# Joint Appendix — Virginia v. Black > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Joint Appendix - **Published:** January 1, 2003 - **Citation:** 538 U.S. 343 ## Text 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0537%3A07. Public record. Not legal advice.