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Challenge to Expert Testimony Rejected in Lawsuit Against Unite the Right Organizers

Written on Monday, May 24th, 2021 by T.C. Kelly
Filed under: Expert Opinions, ExpertWitness, In the News

A Unite the Right rally in Charlottesville during August 2017 brought together several white nationalist groups, much to the dismay of Charlottesville residents who support the American values of diversity and equal rights for all. The groups made Charlottesville a target because city leaders planned to remove a statute of Robert E. Lee.

Hundreds of white nationalists carried torches while chanting anti-Semitic, homophobic, and racially offensive slogans. Dozens of people were injured by mob violence. One participant in the rally drove a car into a group of counter-protestors, killing a 32-year-old woman and injuring more than 30 others. He was later convicted of federal hate crimes and sentenced to life in prison.

In the aftermath of the rally, ten injury victims sued individuals and organizations who organized the rally. The lawsuit was filed in federal court in the Western District of Virginia. The suit alleges that the defendants “joined together for the purposes of inciting violence and instilling fear within the community of Charlottesville and beyond.” The lawsuit is premised on a conspiracy to violate the civil rights of the plaintiffs. The case has been set for trial in October 2021.

Expert Opinions

The plaintiffs intend to call two expert witnesses to testify about strategies used by white supremacist organizations as a shield against accountability. The experts, Kathleen Blee and Peter Simi, are sociology professors who study white supremacy. The plaintiffs want to educate the jury with expert opinions about strategies of “double-speak” or “just joking” that white supremacist organizations and their adherents use to create “plausible deniability when conveying certain racist or violent messages.” The experts also “intend to testify that certain communications between Defendants and online comments they made were consistent with those strategies.”

In the words of plaintiffs’ counsel, Blee and Simi drew upon their research and scholarship “to describe a distinct white supremacist culture that, throughout its lengthy history, has informed the (often coded) language, tactics, and symbols of those who are immersed in that culture.” As summarized by the court, the experts drew these conclusions:

  • The white supremacist movement (WSM) “has consistently utilized, supported, and glorified violence as a strategy to promote its message and secure white supremacy.”
  • The defendants “were active in and knowledgeable about the culture and networks of the WSM prior to [Unite the Right].”
  • Unite the Right “was organized to promote the agenda of the WSM.”
  • The defendants organized Unite the Right by using “the cultural symbols, rituals, slogans, language, and references to historical figures that are the hallmarks of the WSM.”
  • The defendants “shaped and made use of WSM culture and networks to recruit participants and to plan and execute [Unite the Right].”
  • The “coordinated race-based violence facilitated and committed by Defendants at [Unite the Right] is emblematic of WSM tactics.”
  • The defendants employed a coordinated strategy to obfuscate their aims through the use of “double-speak, front-stage/back-stage behavior, and a discrete and new-age communication platform.”

Some of the defendants moved to exclude the expert testimony. The district court judge denied that motion.

The court was puzzled by the defendants’ failure to articulate a clear theory for excluding the expert testimony. They did not challenge the qualifications of Blee and Simi to form the proffered opinions. They did not challenge the methodology employed by the experts or the reliability of their conclusions. Instead, they raised three challenges that, in the district court’s view, lacked merit.

Double-Speak

Blee and Simi explained that “double-speak” is a way of communicating coded meaning to members of the WSM through messages that appear to have an innocuous meaning to outsiders. They cited Pepe the Frog as an example. Pepe the Frog is an internet meme that was used on blog and internet forums to communicate surprise, anger, and other emotions. Blee and Simi explained that the WSM appropriated Pepe the Frog “to signify the ideas of racism and anti-Semitism,” though “outside of white supremacism, Pepe lacks those connotations.”

Blee and Simi also explained that certain organizations, including the American Identity Movement and Patriot Front, used rebranding strategies to conceal their true agenda, allowing them to recruit more freely on college campuses and among mainstream college campuses. They cite the replacement of swastikas with business suits as an example.

Relying on social science research, Blee and Simi explain how jokes are circulated among the WSM to communicate ideas to movement members, including the advocacy of violence, that are obscure to outsiders. The ability to say “just joking” preserves the ability to deny the advocacy of race-based violence.

The defendants argued that the expert opinions usurped the jury’s function by telling the jury how to interpret the intent underlying the defendants’ communications. The court rejected that argument. It noted that courts “routinely admit expert testimony explaining the meaning of complex, obscure, or coded language to juries.” Expert testimony about coded language is particularly common in criminal trials, where police officers who base opinions on considerably less social science research purport to explain drug jargon and gang references.

Expert testimony is also admissible to explain “the history, structure, leaders, or operations of an unfamiliar organization or subculture.” While court discussions discussing that testimony have again focused primarily on criminal gangs and terrorist organizations, the decisions are equally applicable to the obscure organizations that comprise the WSM.

The defendants also argued that the expert opinions were not relevant to any issue. The court determined that the testimony was relevant because it was directly tied to the facts of the case. Bree and Simi provided a detailed explanation of how Unite the Right organizers used double-speak in public communications to attract individuals with a violent agenda to their rally while using private communications (including “burner phones”) to coordinate violent and illegal activities in secret. Bree and Simi explained how public expressions of the right to exercise self-defense were part of a false narrative that was used as a pretext for violence. They also explained how “joking” references to violence and the use of the Confederate flag as a recruiting symbol communicated a violent purpose underlying the rally.

Because the proffered testimony is “not only helpful but necessary for jurors to have an informed understanding of language” used by the defendants, it is admissible. The testimony does not tell the jury how to decide the case. The testimony might, if believed by jurors, guide the jury’s understanding of the defendants’ intent, but the defendants are free to introduce evidence of alternative explanations. “The fact that Plaintiffs’ experts’ interpretation may be different from Defendants’ does not render it improper.”

References to White Supremacist Movement

The defendants argued that the experts should not be allowed to use the phrase “white supremacist movement.” In their view, the term implied an organized effort or a conspiracy. The court noted that the defendants did not invent the phrase WSM. Their characterization of the beliefs and goals that unite the defendants is relevant to the plaintiffs’ conspiracy allegations. The defendants are free to dispute the characterization, but they made no convincing argument that expert testimony using the phrase would be unfair to them.

The defendants also objected to “testimony regarding certain traits, methods, or characteristics shared by various white supremacist groups,” including the embrace of violence to achieve a white-dominant society. The experts’ proposed testimony provided a context that would help the jury understand the shared beliefs of WSM adherents. The expert testimony was therefore relevant to prove that the defendants intentionally conspired with each other to violate the civil rights of nonwhites.

Nor would it be unfairly prejudicial to the defendants to discuss belief systems that jurors might find abhorrent. If abhorrent beliefs motivated the conspiracy, it isn’t unfair to discuss those beliefs at trial.

Comments Upon Credibility

Finally, the defendants argued that the expert testimony would improperly comment upon the credibility of the defendants, some of whom may characterize the Unite the Right rally in non-conspiratorial terms. The plaintiffs advised the court that the experts would not comment upon the credibility of any defendant.

The court noted that the defendants are free to deny participating in a conspiracy to violate civil rights. The jury will then decide whether the defendants’ behavior suggests their joint support of the WSM. Expert testimony about the beliefs and goals of WSM adherents is not a comment upon the credibility of the defendants. The expert testimony is therefore admissible.

 

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.