an opening statement.
Second, the Commonwealth Attorney will first intro-
duce evidence. At the conclusion of the Commonwealth
Attorney's evidence, the Defendant has the right to intro-
duce evidence. Thereafter rebuttal evidence may be
introduced.
Third, at the conclusion of all the evidence, further
instructions will be given you, after which the attorneys
may make their closing arguments. Then you will retire to
select a foreman, deliberate and arrive at your verdict as
to the guilt or innocence of the accused.
Faithful performance by you of your duties is vital to
the administration of justice. You must not be influenced
in any degree by any personal feeling of sympathy for or
prejudice against any party to this suit for each party is
entitled to the same fair and impartial consideration.
The law applicable to this suit is given to you in these
instructions and in those other instructions that you will
receive at the close of all of the evidence and [55] it is your
duty to follow all such instructions. It is your duty to
determine the facts and to determine them from the
evidence and the reasonable inferences arising from such
evidence and in so doing, you must not indulge in guess-
work or speculation.
The evidence which you are to consider consists of the
testimony of witnesses and the exhibits admitted in
evidence. The admission of evidence in court is governed
by rules of law. From time to time, it may be the duty of
the attorneys to make objections and my duty as Judge to
rule on those objections and whether you can consider
53
certain evidence. You must not concern yourself with the
objections or the Court’s reasons for these rulings. You
must not consider testimony or exhibits to which an
objection was sustained or which has been ordered
stricken.
Opening statemexts and closing arguments of the
attorneys are intended to help you in understanding the
evidence and applying the law, but they are not evidence.
No statement or ruling or remark which I may make
during the course of the trial is intended to indicate my
op aion as to what the facts are. You are to [56] determine
the facts. In this determination, you alone must decide
upon the believability of the evidence and its weight and
value. In considering the weight and value of the testi-
mony of any witness, you may take into consideration the
appearance, attitude and behavior of the witness, the
interest of the witness in the outcome of the suit, the
relation of the witness to any parties to the suit, the
inclination of the witness to speak truthfully or not, the
probability or improbability of the witness’ statements and
all other facts and circumstances in evidence. Thus, you
may give the testimony of any witness just such weight
and value as you may determine the testimony of such
witness is entitled to receive.
Until this case is submitted to you for your delibera-
tion, you must not discuss this case with anyone nor
remain within hearing of anyone who is discussing it. To
avoid the possible appearance of impropriety, I strongly
urge and suggest to you that until the trial is concluded,
you shall not converse at all with anyone connected with
the trial as a party, witness, or attorney.
54
After this case has been submitted to you, you must
discuss this case only in the jury room when all [57]
members of the jury are present. You are to keep an open
mind and you shall not decide any issue in this case until
the case is submitted to you for your deliberations under
the further instructions of the Court.
Now, that concludes the reading of the cautionary and
preliminary instructions. We'll await the striking of the
jury.
* * *
[In open court in the presence of the jury panel, both
sides struck four (4) members each and a panel of twelve
(12) jurors was chosen to hear the case. Those jurors were
as follows: Sharon Beasley; Angela Bowman; Sherry Dawn
Burnette; Doris Gardner; Donna F. Maldonado; Gary
Lyons; Rayborn E. Lyon; James Lowe; Vander Kirkland;
Dannie Wayne Martin; Rena H. McAlexander; and Cheryle
D. McCraw. They were charged by the Clerk as follows:
You shall well and truly try the issues joined between the
Commonwealth of Virginia, Plaintiff, and Barry Elton
Black, Defendant, and a true verdict give according to the
evidence, so help you God? To which the entire [58] panel
indicated an affirmative response.) .
* * *
THE COURT: Members of the jury, at this point,
it is approximately a quarter of twelve (12:00) and we’ve
decided, rather than begin the actual trial of the case
which is the opening statements of the attorneys and then
the evidence that may be presented with regard to these
charges, that we would break for lunch. I'll ask you to
55
return at a quarter of one (1:00) and we'll try to get started
on time.
While you're out, don’t discuss the case with anyone.
Do not remain within hearing of anyone discussing the
case. When you return to the, to the courthouse, if you
would come to the, I guess they better come to this room
first, come to the courtroom and then we will, the Bailiff
will be here to take you back to the jury room and we'll ask
you to stay there until the case is ready to be called.
Yes, sir?
‘MR. BAUGH: Your Honor, would you please
inform [59] the jurors that if we see them in the street, Mr.
Goad and his attorneys or mine, if we don’t speak to them,
we're not being rude, but we’re not allowed to.
THE COURT: That’s exactly right and I couldn’t
say it any better. We have to, we have to avoid the appear-
ance of impropriety and you might be talking about the
weather, but others may not believe that. So if you see us
on the street, we’re not stuck up and we're glad you're here
today. We'll now excuse you until...
THE CLERK: Excuse me, Your Honor, but
they'll need to wear their badges.
THE COURT: Right. And we'll see you at a
quarter of one (1:00).
THE COURT STANDS IN RECESS FOR LUNCH
THE COURT: All right. Both parties ready to
begin?
MR. BAUGH: The defense is ready, Your Honor.
56
THE COURT: Thank you. Commonwealth
ready?
MR. GOAD: Yes. I'd make a motion to sequester
the witness.
(60) THE COURT: Bring in the jury.
MR. GOAD: I would have a motion to sequester
the witness.
THE COURT: All right. I’m a little bit surprised
because they’re your witnesses, but you're entitled to...
MR. BAUGH: I was going to make the motion
anyway.
THE COURT: O. K Anyone going to testify,
come forward please. Anyone that’s called as a witness in
the case, come forward.
MR. GOAD: No witnesses for the defense?
MR. BAUGH: No.
THE COURT: We will, we'll do the oaths indi-
vidually when the jury's present. While you’re out, don’t
discuss your testimony with anyone and we'll call you as
we need you. If you'll wait in the back, theyll show you
one (1) of the witness rooms where you can wait until
youre called.
(All witnesses in the case are excluded from the
courtroom and from the hearing of any of the matters (61)
therein.)
57
THE JURY RETURNS TO THE COURTROOM
THE COURT: We've got an extra seat. That’s
why it looks like we’re missing somebody. All twelve (12)
members have returned. You may begin with your opening
statement.
MR. GOAD: Thank you, Judge.
a * *
OPENING STATEMENT BY MR. GOAD:
Good afternoon, ladies and gentlemen. As you know
from this morning, my name is Greg Goad. I'm the Com-
monwealth’s Attorney for Carroll County and I’m here
today to prosecute the case of the Commonwealth versus
Barry Black. John McLees is here also with me to work on
the case.
The evidence as was mentioned to you earlier today is
going to be short, so with the short evidence and [62] the
short case that calls for a short opening statement by
myself. Now, after I speak, Mr. Baugh will give his opening
remarks and then we'll proceed on with the testimony.
ll have three (3) or four (4) witnesses to present to
you in this case. The first witness will be Sheriff Warren
Manning. He'll testify that on the date of August 22nd,
that he was employed as the Sheriff of Carroll County and
that evening when he returned to his home in Woodlawn,
he received notification that there was a Ku Klux Klan
gathering in the Cana section of our county. He then
notified First Sergeant Rick Clark and other deputies and
then went down to Cana to see where the gathering was
taking place at.
58
Upon his arrival, he saw on the road or next to the
road, excuse me, a four (4) by eight (8) foot sheet of ply-
board that said KKK Meeting and then you could also see
individuals in a field. Now, as I mentioned, this is in the
Cana section in the county where the terrain is more flat
than it is up here in this section of the county. He re-
mained at the scene along with Investigator Clark and
also other deputies, talked to some of the individuals [63]
that were having the gathering and then proceeded to stay
and observe what was happening.
Now, Roger and Rebecca Sechrist, they lived next to
the tract of land where the rally was taking place at. Now,
Sheriff Manning will testify that as he stayed there at the
scene, along with Investigator Clark, that eventually, as
the time went on, that there had been a cross erected on
this property and the testimony will be that this cross was
approximately twenty-five (25) to thirty (30) feet tall,
clearly visible from the public road and also within the
area of approximately ten (10) homes.
As they were there making sure that nothing oc-
curred, then as the Klan gathering continued, at this
point, they’re in white robes and hats, then as part of their
ceremony then the cross was burned and it glowed out
over the whole area where these homes were at and both
Sergeant Clark and Sheriff Manning saw the burning of
the cross. Upon doing that, they checked with the dis-
patcher on exactly what the cross burning statute is in
Virginia.
After that, they proceeded onto the property and
asked who was responsible for the gathering. The [64]
Defendant, Barry Black, came forward and said that he
was leader of the gathering and that he was responsible
59
for the burning of the cross. He was then placed under
arrest for violating the statute here in Virginia and Inves-
tigator Clark then placed him in his vehicle for a trip to
Hillsville to see the magistrate.
Once they were in the vehicle and proceeding to the
county jail, Mr. Black began a conversation with Investi-
gator Clark and one (1) of the comments that was stated
“when is the white man going to stand up to the blacks
and the Mexicans in this neighborhood” and he further
went on to say that he had heard that the blacks and
whites were holding hands and walking down the side-
walk in that area.
Well, Investigator Clark told him that there were not
any sidewalks in Cana, Virginia and Mr. Black said that
he had been mislead. And they brought him on up to the
jail and he was processed and then he later, we proceeded
on with the case we’re here today on.
Now, Rebecca Sechrist and possibly Roger Sechrist
will testify that they are neighbors that own the property
adjacent to the rally, as I mentioned to you [65] before, and
she will tell you and possibly Roger about how the effect of
this Klan rally and the burning of the cross hed on them.
At the conclusion of the case, I’m confident that you'll
see that we have proved beyond a reasonable doubt that
Mr. Black burned the cross with the intent to intimidate.
Thank you.
* * *
THE COURT: Mr. Baugh?
MR. BAUGH: Thank you, Your Honor.
* * *
ani. a
60
OPENING STATEMENT BY MR. BAUGH:
May it please the Court, counsel. It’s not illegal to
burn a cross in Virginia. It’s illegal to burn a cross with the
intent to intimidate others, to place them in fear of imme-
diate or imminent serious bodily injury or death. There is
the difference. I want to [66] point out first, however, that
every person, if any citizen doesn’t like something in our
nation, if you don’t like blacks and whites holding hands, if
you despise Rush Limbaugh, that’s my personal favorite,
you have a right to say it. You have a right to express it.
You can’t say it in a way that makes other people think
they're going to be hurt, but you have the right to say it.
The fact that the government comes in here and says
that this man told a deputy that he doesn’t think blacks
and whites should hold hands, that’s his right. If he
doesn’t want to hold my hand, I don’t care. that’s [sic] his
right because he’s a citizen.
One (1), they also didn’t tell you that in addition to
Mr. Black being down here, there was a sign up telling
people that there was a Klan rally and that it was private
and that outsiders would not be tolerated. You couldn't
come in. It wasn’t open to just anybody, so it was a warn-
Additionally, I want to agree with something counsel
has said — the cross was burned and I believe he said as
part of their ceremony and that was why it was burned —
not to intimidate others, not to make other [67] people
think they were going to be jumped and beaten but be-
cause, for whatever reason, it is part of their ceremony
and that was the reason. And if you believe what Mr. Goad
said, then it’s going to be a real short trial.
61
Now, Mr. Goad has said that he has witnesses who
will testify about the effect of the c:oss burning on them.
You will hear the Judge tell you that the key here is his
intent. If he did not intend to communicate a threat of
imminent bodily injury, if other people feel threatened,
that doesn’t matter under our law. It is his intent that
makes it a crime. If someone comes along who is very
susceptible or very frightened, that is not a criteria. That
is irrelevant.
The only issue is when he burned that cross or the
cross was burned — now, I’m not even going to say he didn’t
burn it, here’s why — because if you burn it or you cause it
to be burned, you're, you’re, you did it yourself. In fact,
under our law, if you aid and abet someone, if you know
someone else is doing an illegal act and you help them in
any way, shape or form — give them a match — you've done
it yourself. So it doesn’t matter whether he lit it or he was
there — it doesn’t matter. .
[68] The issue is very simple. When that cross was
burned by whoever burned it — either it was Mr. Black or
someone else in his group — did he burn it with the intent
to put other individuals or a group of individuals in fear of
imminent bodily injury or death. Period.
It’s not did he stand up and say I hate you. It isn’t did
he shout the words. It isn’t did he hold up a flag. It isn’t
did he demonstrate I just, I don’t like certain people. It
isn’t a question of does he have a right to have this cere-
mony. The only issue is when he burned it, was he threat-
ening people.
And in evidence of that, you can look at not only what
was done, but how it was done. By their own admission, it
was done hundreds of yards from the road surface and I
62
would submit to you that certain words can carry a threat
or certain gestures can carry a threat, but the distance —
it’s one (1) thing for me to sit back here and say I don’t like
you — it’s another thing to get up in your face, I don’t like
you. That’s different. That might be construed as threaten-
ing and maybe by my behavior I intend to communicate a
threat. That was not his behavior.
[69] The reason I keep talking is the issue is so sim-
ple, it’s scary. Simple issues bother lawyers. This is a
simple issue.
So I think at the conclusion of the evidence Mr. Black
has the right to express by sign or gesture any feelings he
has. That’s his right as a citizen. And even if you disagree,
you have sworn an oath to God to follow the law and the
law says we must protect his rights. We can’t protect his
right to intimidate people intentionally.
I will submit at the conclusion of the government's
evidence that you will find that there was a cross burning.
You will find that maybe people, some of you included,
might be uncomfortable by that — just like you’d be uncom-
fortable if the Black Muslims had a meeting or I'd be
uncomfortable if Rush Limbaugh had a meeting. If these
people come together and they say things that make us
uncomfortable, we don’t have a right to be free from
discomfort. That’s the disadvantage of living in a democ-
racy. You have to tolerate other people’s rights.
So they're going to have evidence that some people
might have been uncomfortable. They're going to [70] have
evidence a cross was burned. They're going to have evi-
dence that people drove by — some people might have even
been frightened. But there’s going to be no evidence, direct
or circumstantial, that he did it with the purpose of
63
making people feel that they were in imminent threat, a
real threat of injury or death.
And I would submit no matter how you feel about the
Klan, no matter how you feel about cross burning, you
took an oath as a juror to follow the law. And if you follow
the law, you will find there is no evidence of intent to
intimidate others.
And then comes the hard part. You’re going to have to
follow the law and by your verdict say that what he did,
even if you don’t agree with it, is legal. Just like soldiers
have to go to war to defend the nation and our principles,
you're going to have to do the same and it’s not meant to
be easy, but if you follow your oath, I will submit you will
find the Defendant not guilty.
Thank you.
* * *
(71] THE COURT: Thank you. Call your first
witness.
MR. GOAD: Sheriff Manning.
. . *
SHERIFF H. WARREN MANNING, first being duly
sworn to tell the truth, the whole truth and nothing but
the truth, was examined and testified as follows:
DIRECT EXAMINATION BY MR. GOAD:
Q State your name please.
AH. Warren Manning.
Q And what’s your position?
64
A I’m the Sheriff here in Carroll County.
Q And were you serving as such on August 22nd of
1998?
A Yes. I was.
Q And did you receive a report about a Klan gather-
ing in Carroll County on that date?
A Yes. I came home about six thirty (6:30) that
evening and had a note on my door saying that [72] there
was a rally, KKK rally in Cana, Virginia.
Q Right.
A And so I called my office and they told me that
they had information that there was a rally going on in
Cana. So I told them that I would be on my way down
there.
Q And you live in the Woodlawn community?
A Yes.
Q And so after you received the report, what did you
do?
A Well, I called my officers that was working to meet
me on Brushy Fork Road on 690 in Cana.
Q Is that in Carroll County, Virginia?
MR. BAUGH: We'll stipulate venue, Your Honor.
THE COURT: Thank you.
A Yes. It is.
Q Allright. Go ahead.
65
A O. K When I arrived there, I seen a four (4) by
eight (8) sheet of plyboard said KKK Rally.
Q Do you know about what time you got there?
[73] A Approximately probably seven (7:00), seven
fifteen (7:15).
Q O.K.
A Since I seen the sign, I wanted to make sure that
everything was legit and I wanted to get their attention. I
could see people out in the field. So I pulled off the side of
the road and | turned my blue lights on and I might have
flipped my siren on for just a second so they could see me
and three (3) gentlemen approached me up in a vehicle.
Q_ And, if you would, describe the lay of the land in
this area of the county.
A Well, it was a big open field.
MR. BAUGH: Excuse me. I don’t mean to cut
the witness off, Your Honor. We're willing to stipulate to
the admissibility of the photos they have and I believe
they might be more illustrative than the description if
counsel wishes to introduce them at this time or in con-
junction, I have no objection.
MR. GOAD: O. K. Officer Clark took the photos,
[74] but...
MR. BAUGH: I don’t mind.
MR. GOAD: I have four (4) photos.
THE COURT: All right. We'll, Commonwealth’s
Exhibit #1, #2, #3 and #4.
66
MR. BAUGH: That will be fine. No objection to
the introduction. No objection to the publication to the
jury.
THE COURT: All right.
MR. BAUGH: They’ve been previously tendered.
THE COURT: You may proceed.
Q Sheriff, I have Photos #1, #2, #3 and #4. If you
could, tell me what those photos show.
THE COURT: For the record, they'll be received
as marked and you may proceed.
COMMONWEALTH’S EXHIBIT #1, a photograph
of the scene of the rally in Carroll County, Virginia, is
received and filed as a part of the Court record in this
[75] COMMONWEALTH’S EXHIBIT #2, a photograph
of the scene of the rally in Carroll County, Virginia, with a
mark at the approximate placement of the cross, is re-
ceived and filed as a part of the Court record in this case.
COMMONWEALTH’S EXHIBIT #3, a photograph of
the scene of the rally in Carroll County, Virginia, with a
mark at the approximate placement or the Sheriff’s car, is
received and filed as a part of the Court record in this
COMMONWEALTH’S EXHIBIT #4, a photograph of
the scene of the rally in Carroll County, Virginia, is re-
ceived and filed as a part of the Court record in this case.
Q Is this showing the area where the rally was?
A Right.AsI...
67
Q Now, if you could, and with the Court’s permis-
sion, approach the jury and show them the photos to let
them see. :
(76) THE COURT: All right. And would you
refer, refer to the number on the photo as you testify
please?
A O.K_ Pl start with this one (1) first, #3.
THE COURT: All right.
A As I came down, heading this way, from this end,
somewhere in this area, in this area, there was a sign
right on the side of the road here, a four (4) by eight (8)
sheet of plyboard that said KKK Rally and I stopped right
in here and I could see people over in this area of the field.
MR. BAUGH: Sheriff, not everybody down here
can see at the same time.
A I stopped right here and there was a four (4) by
eight (8) sheet of plyboard right here. I could see people
moving and I could see a congregation of people here. So I
stopped here to try to get their attention to come out to the
road so I [77] could talk to somebody.
Q Was it still daylight at that time?
A No. I think it was pretty well dark at that time.
Q O.K
A O.K. #1 here, let’s see, #2, right here is a picture
of a house beside this fence here. This is the field that
we're talking about with a, should I go on and say what
was in the field here? Is that what you want?
Q Uh-huh.
68
MR. BAUGH: No objection.
Q Yes.
A O. K. The cross was here, somewhere in the,
somewhere in this area right here and I was back up here,
the picture don’t show. But that’s where the cross was
located.
MR. BAUGH: Your Honor, could I ask the
witness to mark in pen on the photograph the location of
the cross [78] where he recollects it being?
THE COURT: That will be appropriate. You may
do so.
Q And indicate which photo you're marking on, too.
A O.K This is #2. O. K. Do you want me to mark
where I was parked at, too?
MR. BAUGH: Wherever. If you think it’s neces-
sary to illustrate, I have no objection. In fact, ’'d ask you
to.
THE COURT: This is a different exhibit? What
exhibit are you marking this on?
A #3.
THE COURT: Going back to #3?
A Yes, sir.
THE COURT: Mr. Baugh, would you inspect
those and make sure that we can see those marks? Would
both of [79] you inspect?
MR. BAUGH: Yes, Your Honor.
69
Q In a couple of these photos, there's a resi i
' , dence in
the picture. Do you know whose home that is?
A O.K. #1, this is the Sechrists’ i
; , Roger Sechrist and
Q And they live next door to...
A This is where their fence is here, their field. This
is their house and the cross was here. Everybod it?
Did you see that? yee
MR. BAUGH: Your Honor, I have no objecti
be J on to
the exhibit being passed to the jury at this time. In fact
I'd ask that it be passed to the jury.
THE COURT: Do you want to publish
the jury ; Pp those to
MR.GOAD: Yes.
THE COURT: O. K I believe we can i
go on with
the evidence while they're looking at the exhibits. Any
— to going forward from either one (1) of the par-
. [80] MR. BAUGH: None from the defense, Your
THE COURT: All right. You may proceed.
Q All right. Let’s pick back up where you first turn
= your blue lights and hit your siren to get their atten-
n. .
A OK
Q What did you do after that?
70
A O. KI was wanting somebody to come over so I
could ask them some questions about what was going on
and three (3) men approached me with white robes and
they come up to my door of the car and I don’t think I even
got out and I asked them was this a legit KKK rally and
he said it was.
Q Did they have hats on?
A Yes.
Q O.K
A They, I asked them how long it was going to be
until their rally was over and they said it probably, it will
be another hour, somewhere in that neighborhood, hour
and a half until they [81] finished their rally up.
Q Now, was Mr. Black one (1) of those gentlemen?
A At that time, I didn’t know Mr. Black.
Q Right.
A But, you know, positively completely sure of it, I'm
not for sure.
Q O.K Allright.
A There was just three (3) gentlemen approached my
vehicle.
Q All right.
A So I told them, I said I would be around to make
sure everything went well and make sure everything was,
you know, law-abiding and see the rally through and I was
going to stay in the community. So they went back to the
rally and I went off from, where I showed you I was parked
71
at and just went out past the double-wide and pulled off to
the right.
Q All right. Now, what did you do after you went
back up there?
A. O.K. My officers and I, I had them patrolling the
roads and then they was coming up sitting [82] beside me
and just observing what was going on in the field. There
was cars coming by me and a few cars stopped and asked
me what was going on and I told them what was going on.
Q Now, were there any speeches being made during
the rally?
A I could hear talk and people talking, but I couldn’t
tell what they were saying.
Q O.K All right. Continue.
A O. K. Approximately probably forty-five (45)
minutes to an hour we was out there and I seen a light on
the lighting of a cross, burning of a cross.
Q Describe that for us and how that was done.
A Well, I was sitting there and I thought it was
about over with and I seen people gathering around the
cross and then all of a sudden it went up in a flame and
they circled the cross.
Q_ And how tall was the cross?
A My estimate, estimate was twenty-five (25) to
thirty (30) feet.
Q And I believe you said you were on a state road?
72
[83] A Yes. I was sitting on the side of the state road.
Q Clearly within your view?
A Yes.
Q Now, were there any other homes in the area?
MR. BAUGH: Objection to area, Your Honor.
That’s an indefinite term.
Q Within sight of the burned cross.
MR. BAUGH: No objection. Withdrawn.
A Somewhere in the neighborhood between eight (8)
to ten (10) houses.
Q O. K. Now, what did you do after the cross was
burned?
A My First Sergeant, Rick Clark, was with me and
we called our office. I let him call the office to check the
law book to see if there was, I wasn’t familiar with the law
on the cross burning and my office called me back and
advised [84] me that there was a Code section of violation
of burning a cross.
Q And what did you do after you received that
report? ,
A O.K Then! told, First Sergeant Rick Clark and
myself, I said we need to go down there and find out what,
you know, find out who's responsible and explain to them
that they cannot do this in the State of Virginia.
Q Right. And so did you go into the field where the
meeting was?
73
A Yes. I went down the driveway to the double-wide
and back around to the fence. Now, the fence shows in the
picture. There wasn’t a major fence like that at that time.
There was just a line kind of where you could tell the
difference in the property lines.
Q Right.
A This fence was built after this happened.
Q These are more recent photos?
A Right.
Q Right.
[85] A And I went down to the rally and, of course,
the people at the rally, you know, wanted to know what I
was coming down for and I asked them, when I got out of
the car, I asked them who was the leader of this rally . . .
MR. BAUGH: We're going to object to any
statements made by others other than the Defendant
under the Sixth Amendment confrontation clause.
THE COURT: Mr. Commonwealth?
MR. GOAD: I won't be offering any of that
THE COURT: Then you withdraw the question?
MR. GOAD: [I'l just ask him to focus in on the
Defendant.
THE COURT: All right.
Q Did the Defendant approach you when you first
asked the question?
74
A Yes. He did.
Q And is that Mr. Black sitting over there?
A Yes. |
[86] Q And did he still have the robe and the hat on?
A Yes.
Q Allright. And what was your question?
A I asked him who's the head of this rally and he
said I am.
Q And when you're saying who, he?
A Mr. Black said.
Q O.K
A And I asked him if he, who was responsible for
burning the cross and he said I guess I am because I’m the
head of the rally and I said well, there’s a law in the State
of Virginia that you cannot burn a cross and Ill have to
place you under arrest for this and my First Sergeant,
Rick Clark, was there and I took, took him to Rick Clark
and he proceeded to arrest him and put him in his car.
Q O.K Now, did any individuals at the scene seek
assistance or protection from you while that was going on?
A When I was there talking to Mr. Black and right
after the First Sergeant took Mr. Black over to [87] his car,
neighbors in the double-wide came up to me and it, they
was real, had this fear on their face .. .
MR. BAUGH: Objection, Your Honor.
THE COURT: Sustain the objection.
75
MR. GOAD: He can testify to what he saw.
MR. BAUGH: Hecannot...
MR. GOAD: To their facial expression.
THE COURT: Sustain the objection.
MR. BAUGH: Thank you. Ask the jury be
instructed to disregard.
THE COURT: So instructed.
MR. BAUGH: Thank you, Your Honor.
THE COURT: Members of the jury, disregard
the last comment.
Q Did they seek protection?
MR. BAUGH: Objection, Your Honor, unless
there’s a basis and it gets dangerously close to confronta-
tion. If the people are here, they can testify [88] to what
they came and asked for.
MR. McLEES: Your Honor, it’s not a hearsay
situation. It’s a verbal act on their part if they came to him
and asked for protection. He can, he can tell what they
said because it’s a verbal act. It’s not offered for the truth
of the matter.
MR. BAUGH: Im not objecting at this time to
being double teamed, but I will next time. Your Honor,
there are some, in grammar, there are some words which
do not carry with them a question. They do not carry with
them a declaration. The statement that he asked clearly
calls for a declaration and that would be violative of the
Sixth Amendment right to confrontation. If they're here,
they can testify. It is a hearsay exception and, more
76
importantly, it’s a confrontation exception and a confronta-
tion objection.
THE COURT: Anything further you want to
add?
MR. McLEES: The confrontation clause is not
violated by the traditional firmly rooted, common law
hearsay exceptions and this is one (1) of them.
THE COURT: Swustain the objection.
Q Answer anything Mr. Baugh might have.
[89] CROSS EXAMINATION BY MR. BLACK [sic]:
Q Sheriff Manning, on this sign announcing the
rally, did it say words on it like it was private or anything
like that? Do you remember the words that were on it?
A. The best I can recollect, it did have private, I believe,
on that sign.
Q O.K. During the time you were out there, sir, the
hour and a half before the cross was Lit, first, did you see
the cross erected? Did you see it standing there?
A No. It was dark and I really didn’t see until it was,
until they set it on fire. |
Q I thought — and correct me if I’m wrong — that you
said that you saw them circle the cross, they got around
the cross and then you saw the cross lit, but you, I believe
you said you saw them circle the cross first.
A Well, at the time, I seen them circle, but I [90]
didn’t, my mind wasn’t focused on the burning of a cross at
that time.
77
Q You were familiar with the fact — am I correct, sir
— that a cross burning is not, it’s not a disassociative thing
with the Klan? I mean, that sort of thing happens in Klan
rallies. Right?
A Right. But we’ve never had one (1) in Carroll
County.
Q (0. K. And during that hour and a half, did you
ever think, well, let me ask you this, did you know it was a
crime during that hour and a half you waited to burn a
cross?
A No. No. Not until I called my office.
. Q And that’s how come you didn’t tell them it’s a
crime to burn a cross because you didn’t know?
A That’s right.
Q All right. Did the members of this rally do any-
thing in contravention of your orders or directions during
the time you were there? Did they, were they difficult with
you?
A No.
[91] Q Whose field is that in which the cross was
burned?
A Im not for sure the ladys name, but it was Joey
Sechrist’s mother.
Q And had you had, had you had any complaints
about trespassing or any allegation that the Klan people
were there without permission?
A No.
78
Q All right. So your investigation indicated they
were there with permission?
A Yes.
Q All right. And they stayed on the portion of the
property for which they had permission?
A As far as I know.
Q All right. Now, during the whole time you were
there, were there any, were there any members of the
gathering dressed in their sheet things?
A Was there any more than Mr. Black?
Q Uh-huh. Anybody?
A Everybody was.
Q All right. And weapons on the part of them?
A I did not search anybody but Mr. Black.
[92] Q Did you see any weapons out there?
A I did not see no weapons.
Q Did you see any overtly threatening gestures or
signs?
A No, sir.
Q Did you feel, well, let me ask you this. Do you
agree with the views of the Klan?
A No.
Q Did you perceive what was going on as a threat of
imminently bodily injury to you? Did you feel you were
going to be attacked?
79
A By the burning of the cross, is that what you
mean?
Q Uh-huh.
A Just by the actual burning of the cross?
Q Uh-huh.
A It, not maybe by the actual burning of the cross.
Q Thank you. Well, we’re here about the burning of
the cross, aren’t we? That’s the reason we're having this
little party. Right? You have to say yes or no, sir.
[93] A I didn’t catch the question. Say it again.
Q O. K. The reason we're here, the reason he was
arrested was about the burning of the cross. Right? It
wasn't about wearing the percale and walking around and
all that.
A Just burning the cross. Yes.
Q O.K Thank you. Pass the witness.
AND FURTHER THIS WITNESS SAID NOT.
MR. GOAD: No additional questions.
THE COURT: Are you going to recall?
MR. GOAD: Possibly.
THE COURT: We'll need for you to wait then in
one (1) of the outer rooms. Don’t, don’t go back in the same
room with the other witnesses and don’t discuss your
testimony.
80
[The witness, Sheriff H. Warren Manning, is again
excluded from the courtroom and from the hearing of aay
of the matters therein.]
[94] THE COURT: Next witness.
MR. GOAD: Judge, I would request a conference
in chambers for a brief moment on a matter.
THE COURT: All right. Let’s go to chambers ©
and the Defendant is welcome.
- * *
IN THE COURT’S CHAMBERS - OUT OF THE PRES-
ENCE OF THE JURY
[Present are the Court, the Clerk, the Court Reporter,
Mr. Goad, Ms. Collins, Mr. McLees, Mr. Hurd, Mr. Baugh,
Ms. Davis, and the Defendant, Barry Elton Black.]
MR. GOAD: Judge, in the opening statement of
counsel, he stated that the intimidation, intent to intimi-
date others required an imminent threat of injury or death
and he again asked that question on cross examination of
Sheriff Manning and it’s our position that’s not the aceu-
rate description on what is an intent to intimidate. There
had been some discussion about this on the jury instruc-
tions and Mr. Baugh forwarded one (1) [95] to me previ-
ously which we were not going tc object to which did not
contain the threat of, imminent threat of injury or death
and then yesterday we received some new ones that did
and it’s our position that that is not an accurate statement
of the intent to intimidate and with that being in the
opening and then on cross examination with the Sheriff, I
felt like we ought to address that now.
81
THE COURT: What do you have to say?
MR. BAUGH: I didn’t hear an objection. I don’t
know what I’m answering to. Did I say it? Yes. I don’t
know what I’m, what do you want to know?
MR. GOAD: I’m objecting to anything further.
. MR. BAUGH: Your Honor, I said it about six (6)
times during voir dire, at least ten (10) times during
opening without objection, if the Court’s going to rule we
can’t do that after we opened with it and we've voir dired
on it, we'll move for a mistrial now because I can’t change
tactics in the middle of a trial.
THE COURT: What did you say in your briefs?
Wasn't, do you have a copy of your brief that ?
Wasn’t that... —
[96] THE CLERK: Do you want the Court file?
MR. GOAD: I do on my desk.
THE COURT: O. K. Could I see the briefs? I
thought that was one (1) of the things that you said in
your, in that brief.
; MR. McLEES: Your Honor, we said that the
intent to intimidate involved a, putting people in fear and
I think we said in fear of injury. We don’t have any prob-
lem with that. I think our objection is with Mr. Baugh’s
gratuitous injection of this element of fear of imminent
danger. It doesn’t have to be imminent danger. The law
doesn’t, the statute doesn’t say that and the Constitution
doesn’t require that.
MR. BAUGH: Your Honor, we have two (2) new
cases. The reason I didn’t do them earlier — in completing
82
the instructions, in the instructions I filed on June 10th,
as per your direction, I did use the word immediate which
I take as analogous to imminent. Additionally, I did submit
~ we had some faxed, I left, I forgot them and I had, and
Mr. Goad permitted me to have them faxed over to his
office for delivery to me — there is a new case or cases that
were referred to us by the [97] Jefferson Institute at the
University of Virginia — one (1) is called Baker, the other
one (1) is, was it Hefler? H-E-F-L-E-R. I have copies in my
briefcase.
MS. DAVIS: Kessler.
MR. BAUGH: Was it?
MS. DAVIS: That’s the case — Kessler.
MR. BAUGH: Kessler, Kelfer, something like
that, and I have copies. Both of them say that in order for
it to be, to intimidate, there must be a, quote, “true threat
of imminent bodily injury or death” in order, to escape the
protection of the First Amendment. I mean, as the Court is
well aware — just saying I hate people isn’t enough. It
must be calculated.
It’s like the yelling of fire. It must be calculated to
elicit a reaction at that time and it is the prevention of the
action occurring which takes it outside the First Amend-
ment. To just make a statement that somewhere way down
the road may cause a reaction, to scream fire in an open
field, for instance, is not a violation of the First Amend-
ment.
The same thing here, it has to be imminent. It must
be a threat of serious bodily injury and I believe [98] the
government conceded some of that issue in their brief.
83
THE COURT: Give me a minute while I find the
brief...
MR. BAUGH: Yes, sir.
THE COURT: Let me have some comment with
regard to the Commonwealth’s statement in the Brief in
Opposition, this language appears: “The Virginia statute at
issue outlaws”, this is emphasized, “threats of violence, not
mere incitement to violence or fighting words”. Then it goes
on and “Black now unreasonably pounds his figurative fist
at Brandenburg vs. Ohio”, et cetera, “which involved an
attempt to outlaw advocacy of lawless actions of others
rather than direct threats. He cavalierly ignores the abun-
dance of authority that direct threats of violence, unlike
mere advocacy, are outside the First Amendment”.
Aren’t you saying that we need the - in your own
briefs — that you need the direct threats?
MR. McLEES: We're saying it needs to be
something that expresses a direct threat, but not a threat
of imminent harm. The imminence is what we object to
here. He’s trying to get in through the back door what he
[99] couldn't through the front door. He argued over and
over again that it was this clear and present danger test.
Your Honor correctly ruled the clear and present danger
test is not involved in this kind of statute.
One (1) can violate the law by threatening future
harm. It doesn’t have to be imminent harm. We've got not
only this statute in Virginia. Your Honor knows we've got a
statute that makes it a felony to communicate a threat to
burn a building by the telephone. Now, if you call some-
body on the telephone and say I’m going to burn your
house in the next county, there’s not an imminent threat
84
involved, but that is still, there’s not an imminent, you
don’t have to show an imminent danger to show that that
is a felony to communicate that threat. You can say I’m
going to burn it next year.
There is a, it is a felony to extort people with the
suggestion that if they don’t do what you want them to do,
you're going to accuse them of some kind of heinous crime.
That doesn’t have to be a statement that you're going to do
it right now or that the harm to them is going to be immi-
nent. There are all sorts of different ways of intimidating
people, of threatening harm - now, in the [100] future, to
them, to somebody else. All the law requires is that the
Defendant’s intent be serious — that he actually intend to
frighten people with this expression of threat. It doesn’t
require that it be imminent danger and it doesn’t require
that he have the actual capacity to carry through on the
threat. It’s just the intimidation of some sort of threat of
harm.
MR. BAUGH: Your Honor, briefly, and I think
this might resolve the issue. I’m citing from another case
I’ve not tendered, but I will be glad to, U.S. vs. Baker,
which is 890 Fed Sup 1375, Eastern District of Michigan,
1995, but I’m referring to the quote in Brandenburg which
you just indicated they cited. Quoting from Brandenburg
vs. Ohio, which is 395 US 444, reading from Page 447,
“The constitutional guarantees of free speech and a free
press do not permit a state to permit or prescribe advocacy
of the use of force or of law violation except where efficacy is
directed in inciting or producing imminent lawless action
and it’s likely to incite or produce such action.”
Further, if you read on in the case, you'll see the other
thing about true threat, the whole case, at the [101] top of
85
the column over here, true threat, what it means, true
threat means serious bodily injury and I will give the
highlight, this is a quote from Brandenburg which they
cited in their brief and it clearly says it has to be immi-
nent.
MR. McLEES: Your Honor, Brandenburg is a
fighting words case. It’s back, he’s trying to get in the back
door what Your Honor has already rejected through the
front door. This is not a statute against advocacy of vio-
lence or advocacy of overthrowing the government. This is
a statute against trying deliberately to actually scare
people. So the Brandenburg language quoted in that case
is not involved here.
Now, Mr. Baugh has not graced us with the Baker
case. He hasn’t graced us at all with the Kessler case that
he mentioned. I have no idea what that is. The only reason
we know about the Baker case is because that he, he
submitted to Mr. Goad this jury instruction which is
incorrect which has the Baker case incorrectly cited at the
bottom of it and I called my office and they found the
correct cite and faxed me the case.
It appears to me, from what I’ve been able to [102]
glean this morning, a Sixth Circuit case involving a
federal statute with Sixth Circuit case law on it. That is
not good law in the Fourth Circuit. It’s not good law in
Virginia. If Your Honor were to adopt this standard here,
then not only is this statute unconstitutional, but the
telephone threat statute would be unconstitutional, the
extortion statute would be unconstitutional. It simply is
not a requirement — when someone is actually expressing
a threat and seriously trying to scare people, it is not a
requirement that it be an imminent danger, that the
person be and put in fear that they're going to be hurt
right now. It could be some time in the future in some
other place.
THE CLERK: Is this what you're looking for?
THE COURT: Is it Commonwealth’s?
THE CLERK: No. That’s Mr. Baugh’s.
MR. BAUGH: That looks like my response, Your
Honor.
THE COURT: I'm really looking for the Com-
monwealth’s . ..
THE CLERK: Oh, I’m sorry. I thought you were
looking for his.
[103] THE COURT: No. Let me look again. In
your, in the Commonwealth's brief, we have this, this
additional language: “Intimidation as used in such statutes
means putting one (1) in fear of bodily harm”, now, this is
what you’ve agreed to, this is your, your memo in stating
that it’s not vague and it’s not overbroad.
MR. McLEES: We do agree to that, Your Honor.
THE COURT: “Moreover, even if the English
language permitted a broader interpretation for the word
intimidating, principles of statutory construction would
require this Court to construe the word narrowly, as stated
above, and thus uphold the constitutionality.” 1 believe
that’s the only thing...
MR. McLEES: We do, we do agree to that, Your
Honor. The entire controversy here is over his use today of
the word imminent.
87
THE COURT: I understand that.
MR. McLEES: And where he’s going with tha
of course, is that he’s going to say well, or on + hag
imminent harm because there was nobody there at that
point that they were, that they were about to assault and
he’s already started down that road and that’s not the
[104] standard. If the, the black family in the car drove
past this, this burning cross and saw it and got frightened
and sped away because they, they were frightened of it and
it frightened them that some future harm might come to
them because this is building up racial animosity in this
county, that’s sufficient to show intimidation, but he’s
going to say it’s not. If people, if the word iis spread
throughout the community as a result of this that there's
an active KKK chapter in Carroll County and you better
watch your step and not walk down the street holding
hands with somebody of a different race, that’s intimida-
tion, but he’s going to say it’s not. And that’s not the law.
MR. BAUGH: Your Honor, if the Commonwealth
is asserting that the purpose of this statute is to forbid
racial animosity, I will gladly take that record to the
Supreme Court. It is illegal to try to outlaw animosity and
that is what he’s arguing. Your Honor, in order for you to
rule the way they just said, you must knock out the
imminence requirement of Brandenburg and you m
knock out the language of their own brief psc
bodily injury and unless you're willing to deny Branden-
burg which is U.S. Supreme Court — and, by the way, Sixth
Circuit [105] did, I mean, we did cite, that was . Sixth
Circuit case and I provided it to the Court only for direc-
tion because of the, some of the questions in the statute —
but if the Court is going to rule that Brandenburg is not
the law and the government, and I cannot rely on the
government's representations in its brief, then we're still
going to have to, we’re going to have to continue the case
and declare a mistrial, but I would submit the Court
cannot overrule Brandenburg and their assertion, the
government’s assertion in that brief concerning the re-
quirement of bodily injury, the, the interpretation to
require that is valid and that is what I have argued —
Brandenburg and the assertions they have made in their
brief.
MR. McLEES: Your Honor, we're not going back
on our brief one (1) iota. It requires a threat, it requires
intimidation, but it doesn’t have to be imminent and
Brandenburg has nothing to do with this case because this
is not a fighting words case. This is not a case where he’s
being prosecuted for advocating a point of view. It’s a case
where he’s being prosecuted for trying to scare people.
But we don’t have to show that he intended to [106]
make people think that they were going to be subjected to
violence in the next five (5) minutes and that’s what he’s
trying to plant in the jury's mind. He’s trying to mislead
them.
THE COURT: The Court’s going to sustain the
objection. I had overruled the clear and present danger
test and I think that’s what we're getting into when you
talk about imminent danger. It has to be a threat of
violence, but the imminence - as if it’s going to happen in
the next five (5) minutes or the next hour — I don’t think
that’s a requirement.
MR. BAUGH: [Ill move for a mistrial. I can’t
change. I’ve already voir dired this jury and questioned on
it.
MR. McLEES: Your Honor, he misstates the law
three (3) times and we call him on it on the fourth one (1)
and he thinks he’s entitled to a mistrial? With all due
respect, it’s nonsense.
THE COURT: I'm going to deny that motion. No
need to argue that. Motion for a mistrial is denied.
MR. BAUGH: Your Honor, I believe that the
government has waived their objection.
[107] MR. McLEES: We have not.
MR. BAUGH: They have correctly stated the
purpose of this advocacy is to outlaw racial animosity. We
told you earlier that was the purpose of this statute. They
have acknowledged it. Your Honor, you sat in, if they had
objected, we would not be in this posture. They didn’t.
I am still of the opinion that under Brandenburg -
and you can’t say that language is not there — I’m still of
the opinion, I have always been of the opinion that that is
the law. Now, they didn’t object. They have to eat it.
I move for a mistrial. It can’t be cured. How are you
going to cure it, Judge?
THE COURT: I’m not going to try to cure it.
MR. McLEES: There’s nothing to cure.
wae THE COURT: I'm going to deny the motion for a
mistrial. We will go forward and we'll, we'll try this case
and see what happens.
MR. BAUGH: Your Honor, I have to know, I
have to know the direction then. If you’re going to permit
them to say that the earlier assertions upon which I made
90
[108] my argument are unfounded, then you have just
negated opening. Shall we start again?
THE COURT: They can, when the time comes, if
we get this far, when the time comes to get the instruc-
tions ready, they can argue to that jury that the Court's
instructions are as follows and this is the law of the case.
What, I’m not going to permit them to argue to the jury
that you misstated the law in your opening statement. The
law of the case is whatever the Court tells the, tells this
jury the law is when I get to that point. Now, I’m not going
to let you criticize his assertion of what the law was at the
opening statement.
MR. McLEES: We have no objection to that.
THE COURT: It was probably objectionable.
When you try to tell the jury what the law is in your
opening statement, you run the risk that the Judge may
not agree with that.
MR. BAUGH: Well, that someone might object.
MR. McLEES: That’s exactly right.
THE COURT: That’s right. Someone can always
object and we can get it straightened out right then. That's
the Court’s ruling. Let’s go finish our evidence.
[109] * ’ ’
IN THE COURTROOM - IN OPEN COURT
BAILIFF: All rise. |
THE COURT: Thank you. Just be seated please.
Call your next witness.
91
MR. GOAD: First Sergeant Rick Clark.
* * *
. FIRST SERGEANT RICHARD C. CLARK, JR., first
being duly sworn to tell the truth, the whole truth and
nothing but the truth, was examined and testified as
follows:
Q State your name please.
A Richard C. Clark, Jr.
Q And what's your position?
A Im a First Sergeant employed by the Sheri
(110) Carroll County. iastiecniel
Q And were you serving as such on August 22nd of
last year?
A Yes. I was.
Q And were you called upon by the Sheriff to go to
the Cana section of the community?
A Yes, sir. I was.
Q And what was the purpose of that?
A I was called by radio and told to meet the Sheriff
on Brushy Fork Road which is State Road 691 in the Cana
section of Carroll County. When I arrived there, I met him
at a store, an abandoned store and he told me that there
was a meeting of individuals that he wanted
and to be in the area. oo
Q And did you see individuais in that area?
92
A Yes, sir. He instructed me to patrol up and down
the road, from north to south. As I started back on the
road, there were two (2) people in white robes and pointed
hats standing on the side of the road beside a sign that
said KKK Rally.
[111] Q Do you recall if the sign said anything else
on it besides...
A No, sir. I don’t.
Q All right. And what did you do at that time?
A I continue to patrol up and down the road. At one
(1) point, we went to the, it would have been the northwest
side of where they were at and we started watching where
they were at — they had gathered around a cross. I called
the dispatcher and that — I knew that there was a cross
burning statute, but was not familiar with it — I called the
dispatcher and asked him to look up the Code Section and
to call me back and read the Code Section to me when he
found it.
Q Can you tell us how many people were at this
gathering?
A It appeared to be twenty-five (25) to thirty (30).
And were they all dressed similar?
Yes, sir. They appeared to be.
And what did they have on?
White robes and white hats.
[112] Q And so what did you do after you received
your radio report back about the statute?
> © -
93
A Prior to him calling me back, they had been
standing around a cross that was in an open field. They
moved in unison to the cross and lit the cross and it was
flaming. He called me back and read the statute. When I
told the Sheriff what the statute was, he instructed me to
go with him across the field where we went forward
toward the group. He asked who was in charge and Mr.
Black came forward and indicated that he was.
Q Right.
A We placed Mr. Black under arrest for burning a
cross.
Q_ And what did you do after that?
A I took him back to my police vehicle. I searched
him and placed him into the vehicle and I was instructed
by the Sheriff to bring him back to the jail to complete the
arrest process.
Q Right.
A_ To do so, I had to travel back to State Route [113]
691 where we had general conversation all the way back
up the road. He spontaneously, as we approached Route
691, said when is the white man going to stand up to the
blacks and Mexicans in this area. I asked him to clarify his
statement and he told me he was lead to believe that the
blacks and Mexicans were walking up and down ‘the
sidewalk with white women holding hands and taking all
the jobs.
Q Right.
A I told him there weren’t any sidewalks in Cana,
Virginia.
Q Uh-huh.
A And he said he’d seen it that afternoon. I told him
there weren’t any sidewalks in Carroll County, Virginia in
the Cana section and he indicated, I understood that he
had stayed in the Mount Airy section where there are
sidewalks and he seemed surprised that he was in Vir-
ginia.
Q Right.
A We talked all the way back up the road to the jail.
It took fifteen (15) to twenty (20) [114] minutes at that
time of night, but when I got to the jail, I completed the
arrest process and took him before a magistrate.
Q O.K Now, did any individuals drive by while you
were observing the gathering?
A State Route 691, there was a normal flow of
traffic. Some people would drive by and holler out the
window. There was a black family that drove by. They
stopped and took off. Probably, in the hour that I was
there, there was probably forty (40) to fifty (50) cars came
by.
Q Now, when you say stopped and took off, what do
you mean by that?
A Stopped and looked across the field and then they
took off.
Q Was the cross burning at that time?
A Yes, sir. It was.
Q And how tall was the cross?
A Twenty-five (25) to thirty (30) feet.
95
Q And what type of distance did you see the glow of
the cross go?
A We were standing probably three (300), three [115]
hundred (300) to three hundred and fifty (350) yards away.
Q_ Right. Clearly visible from where you were at?
A That particular stretch of road’s probably three-
fourths of a mile and you could see it, one (1) end of the
road cuts left and right, down a hill and up a hill, one (1)
end of the road goes down a hill, you could see it from both
ends of the road. It was probably visible at that particular
point a half mile in each direction.
Q Right. When you talk about this family stopping
and taking off, are we talking slowly, quickly or what?
A When they came up to us, the Sheriff had his blue
lights on because we were on the side of the road.
Q They slowed at our location. When they found out
that we didn’t want anything, they appeared to
and took off. ines _—
MR. BAUGH: Objection to appeared to be upset,
[116] Your Honor. That is improper. We ask the jury be
instructed to disregard.
THE COURT: Sustain the objection. Disregard
the statement, members of the jury.
MR. BAUGH: Move for a mistrial.
THE COURT: Denied.
MR. BAUGH: Note my exception.
Q What was the speed of the vehicle when it left?
A They left at higher than a normal rate of speed. I,
they didn’t speed or spin their tires when they were going
away.
Q O.K. Answer any questions that Mr. Baugh might
have.
CROSS EXAMINATION BY MR. BAUGH:
Q You saw the cross in the ground before it was lit,
didn’t you?
A Yes, sir. I did.
Q And based upon your years of life, you're not
surprised to hear the Klan burns crosses, do [117] you?
A_ I was surprised to see it in Carroll County. Yes, I
was.
Q Yes. But you know it’s not uncommon for the Klan
to burn a cross?
A Iknow they burn crosses. Yes, sir.
Q All right. You didn’t know for sure it was illegal
until after it was lit. Am I correct?
A I knew there was a statute. I didn’t know what the
statute said.
Q All right. And, but you didn’t even ask, well, how
long were you there in the presence of the unlit cross?
A Twenty (20) to thirty (30) minutes.
Q And how long were you there before you called
dispatch and asked them to look up the statute?
A Ten (10) to fifteen (15).
97
Q So you're not saying that if you had gone over and
told these people it was illegal to burn the cross, they were
going to burn it anyway?
MR. GOAD: Objection. Speculation.
[118] MR. BAUGH: Withdrawn.
Q Sir, you don’t, you don’t speak for all black people,
do you?
A No, sir.
Q They don’t have a meeting and elect you represen-
tative, do they?
A That's correct.
Q Or Hispanics, for that matter?
A That’s correct.
Q So when you say a black family came up and drove
away, you don’t know if they drove away because they felt
threatened or they were laughing at a percale posse that
was standing around a burning stick, do you?
A I just had my personal opinion.
Q You had your opinion. However, you know when
you're on the stand because you're a trained officer — we've
both been doing this for years - we talk about evidence,
don’t we?
A That's correct.
Q All right. You don’t have any evidence of that,
[119] do you?
A No, sir.
Q Thank you. Now, how many officers were out there
while the cross was burning?
A Myself, Sheriff Manning and Deputy Sheriff Larry
Hall.
Q And you say there were how many people on the,
members of this, members of the group around the cross?
A Twenty-five (25) to thirty (30).
Q Allright. Did you get out of your vehicle?
A Yes, sir.
Q Did you walk around?
A At which point, sir?
Q I mean, did you, I mean, during the twenty (20)
minutes you were t here [sic], did you walk around your
car? Did you walk to one (1) side of the street, back, forth,
observe what was going on?
A On more than one (1) occasion, yes, sir.
Q All right. Did you pull your shotgun out of the car?
A No, sir.
[120] Q Did you understand that burning a cross
was part of their ceremony?
A No, sir. I didn’t know much about the Klan.
Q All right. Oh, were the people at this rally making
statements?
A I could hear people talking, but from the distance
that I was at, it was unintelligible.
99
Q Am / correct then that, were
of amplification deviee? they using any type
A There was a generator running and you could tell
somebody was talking over a PA, but I
he | A, couldn’t understand
Q So you don’t know if anyone was advocating
violence, anyone was advocating bodily injury, if they were
praying, you have no idea what was being said, do you?
A Icouldn’t understand a word, sir.
Q All right. And you were out of your vehicle?
A On more than one (1) occasion.
Q That's right. And you were certain!
y no more
closer than the people who were driving by?
A No, sir.
(121) Q According to the response we have here on
the Bill of Particulars, the government advocates that, do
you personally agree with the philosophy of the Ku Klux
Klan as you understand it?
A Absolutely not.
Q And did you feel threatened by their actions?
A I felt moral, moral outrage.
Q That's a nice answer, but perhaps you could
answer my question. Did you feel threatened?
A For my personal safety, no, sir.
Q Thank you. Pass the witness. No further ques-
tions.
100
AND FURTHER THIS WITNESS SAID NOT.
THE COURT: Any further questions?
MR. GOAD: If I could have just a moment. No
other questions at this time. We'd like to reserve the right
to recall.
THE COURT: All right. We'll ask you to remain
in the witness room until you're recalled and don’t [122]
discuss your testimony with anyone.
SGT. CLARK: Not with the other witnesses?
THE COURT: Well, the two (2) that’s testified
can stay together, but not with the ones that have not
testified.
[The witness, First Sergeant Richard C. Clark, Jr., is
again excluded from the courtroom and from the hearing
of any of the matters therein.)
THE COURT: Next?
MR. GOAD: Rebecca Sechrist.
REBECCA SECHRIST, first having duly affirmed her
oath to tell the truth, the whole truth and nothing but the
truth, was examined and testified as follows:
DIRECT EXAMINATION BY MR. GOAD:
Q Good afternoon.
(123)A Hi.
Q State your name please.
A Rebecca Sechrist.
101
. Q 0. K And, Mrs. Sechrist, if you would, scoot up a
little bit so we can pick up the voice on the mike so every-
body can hear. Where do you live at, Mrs. Sechrist?
In Cana. Cana, Virginia.
That’s in Carroll County?
Yes, sir.
And your husband’s name is Roger?
Yes, sir.
And did you live in that area on August 22nd,
Yes, sir.
And were you at home that day?
Yes, sir. We wasn’t, we wasn’t home that
we was home that evening. —
Q Right. What time did you get back home?
A About four o’clock (4:00), between four (4:00
four thirty (4:30). vias
Q And what did you find once you got back home?
[124] A Well, right beside our house, it was all
" roped
up, off, and we at first thought it was a, somebody going to
cena camathiag ent then when wo acted aay
mother-in-law she said that i
we a they were having a Ku
Q Right.
A Yes, sir.
ro"
a es ae
102
Q Did you see any sign indicating that?
A Not until late that evening, later, you know, right
before it.
Uh-huh. Now, this was not on your property?
©
No, sir.
Property that adjoins you?
Yes, sir.
And did you see any individuals out in the field?
Yes, sir.
And what were they doing?
Putting a cross together.
Right.
A And they were just hanging out, you know, but
[125] most of the men were putting a cross, a big cross
together.
Q Right.
A And they had little kids and everything out there
helping.
Q Right.
MR. GOAD: If I may approach the witness?
THE COURT: You may.
o> OD > © > & >
Q I have in my possession Exhibits #1 through #4. ®
have at this time Exhibit #2 and there’s a house in
corner of the picture.
103
A That’s our home.
Q O.K Now, I understand that you all were actually
not living in it at that time?
A No. They just had brought it that week and set it
down.
Q And your husband’s parents live next door?
A Yeah. On up the hill, up this way.
Q Right. So you were actually staying with them and
getting ready to move in?
[126)A Yes, sir.
Q O.K. And who owns the property next to you?
A Jov Sechrist or Anna Lee Sechrist.
Q_ And that’s his mother?
A Yes.
Q O. K And were you present in the area from four
o’clock (4:00) that afternoon on into the evening?
A Yes, sir.
Q And what did you do during that time?
A Mostly sat and watched to see what’s going on.
Q Right.
MR. GOAD: If I may approach again?
THE COURT: You may.
104
@ On Exhibit #2, there's been a notation by the
Sheriff of the general area of where the cross was erected
at. Does that appear accurate?
A Yes, sir.
Q O. K And you would agree that it’s « pretty flat
terrain area from the road area? :
[127] A Yes, sir.
MR. BAUGH: Your Honor, the photograph will
speak for itself.
MR. GOAD: Yes.
THE COURT: Sustain the objection.
Q Now, in this part of the picture, it appears to drop
down on the back side. Do you know the lay of that land
back in that area?
A Now, right in here, it kind of goes down, but it goes
back up on, behind these trees and it’s kind of flat, you
know, pretty flat out back behind the trees.
Q Right. Is that an open field in that dip on the back
side?
A Right here?
Q Right.
A Not right here, it’s not, but on the back side of
these trees, it is. You can see it like from right behind our
trailer and look around these woods, you can see how open
it is back there.
[128] Q Right. And that’s still the property of Joey
Sechrist’s mother?
105
A Yes, sir.
Q Now, if a person was back there, could they be
seen from the public road?
A No. No, sir.
Q O. K. Did there come a point where various
speeches began being made from the group?
A Yes, sir.
Q And was there a PA system or just people speak-
ing or what?
A They had a PA system. You know, before, before
they put the robes and stuff on, they just, you know,
talked, but after they put the robes on, they had a PA
system and a stage.
Q Uh-huh. So when the speeches were being made,
the robes were on?
A Yes, sir.
MR. BAUGH: Objection to speeches, Your
Honor. I don’t believe she’s testified to that. That’s assum-
ing a fact not in evidence.
[129] THE COURT: Sustain the objection.
Q Did there come a point where you heard state-
ments being made from the group?
A Yes, sir. All of them that had...
Q Excuse me. Let me jump in for a second. And at
that time, were the robes and the hats on?
A Yes, sir.
106
Q All right. And do you know how many peop’e
spoke?
d said a, a little
A All that had the robes on got up an » a
speech about what they were there and what they believed
in and stuff.
Q Right. Did you hear any threats be’ ag made from
those statements?
MR. BAUGH: Objection unless they came, they
were coming from my client, Your Honor. I don’t want my
client being held responsible for statements made by
others.
MR. McLEES: Your Honor, ...
MR. BAUGH: [Im going to object to ——
double-[130] teamed finally. Whoever is going to handle
the questions is going to handle the objection.
MR. McLEES: I think that’s entirely up to the
Court. I think that’s within the discretion a
ink i iate that, Mr.
THE COURT: I think it’s appropriate »I
Goad is asking the questions, so let him state the objec-
tion.
MR. BAUGH: Thank you.
MR. GOAD: Judge, to begin with, he’s waived
that objection during his cross examination of —e
Clark. He asked him were there any statements ma by
the individuals that he could hear. He also asked —
there any threats that were made from the rally. =
opened the door on this issue and he can’t object to e
testimony regarding that very same issue at this time.
107
And, secondly, it’s an adopted admission by the Defen-
dant. It’s already in evidence that he’s admitted that he
was the leader of the Klan rally, that he was responsible
for the burning of the cross, thereby he’s made an adoptive
admission of what the speeches were made during this
rally.
(131] MR. BAUGH: DoI understand it correctly
if 'm a member of the Democratic party and someone says
something, then that means I’m saying it as well? Your
Honor, that is not only not a proper evidentiary argument,
that’s illogical. Additionally, Your Honor, I would point out
that I asked the officer not what were the contents, I said
were they made. He said no. If I had gone into what
statements were made, counsel should have objected
because that would have been impermissible. But this,
he’s now trying to find out what was said and that is a
violation, unless they have a recognized common law
hearsay exception that overcomes the presumptions of the
confrontation clause, that is impermissible.
THE COURT: Any further comment?
MR. GOAD: Just the test for the adoption, the
adoptive admission is whether a person similarly situated
would have felt themselves called upon to deny the state-
ments effecting them in the event they did not intend to
express acquiescence by the failure to do so. With these
statements being made at his rally, I think these are
relevant as adoptive admissions.
MR. BAUGH: If this lady’s, first, I’m not [132]
saying that’s valid, but even then, I haven’t even heard
them say he was present at the time these statements
were made. May I take her on voir dire to make determi-
nation and then the Court can rule?
108
THE COURT: You may.
VOIR DIRE EXAMINATION BY MR. BAUGH:
Q Ma’am, did you see this lady, this man here when
the speeches, you say, were going on?
A Yes, sir.
Q Do you recognize him? You saw him the whole
time?
A He was there and then after, now, after they put
the robes on, I couldn’t tell you who was who.
Q And so you said that while the speeches, they put
their robes on and started giving speeches. Right?
A Yes, sir.
Q So you don’t know if when the speeches were going
on, he was there or not. Right?
A No. I couldn't recognize him after the robe was
[133] on.
Q Thank you.
MR. BAUGH: Re-urge the objection twice.
THE COURT: Do you have any questions you
would like to ask with the, with, in that regard?
MR. GOAD: No, sir.
THE COURT: Anything further you want to say
about it?
MR. GOAD: No, sir.
109
THE COURT: Im going to overrule the objec-
tion. You may proceed.
MR. BAUGH: Note my exception.
THE COURT: Yes, sir.
CONTINUED DIRECT EXAMINATION BY MR. GOAD:
Q O.K. Mrs. Sechrist, if you would, go forward and
tell us what threatening statements you heard being made
at the...
MR. BAUGH: Objection to the characterization
of [134] threatening. She can say what she heard.
THE COURT: Sustain the objection. Don’t lead
the witness. You can ask her what she heard and she can
tell us.
MR. GOAD: Yes, sir.
Q What statements did you hear?
A They were real, they were real, talked a lot about
blacks — and I don’t call them the word they called it, they
called it, it started with an N and I don’t, I don’t use that
word, I’m sorry — but they talked real bad about the blacks
and the Mexicans and they talked about how one (1) guy
got up and said that he would love to take a .30/.30 and
just random shoot the blacks and talked about how they
would like to send the blacks and the Mexicans back from
where they come from and talked about President Clinton
and Hillary Clinton and about the government funding
money for the, for the people that can’t afford housing and
stuff and if they, their tax, how their tax paying goes to
keep [135] the black people up and stuff like that.
Q Right. And how did this make you feel?
110
A It made me feel very, I was scared. I was, I was,
there was people down at the road hollering and then
them up there talking about stuff like that and, you know,
all these people were hollering that thought we had it in
our back yard because, see, they just brought our home
that week and set it down and they were hollering, they
don’t see how these people can move in...
MR. BAUGH: Object, Your Honor. We're now
going to statements from people who were not in the cally.
THE COURT: It sounds that way.
MR. GOAD: That would be a proper objection.
THE COURT: All right. Sustain the objection.
Q How did the burning of the cross make you feel?
A Oh, it made me feel awful. It, they all walked
around and then they would go in one (1) circle and say
things and then they would go around in [136] another
circle and say things and then they went up and all met at
the bottom of the cross and lit it and played Amazing
Grace and I tell you what, I was just, it was just terrible. It
was terrible to see, that, when they were talking about
random shooting black people and all, the guy that said it
and everything talked about killing people and then get up
there and seid that when he died, he knowed, that he was
a good Christian and when he died, he knowed he was
going to heaven and then to burn the cross like that, I just,
I just, I couldn’t begin to put in words how I felt. I cried, I
sat there and I cried. I didn’t know what was going to
happen between everything going on. It was just terrible.
Q You know, when you said earlier that you were
scared, what were you scared of?
111
. A I was scared our home would get burned or
thing would happen to it. We've got two (2) kids and I was
afraid that something would happen to them because
they're, they've got [137] their license, they're out by
theirself and, I mean, you know, for weeks after this
happened, we had trouble with people riding by, stopping
in ncn of the road, hollering white power and just,
- , we had an awful time and we didn’t know what
Q Right.
A And we was just afraid one (1) day we’d get up and
_ our house burned or get shot at or something, we didn’t
know what to expect.
Q How long did that feeling go on?
A It went on for at least, for a cou
, ple of months and
then after the cold, cold weather, you know, they got to
where that, it never failed that, every time we, like I said,
they just put our home in and we stayed outside working
on it a lot and when they would see us out, it seemed like
it would just start, every little bit, riding by hollering.
MR. BAUGH: Objection
again, Your Honor.
These are statements by people other than those at the
rally. [138] They should be excluded. We'd ask the jury to
be instructed to disregard.
THE COURT: Do you
C ene agree with that, Mr.
MR. GOAD: Yes, sir. She hadn’t said it
agree that it is a proper objection. ——
112
THE COURT: Members of the jury, the state-
ments attributed to other people after the rally, disregard
all those statements and don’t consider it in arriving at
your verdict.
Q O. K Answer any questions Mr. Baugh might
have.
Q Mrs. Sechrist, I’m David Baugh.
A Hi.
Q We've never met. Ma’am, when you said you were
afraid somebody might come burn your trailer, you were
afraid that the people who didn’t like the Klan were going
to come. Right?
[139]A No, sir.
Q Oh, you thought the Klan was going to come?
A Yes, sir. Anybody that can burn a cross like that, I,
and have so much hatred for people, I don’t, I don’t put
anything past them.
Q And this isn’t a stupid question.
Yes, sir.
It’s for the purpose of the record.
Yes, sir.
You're not black or Hispanic, are you?
> © > © PY
No, sir.
Q O. K. Now, you were there from four o'clock (4:00)
until, what time did they leave?
113
A I don’t, I have no, I don’t know. We were outside
and I didn’t have a clock. I don’t, it was late.
Q Ten (10:00), eleven o’clock (11:00) maybe?
Yes, sir. Somewhere around there. And the . . .
Did you have a car out there?
Did we have a car? No, sir.
How did you get there?
Our, walking. My mother-in-law lived right [140]
there near us.
> © > © >
Q You didn’t have a telephone yet, did you?
A No, sir. They just had set it down that week.
Q Ma’am, did you ever get so fearful that you and
your husband walked away?
A What do you mean — walked away?
Went up to your mother-in-law’s house?
Q
A Yes, sir. We...
Q Between four (4:00) and eleven (11:00), did you go?
A
Yes, sir.
Q You left? When were you gone between four (4:00)
and eleven (11:00)?
A Now, we sit on the bank right at our mother-in-
law's house the whole night. We was afraid to go, we was
afraid to leave after the law run them off.
Q
114
But, ma’am, didn’t your mother-in-law give them
permission to do, to have this thing?
A
Q
A
aunt?
Q
A
Q
A
Q
A
Q
A
Q
No, sir.
She didn’t sign a lease agreement?
No, sir. You’re talking about my husband’s [141]
Oh, I’m sorry. Forgive me.
Yeah.
All right.
No. My mother-in-law had nothing to do with this.
Who is, who is your husband’s aunt?
Anna Lee Sechrist.
She’s the owner of the property?
Yes, sir.
And it’s your understanding that Anna Lee
Sechrist gave the Klan permission to have this function on
her property?
A From what I heard.
Q Is she here?
A No, sir.
Q As you sit here now, do you know if the Klan did
anything out there that she didn’t know about?
A No, sir. But it was told...
115
Q O. K Now, and you say while they burned the
cross, they stopped doing the screaming and stuff about
black people and they started [142] singing Amazing
Grace?
A No, sir. They didn’t .. .
Q When did they sing Amazing Grace?
A They didn’t sing. They played it on the intercom
system.
Q Oh.
A It was just music.
Q All right. They played Amazing Grace?
A Yes, sir.
Q And let me guess, while they were burning the
cross, they weren't talking any more. They were listening
to the music?
A Yes, sir.
Q All right. And there was nothing threatening
about Amazing Grace, was there?
A While the cross was burning, I felt it was.
Do you think Amazing Grace is scary when .. .
No, sir.
Q
A
Q OK
A It’s the most beautiful song.
Q Yes indeed. Did you see the police out on the
street, on the road?
116
[143] A Well, it was dark and you couldn't tell, the
dark, you couldn’t see who was on the street.
Q Did you go complain to the police?
Yes, sir.
All right. You saw their blue lights flashing?
Yes, sir.
And when did you complain to the police?
When they had pulled up around our trailer.
And who is they?
Sheriff Manning and...
The question, ma’am, did you see the police out in
the street an hour and a half before the cross got burned?
o> Db > © > & >
A No, sir.
Q_ I will ask you specifically if you saw a light, if you
saw a car with a blue light on top of it on that road?
A No, sir.
Q Did you look out in the street to see what was out
there?
A You couldn’t tell what was out there. It was too
dark.
[144] Q You're telling me that from your trailer to
the road surface, if a police car was sitting out there with
its distinctive blue lights going around, you can’t see it?
117
A Well, at the road, the lights wasn’t going around
until they got pulled off to go u tow
po go up ard, up toward our
Q So if hypothetically someone were to come to court
and say that they put their police equipment up there an
hour and a half before the cross was burned and they
watched and they had their safi i
not a true statement? or
A Well, now, when they, before, right
, ; , bef
come over, they turned them on. teas —
Q No. The question was, if someone said that his
safety equipment was on, the blue lights .. .
A Yes, sir.
Q The car was parked an ho d
ae: ” ur and a half before the
A Yes, sir.
Q That would be a false, he he, th
(145) false statement? ial ae
A Yes, sir.
Q That someone was sitting with those lights on?
A Yes, sir.
Q All right. Now, of course, . . .
A Not with the lights blinking u kn
wasn't, the lights wasn’t blinking on. or lhe
Q Well, could you see a car parked out on the road?
A Yeah. Yeah.
118
Q And could you see that the car had a light rack on
top of it?
A No, sir.
Q Did anyone ever say anything threatening di-
rected toward you?
A No, sir.
Q So it’s your testimony that the hatred, we’ll say for
want of a better term, being exhibited made you uncom-
fortable?
A Yes, sir.
Q All right. And you’re uncomfortable by other
displays of hatred, aren't you?
[146]A Yes, sir.
Q I mean, if you seen this on television, it would
have disturbed you, wouldn’t it?
A Yes, sir.
Q And when you see things just men disliking other
men, it makes you uncomfortable, doesn’t it?
A Yes, sir.
Q Did, do you know whether or not the people who
were there that night - the Klanspeople, assuming they’re
all Klanspeople — do you know of your own knowledge
whether or not they asked Mrs. Annabell Sechrist, I’m
sorry I’m messing up your last name...
A That's okay.
119
Q Iknow I’m not the only one (1) who’s ever done it.
Do you know if those Klanspeople, if they were doing
anything that they hadn’t asked Annabell Sechrist per-
mission to do? Do you know that of your own knowledge?
A No, sir.
. Q Based on what you saw, your subjective opinion,
did you get the impression that these people [147] were
intentionally trying to scare you or were they j
: y just sa
things of hatred that made you scared? sais
A I think they were trying to scare me.
. Q All right. And what did they say that made you
think they were trying to scare you?
A Well, they were asking, they were asking Joey,
Anna Lee’s son, who we were and, and asked who our
mother-in-law and father-in-law was and all about us and,
I mean, if there wasn’t anything to do with us, I can’t see
why they cared who we were.
Q So they, because they asked you that, you thought
they were trying to threaten you?
A Yes, sir.
Q But they didn’t, when they asked you this, they
didn’t make any threatening statements to you, did they?
A No, sir.
Q So, I mean, and you’ve been asked who you are
before in your life?
A Yes, sir.
120
[148] Q So because you were being asked by Klans-
men, you perceived that as threatening?
A Yes, sir.
Q It isn’t what they said or the way they said it, it
was the fact that Klansmen said it?
A Yes, sir.
Do you dislike anybody?
No, sir.
You like everybody?
Yes, sir.
Even Rush Limbaugh?
Who?
Rush Limbaugh?
I don’t know who that is.
> © > © > © PP A
Q O. K. Pass the witness. I could tell you didn’t
know.
THE COURT: Any further questions?
MR. GOAD: Yes, sir. A few follow up.
[149] Q Anna Sechrist was the owner of the land
where the meeting was on?
A Yes, sir.
Q And her son is Joey?
121
A Yes, sir.
Q Allright. And where is your tract of land located?
A Right about, I'd say about thirty (30) foot from
where theirs starts.
Q Right. And so it’s adjacent to that?
Yes, sir.
All right. Now, who lives on the other side of you?
On the other side?
Right.
My mother-in-law and father-in-law.
> © > O >
Q And is that the location that you were at?
A Yes, sir.
Q You didn’t have anything to do with Anna Sechrist
or Joey Sechrist?
A No, sir.
Q O.K All right. Did you see any blue lights [150]
being turned on that night?
A Yes, sir.
Q And was that before or after the deputies first
came up to you?
A Before.
Q Right. And then was that when you made your
report to them, when they came up?
A Yes, sir.
122
Q And then was that also before the cross got
burned?
A No, sir. That was after the cross got burned.
Q When you made your report?
A Yes, sir.
Q What about the blue lights? Was that before the
A No, sir. It was after the cross.
Q After the cross. O. K. All right. Thank you. That’s
AND FURTHER THIS WITNESS SAID NOT.
MR. BAUGH: No further questions.
[151] THE COURT: All right. Do you plan to
recall this witness?
MR. GOAD: Possibly.
THE COURT: All right. We'll ask you to wait
then in the back area until you're recalled and don’t
discuss your testimony with anyone please.
[The witness, Rebecca Sechrist, is again excluded from
the courtroom and from the hearing of any of the matters
therein.)
THE COURT: Any further evidence?
MR. GOAD: No, sir. That would be our case.
THE COURT: Commonwealth rests. Members of
the jury, we’re going to take a recess at this time and don't
discuss the evidence or anything at this point, wait until
123
you hear the arguments of counsel. You may now retire
and make yourself comfortable and we'll take about fifteen
(15) minutes.
THE JURY RETIRES TO THE JURY ROOM, OUT OF
HEARING OF ANY MATTERS HELD IN THE COURT-
ROOM
[152] THE COURT: All right. The jury has
departed. Do I have any motions to come before the Court?
MR. BAUGH: Your Honor, we would have a
motion to strike. We would reassert all our previous
motions. I would tell the Court that now we see the prob-
lem with this statute and its lack of definition. The stan-
dard here is intent of a Defendant. As the Court is well
aware, the intimidation cannot be based upon some
sensibility of the person who feels threatened. It must be
actually directed with the intent to cause them to be
fearful.
All of this occurred on property where it appears there
was permission. Nothing appeared to have occurred, there
was no trespass. The lady said that, Mrs. Sechrist said the
reason that she was upset was not because of what was
said, but because of who was saying it and there’s the
problem. That’s the problem with this statute. That sort of
thing happens.
So for the reasons previously stated and the light that
the government must prove, even with their inferences
now, I understand there’s an inference that the burning of
a cross, however, that the burning of a cross is calculated
to intimidated, but this lady has now given [153] us
another alternative. This lady said that there were threats
going on, but when it came time for the cross to be burned,
124
everybody got quiet and they played Amazing Grace and
remember, the crime, going back to real basic law school, a
crime occurs when all of ths elements occur in the same
time and space. Therefore, the threat to intimidate and
the burning of the cross must occur in the same time and
space and they didn’t. When the cross was burning, they
were playing Amazing Grace.
Your Honor, I would submit that the government has
not met its burden of showing that the purpose of the
burning of the cross was to make people in fear of bodily
injury, even though not imminent, even though I’ve made
that objection previously, that was not the purpose.
Now, Your Honor, there’s a lot of discussion here about
Klansmen and robes and all that — and I’ve got trouble
with them, too — that doesn’t change the standards of the
law. It must be calculated to cause fear of bodily injury.
Your Honor, we now have from the government's witness a
different version and therefore they've lost their inference
with that witness and I’d make a motion to strike.
[154] THE COURT: Gentlemen?
MR. GOAD: Judge, of course, on the motion to
strike, the evidence is viewed in the light most favorable to
the Commonwealth. At this stage in the case, we have
presented sufficient evidence. You have the inference of
the statute which is very important and then you have to
look at the evidence of the case as a whole, you just can’t
say when this happened at one (1) time, this happened
thereafter, it’s all considered together.
In the case, you have the burning of the cross which is
the presumption of the intent to intimidate, during leading
up to the burning of the cross with the speeches, you have
125
specific direct language of, that we're going to take a
-30/.30 and shoot the black people, which, of course, that
wasn't what they said. The testimony was that they used
the N word and that they were going to shoot them ran-
domly. That further goes to the intent and then you have
the Defendant's own words that, after he was arrested, to
Investigator Clark, he said when is the white man going to
stand up to the — should they be in here?
THE COURT: No. They shouldn't.
MR. BAUGH: No. I had a question for th
Sheriff. You need to step out. ="
. MR. GOAD: And his own statements of when is
the white man going to stand up to the blacks and Mexi-
cans in this area and then you have the bit about the
blacks and Mexicans holding hands with the white women
along the sidewalks in this area.
So you have his own words. You have the presumption
of the cross. You have the let’s take a .30/.30 and shoot
them during the rally and then also you have the size of
the cross ~ twenty-five (25) to thirty (30) foot high. The
testimony is that they could have went on to a back section
of the property and where they would have not have been
seen and had this rally, but, no, they had it near the public
road in a flat area where the twenty-five (25) to thirty (30)
foot cross ~ which I think is also relevant on the issue of
intimidation, the height of it — so, in summary of all that
together, there is sufficient evidence.
THE COURT: You may close.
MR. BAUGH: Your Honor, I couldn’t let it pass —
the fact that the height of the cross has something to do
with the degree of intimidation. So if my client were to
126
[156] burn a smaller cross, it would be okay. Your Honor,
the problem with this sort of statute is that it lends itself
to people allowing their own prejudices to attack the
prejudices of others and that’s the problem with this
statute. It leaves vagueness as a standard.
They have not met their burden on the statute. We
move to strike.
THE COURT: All right, gentlemen. Thank you
for those observations. Considering the evidence in its
entirety, the Court is of the opinion that the evidence is
sufficient to withstand a motion to strike. I'm going to
deny your motion.
MR. BAUGH: Note my exception. We will call
Sheriff Manring. I’m sorry. I just thought of it. Sheriff
Manning please.
THE COURT: All right. We'll bring the jury
back.
MR. BAUGH: Thank you.
THE COURT: See if they've had enough time.
They may need another minute or two (2).
MR. BAUGH: Yes. We'll wait:
THE COURT: We promised them a little recess.
[157] Let’s take five (5) minutes of our own.
MR. BAUGH: Thank you, sir.
THE COURT STANDS IN RECESS
THE COURT: All right. Are we all back in the
courtroom?
127
MR. BAUGH: Yes, sir.
THE COURT: Is the jury ready?
BAILIFF: Yes, sir.
THE COURT: All right. Bring the jury in.
THE JURY RETURNS TO THE COURTROOM
THE COURT: All right. You
may be seated.
Commonwealth’s rested. Defendant have any evidence?
MR. BAUGH: Sheriff Manning please.
THE COURT: Yes. Sheriff Manni
ewer, Jat be ante end po Manan, youve ben
* * *
[158] SHERIFF H WARREN MANNIN:
L G, still bei
under his oath to tell the truth, the whole truth and
nothing but the truth, was recalled to the
; stan
examined and testified as follows: oon wm
Q Sheriff, a couple of ’
° questions. Y.
there that night, didn’t you? aw ay ce
A Yes, sir.
@ He was wearing the purple robe?
A I guess. I knew some kind of robe.
Q Was Mrs. Sechrist, Annabell Sechrist there?
A Yes, sir.
Q She's the property owner?
128
A Yes, sir.
Q She was sitting around while the cross was being
burned, wasn’t she?
A Yes, sir.
Q And it is her property?
A Yes, sir. Best of my, best of my knowledge.
Q And she was a participant, it would appear, Le
[159] the rally in which a cross was burned. Am I correct?
MR. GOAD: Objection. Speculation.
MR. BAUGH: Withdrawn. Rephrase.
THE COURT: All right.
Q Was she sitting within fifty (50), a hundred (100)
feet of where this fire was burning?
A Probably. |
Q Was she pointed towards what was going on?
A Yes. The best I could tell.
Q@ And she has trouble with her mobility, doesn’t
she?
A The only thing I know is she was sitting down.
That’s the first time I ever met her.
Q Did you ever go over and talk to her about this
event because it was her property?
A No. I think she, if I’m not mistaken, she hollered
at me and I think she got up, I’m not for sure, but she did
say words to me.
129
Q And she said it was public property, private [160]
property.
A_ Said they had permission.
Q She said the Klan had permission to do this?
A Right. She did.
Q And at that time you didn’t know who the wizard
was — when she made that statement? Am I correct?
A He had done came up and told me and then she
started. I think that’s the way it was.
Q As the owner of the property who was condoning
the burning of this cross, in your estimation had she
violated the law?
MR. GOAD: Objection. That’s not relevant.
MR. BAUGH: It is, Your Honor. If, I mean, my,
my client’s intent in burning the cross is an issue, if he has
permission and he doesn’t think he’s doing anything wrong
and the owner’s right there, that would certainly mitigate.
We're not talking about sneaking into somebody's back
yard and burning a cross.
THE COURT: Any further comment?
MR. GOAD: Judge, the fact that she may have
[161] consented to the rally doesn’t have anything to do
with what the Defendant’s intent was — which is what the
issue is in this case. She hasn’t been charged. We're only
here with what the Defendant did. What she may or may
not have done is not relevant.
MR. BAUGH: Your Honor, the statute says if
you burn it yourself or you cause it to be burned and under
130
our statute if you aid and abet in the burning. She aided
and abetted in the burning. She is an older woman. She
wasn’t arrested. I believe that is germane to the issue of
mitigation. He gets arrested. The other person doesn’t.
And further, I would submit that his coming forward, I
think the jury will reasonably infer the reason he came
forward and offered to be arrested was because she was in
trouble.
MR. GOAD: Objection. There’s no evidence of
that and mitigation is not for this stage either.
THE COURT: I sustain the objection.
MR. BAUGH: Note my exception.
THE COURT: Yes, sir.
2 When you got my client downtown to be booked,
[162] was he still in his robes?
A No.
Q I want
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