Durham Prosecutors Went 0-for-Three in the Confederate Monument Case. Will They Have Better Luck Next Time? | Durham County | Indy Week

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Durham Prosecutors Went 0-for-Three in the Confederate Monument Case. Will They Have Better Luck Next Time?



Update: After the INDY went to press, Durham County District Attorney Roger Echols announced his office would drop all charges against the five remaining defendants accused in the toppling of the Confederate monument, and dismiss a deferred prosecution deal previously accepted by one defendant. Read more about the announcement here.

Six months ago, the Durham County Sheriff's Office announced an aggressive pursuit of protesters who took part in dismantling a Confederate monument in front of the county administration building, charging twelve people with not only damaging the statue but also inciting a riot, which is a felony. In November, the District Attorney's Office dropped all charges against three of those people. In January, the remaining defendants saw their felony charges dropped.

And then, on Monday, the state was unable to prove that the first three defendants to go to trial had anything to do with the actual crime.

Judge Fred Battaglia dismissed cases against Dante Strobino and Peter Gilbert and found Raul Jimenez not guilty. They had faced charges of injury to real property, defacing public property, and conspiracy to deface public property, all misdemeanors. After eight hours in court, Battaglia decided to call it a day and hear cases against the five other defendants on April 2.

"This is a reminder that tearing down monuments to white supremacy is not a crime," Jimenez said.

The prosecution presented just two videos of the August 14 incident—although probably dozens exist between cell-phone footage and video taken by sheriff's deputies. Neither clip was enough to support witness testimony that the defendants had participated in damaging the monument or the argument prosecutor Ameshia Cooper made that "this is a case about organized destruction."

One video was taken by Stacy Murphy, who happened upon the rally—which was held in response to a violent white supremacist gathering in Charlottesville the weekend before—while driving with her son on Main Street. But the video used in court wasn't Murphy's original footage, but rather a version published by The Washington Post that may or may not have been edited, raising questions about whether it could be entered as evidence. The second video was taken by Ed Miller, the county's security manager, who went to the county building to monitor the protest and started filming on his phone when he saw a ladder part the crowd.

Miller identified Gilbert in the video and stills pulled from it, but Battaglia disagreed.

"I don't identify the defendant in the video. I don't identify the defendant in this picture because I don't have facial recognition," he said.

A photo taken of the driver of a limousine with a ladder on top that deputies followed after the statue went down was similarly unhelpful. According to testimony from Lieutenant John Pinner, the vehicle was registered to Elena Everett, another defendant. A deputy took a photo of the person driving the limo, whom Pinner identified as Everett.

"I couldn't see the face. ... I'm not even sure I could make out it was a vehicle. Most of it was dark," Battaglia said.

The prosecution tried to link Gilbert and Strobino to that ladder, and in turn to Everett, to show they had conspired to topple the statue. But again, Battaglia didn't bite, saying it hadn't been established that Everett was part of a plot to destroy property.

"You can't have conspiracy to commit an act after the act was committed. I don't know if this is the same ladder. I don't know if the person was there," Battaglia said. "All I have is a ladder."

Defense attorney Scott Holmes questioned whether the witnesses' identification of defendants in the videos was credible, especially since they had never met the defendants in person. The point was dramatically illustrated when Miller, answering a question from Holmes, said he didn't think Cooper resembled another woman in the room, whom Holmes later identified as her twin sister.

Holmes also argued that the statue's presence violated the Thirteenth and Fourteenth Amendments and a state law that prohibits using public buildings to advocate for the overthrow of the government, as the Confederacy did in trying to secede.

"We're not here about a monument. We're here about government hate speech," he said.

But Battaglia made it clear his decisions were based on whether he had seen enough evidence that the defendants took part in damaging the monument, not whether destroying the monument was justified.

"Where does one draw the line?" Battaglia asked before finding Jimenez not guilty. "Is it a subjective line in the sand? Is it based on emotion? Those are the issues of our day. The issue in this case is whether or not this defendant is guilty or not of this charge."

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