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Does It Serve The Public Interest To Prosecute Those Protesting Confederate Monuments?

In my last blog post, I slammed a local attorney for playing fast and loose with facts and advocating the prosecution of public defenders who spray painted a confederate monument. Since that post, I’ve had a couple of attorneys reach out to me in good faith who thought that I was too flippant in dismissing criticism of the spray painting as “pearl clutching.”

I’m happy to engage with people who want to have an intellectually honest discussion so I felt compelled to follow up. It’s true that people cannot feel free to simply disregard laws because they feel that something is unfair or wrong. While I personally feel that confederate symbols in our cities are deeply offensive, it does not logically flow that anything goes when it comes to destroying them. So it’s perfectly fair to have a conversation based on facts about whether the public defenders should be prosecuted for spray painting them.

So I’ll start the conversation by placing myself in the position of a prosecutor deciding on a course of action. The first thing we need to do is agree on the facts of what occurred. The evidence appears to show multiple identifiable public defenders among a large crowd actively engaged in spray painting “BLM” on confederate monuments at 2:00 in the afternoon. There are multiple law enforcement officers present who make no effort to intervene. Have the public defenders committed a crime that should be prosecuted?

We’ve written previously about prosecutorial discretion. Commonwealth Attorneys as elected officials have wide latitude to pick and choose what they want to prosecute. For the sake of this thought exercise, I’ll place myself in the position of a prosecutor who is deeply disturbed by the public defenders' behavior and is actively seeking justification to charge them.

My first concern as the prosecutor would be that the defense will argue that the police were tacitly blessing the spray painting by not intervening. The destruction of property law 18.2-137(B) requires proving an intentional destruction of property. You can’t destroy property with a criminal intent if you reasonably believe that you had permission to destroy it. For instance, if I give a kid a rock and tell him that he has permission to wing it through my window, I can’t complain when he does. Of course, as the prosecutor, I would be arguing that police and/or politicians don’t have legal authority to grant permission to deface property. They’re not the owners. Moreover, there is no evidence that anybody explicitly gave the public defenders permission to deface the monuments.

My second concern as the prosecutor would be whether I could prove that the public defenders committed an intentional destruction of property versus an unlawful destruction of property. An unlawful destruction of property under 18.2-137(A) is only a class 3 misdemeanor punishable by no jail time and a $500 fine. An intentional destruction of property under 18.2-137(B) is a class 1 misdemeanor punishable by up to 12 months in jail. So what's the difference between unlawful and intentional destruction? As a prosecutor, I would have to be aware that the line between the two is extremely blurry. The Court of Appeals has held that unlawful destruction applies to criminally negligent conduct while intentional destruction has a higher level of mens rea. If the case went to a jury, a competent defense attorney would likely get a lesser included jury instruction on unlawful destruction and muddy the waters.

My third and largest concern as the prosecutor would be that it would be extremely difficult to obtain a conviction. In order to get a conviction from a jury, I would need to unanimously convince 7 jurors in a misdemeanor trial that the evidence proved beyond a reasonable doubt that the public defenders committed a criminal act. Jurors aren't robots. It is highly likely that the jury pool would include many people intensely sympathetic to the cause of protesting confederate monuments. And that’s not even taking into account that there would be legitimate problems proving criminal intent even in front of a prosecution friendly jury.

Yet another factor to weigh is that even if I overcame all hurdles and managed to convince a jury to find the public defenders guilty beyond a reasonable doubt, there is a good chance that the charge would ultimately be dismissed anyway. Unlawful destruction of property allows dismissal with payment of restitution. Misdemeanor intentional destruction of property can be dismissed on terms pursuant to 19.2-303.2. As a responsible steward of taxpayer money and my office’s resources, I would have the responsibility to ask whether the investment of manpower required to prosecute would be worth it.

So as a prosecutor, this is the summary of what I’m looking at:

  1. Legitimate legal questions regarding whether I can prove mens rea

  2. Multiple trials and a large investment of office manpower and resources

  3. Defendants engaged in a cause that many view as righteous

  4. Uphill path to convincing a jury to return a guilty verdict

  5. Strong possibility of ultimate dismissal even if I overcome the odds

  6. Almost certainty that prosecution will be highly controversial and serve to rip open festering racial wounds in the city

  7. Defendants with no prior record who have devoted their careers to providing legal assistance to the poor

Even as a prosecutor aggressively looking for a reason to prosecute, I could not responsibly go forward with charges in that scenario. To do so would be self indulgent political theater that would detract from my office’s legitimate mission of prosecuting serious crime and protecting the citizens of the city. ​Also to make clear, I'm not that hypothetical aggressive prosecutor. My personal view is that what the PDs did was a safe and appropriate way of expressing solidarity with the community they serve. We become defined by the battles we pick. Something tells me that picking a fight against people of good conscience protesting morally abhorrent confederate monuments is not going to place you on the right side of history.

That’s my useless two cents. I’m obviously not elected by anybody, and I don’t even live in Portsmouth. Anybody is absolutely entitled to disagree with me. But let’s strive to have a conversation that is factually and intellectually honest. And reject those who seek to gain political advantage through dishonesty and demagoguery.

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