Before I go any further I don't want to make it sound like I am defending Fields beliefs or actions prior to this incident. I find white nationalism repulsive and I do not support him or the leaders of the Charlottesville rally. But even if his beliefs are repulsive, he still is entitled to a fair trial and has the same rights as anyone else. And I think people should know what his defense will probably be at trial, if the case gets to that point. There is a good chance that this isn't what happened, and I am not arguing that it was, but I do think that this is probably the defense Fields will use. Keep in mind though that I am not a lawyer and this isn't legal advice. There is a possibility that I am getting the law wrong here.
In my original post on the subject, I said that the fact that Fields was charged with 2nd degree murder was very significant. Why? Because the ways Virginia law works. Virginia has three levels of murder with 2nd degree being the least serious. 2nd degree murder is a catch-all offense that covers all murders that aren't enhanced to the level of 1st degree or capital murder with special circumstances and doesn't count as manslaughter.
Though there are other circumstances that could elevate it to 1st or capital, the factor that is obviously missing in this case is premeditation. A planned murder or terrorist attack would obviously be charged as 1st degree murder. Since he was charged with 2nd degree murder we can categorically say that this isn't a premeditated attack.
That, of course, doesn't mean that this wasn't a deliberate attack, just not a planned one. But I am starting to think there may have arguably been mitigating circumstances that will be used in defense of Fields. How is that even possible? Well close analysis of the various videos taken during the incident may show that James Fields was under attack by the protesters before the ramming occurred. Let's look at the video:
A close examination of the video shows that the car approached at a high rate of speed but then slowed down. I made a screen cap of the car and you can clearly see that the Charger's brake lights were on:
Later in the video it appears that someone hit the Charger with what appears to be a flagpole. This occurs right before Fields rams into the crowd. You can also see that the brake lights are off at this point.
In a second video from a different angle shows that after the crash ended, the protesters were swarming the car and starting to attack it. (GRAPHIC CONTENT)
It appears that a counter narrative is emerging. Let's set up a scenario: Fields is trying to leave the rally after a days worth of fighting between antifa and the various right wing groups that made up the rally. He comes a close a crowded road filled with antifa and without any support from either his white nationalist freinds or the police. One of those antifa attackers hit his car with flagpole.
Fields, no doubt remembering how violent the antifa were being during the rally and perhaps thinking of Reginald Denny fears for his life. He panics and hits the gas, hitting a few of the protesters, killing Heather Heyer. His vehicle comes under further attack, so he slams it into reverse, hitting more protesters who were currently attacking his car.
You know what this sounds like? Reasonable doubt. Virginia, like all US States has laws on self defense. If this scenario is correct then I think that Fields lawyers will argue in court that he had a reasonable fear for his life. They will argue that he thought he was under attack by the rioters and had a good chance of getting killed.
What the Jury will decide, assuming he doesn't plead out, is if that belief was justified or not. They also have to decide if the threat against Fields was imminent or not and if he was at risk for serious injury or death. Finally, they have to decide if the level of response was excessive or not.
What do I think of this possible scenario? It's going to be a real question on if the action was justified even if he was under attack. I think he probably was at risk for great bodily harm or death had those Antifa people had gotten to him. It looked like they were attacking him even before he charged into the crowd.
The real question is though is if he is justified in running over people that weren't attacking him to get away from the people that were. And for this I am just not sure. Honestly his case would have been stronger if he had only ran over the guy hitting his car, but he didn't do that. This seems more like running over a whole group of people when only one was attacking.
We also have to consider that Virginia has a "stand your ground" law. It states that you do not have a duty to retreat. That seems to be a huge consideration because there was obviously an escape route that Fields could have used. Instead of charging deeper into the crowd, he could have stopped and hit reverse. He might have still hurt people, but it would have made claims of self defense more palatable to the public and the woman that died, Heather Heyer would likely still be alive. As it stands right now, the fact that he charged forward instead of back shouldn't be an issue, even if it seems like a glaring issue. If he does invoke "stand your ground" expect a media frenzy similar to the George Zimmerman trial, which, ironically enough, never used the defense.
The question for the lawyers and jurors is going to be whether or not it is justified to endanger dozens of lives to protect yourself from one person that you think might be killing you. That's a legal question that I don't know the answer for and nobody can really predict what a jury is going to do.
But I don't know what other kind of defense Fields would have. There isn't any question that he was the one responsible for the attack. Insanity isn't a likely defense either, and he isn't likely to get a jury sympathetic enough for nullification. If he has any defense at all, it will have to be self defense.
There are some other things that could obviously torpedo this defense before anything else happens. If Fields confesses that he wasn't acting in self defense then he is done. If he did something like threaten the antifa rioters it goes from self defense to mutual combat. If he said things online or in person about how antifa and other protesters deserve violence then he is probably screwed. Another question is why he decided to go down to that street. I don't know the layout of Charlottesville at all, so it's very possible that he had no reason to be there if he was trying to leave, though it is also possible he was just lost.
Still, there is the possibility that this line of defense will work for Fields. All he needs is one juror that thinks that his life was at risk and he's got a hung jury. It's also possible that he could be convicted of a lesser charge, like manslaughter. I will leave the question of whether or not that it should work up to others.
I will say that the media is, once again, being irresponsible for not mentioning the possibility of this defense. I understand that doing so is politically incorrect and even dangerous, but if the defense is raised and is successful than the reaction will be fury and violence, which could be mitigated if people are informed of the possibility as soon as possible. I think that preventing violence should be a primary goal and we need to explain to people that there is a real possibility of acquittal...
I also want to say that even if Fields uses this argument, it's clear that his judgement was horrible. Even if he was in fear for his life, the correct action wasn't to charge further into the crowd. He will make the argument that it was legally justified under Virginia law, and as the law is written he might have a point. That doesn't mean that he should have done what he did when all he needed to do to escape was put the car in reverse. And if he actually did attack these people intentionally and will raise this defense anyways than he's an utter bastard for refusing to take responsibility for his actions...
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