There was a crowd. Spectators, demonstrators, media and law enforcement were all taking photos and video on a warm August night as a Durham demonstration went from chanting to toppling a statue.
One of the demonstrators, Takiyah Thompson did an interview with Democracy Now, an independent broadcast program, two days after the toppling. She said in the interview she participated in a march and rally.
“And I decided to climb to the top of the Confederate soldier’s statue and put the rope around its neck and throw the rope down to the crowd,” she told Democracy Now. “And the crowd could decide if they wanted to pull it down or not. And I did this because the statue is a symbol of nationalism, and it’s a symbol of white nationalism.”
So, how did the cases against Thompson and the 11 others who were charged with three misdemeanors collapse?
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There is no single answer, legal experts said Wednesday.
On Monday, District Court Judge Fred Battaglia dismissed the charges for insufficient evidence against Peter Gilbert and Dante Strobino. In a third trial, the judge found Raul Mauro Jimenez not guilty.
They all faced charges of injury to real property, defacing a public building or monument and conspiracy to deface a public building or monument.
Even before Monday’s court session, District Attorney Roger Echols had dismissed charges against three other people, citing a lack of evidence.
Then Tuesday, Echols held a press conference to announce he was dropping the charges against the five remaining defendants because his office had no more evidence than what had failed to convict Monday’s defendants. He took no questions.
During the three trials Monday, Assistant District Attorney Ameshia Cooper struggled to clearly identify and connect defendants in the courtroom with those in a video taken by Durham County security manager Edward Miller and to prove that their actions damaged the statue.
Miller was standing on the steps of the Durham County’s historic East Main Street courthouse and current administration building, recording with his cell phone.
The video shows two individuals carrying a ladder and putting it at the base of the Confederate statue as people chant “You can’t stop the revolution.” Thompson climbs a few rungs and pauses as someone brings her a yellow strap.
Thompson takes the top of the strap, climbs the ladder and loops it around the bronze statue. The bottom of the strap is handled by a few people on the ground, before it moves outside of the shot and the statue is pulled down.
The video doesn’t show clearly who was pulling the strap that brought the statue down.
In the first two cases, Miller introduced the video as illustrative evidence.
“Illustrative evidence is evidence that helps explains someone’s testimony, but is not itself evidence from which you can draw a specific fact,” or conclusion, said Seth Blum, a Raleigh attorney and adjunct professor of law at UNC.
In the third trial, Cooper went through the legal procedures to get the evidence introduced as substantive evidence, which goes directly toward a fact that matters in the case.
“The state has the responsibility of presenting evidence that is convincing to the judge that each individual [is] engaged in the specific conduct that caused the toppling of the statue,” that was public property, said Irving Joyner, a law professor at N.C. Central University. “It seems simple, but isn’t necessarily simple.”
In the third trial, Miller said the the video showed defendant, Raul Jimenez, holding the ladder and handing the rope to Thompson.
“Did that pull the statue down?” Joyner said. “That is what has to be established. Not that the person was there. Not that the person engaged in some other conduct, but did they engage in that specific conduct that caused the statue to come down.”
The charges included conspiracy, but Joyner said a prosecutor needs actual evidence that says “at some point there was a meeting of the minds between those individuals which said we are going to do this for the purpose of pulling down the statue,” he said.
Cooper appeared to argue that since they defendants appeared to be working together that proved the conspiracy.
“You need more than that,” Joyner said. “It only shows that these people were at the same place together. This is what A did. This is what B did. This is what C did. And at the end of the process the statue came tumbling down. It doesn’t say that A,B,C, got together and decided that this is what they are going to do. It can get technical.”
You need something more specific, like a text, email or other statement showing they planned to engage in conduct for criminal purposes, he said.
Joyner said the prosecutor threw the case off by painting it as a big conspiracy “and fell short on the proving side.”
In the first trial, Cooper showed Strobino was present, but failed to connect him to the toppling. In the second trial, Miller did identify him as the one in the blue shirt in the video, but didn’t clearly say he was one of the people who handled the rope, the judge said.
In the third trial, in which the prosecutor had the strongest evidence, Miller identified Jimenez as holding the ladder and helping with the rope.
However, it showed, he was “at best, tangentially involved,” said Daniel Meier, a Durham defense attorney.
While Miller identified Jimenez, defense attorney Scott Holmes, who represented all those charged, said during his closing arguments that cross-racial identification is unreliable, a point he demonstrated in court by asking Miller if Cooper and another woman looked similar.
Miller said no.
The women are identical twins.
“We heard from the state’s own witness that identified my client in the video who said that this person does not look like this person, her twin sister,” Holmes said.
That exchange could have undermined the credibility of the witness testimony, said UNC-Chapel Hill law Professor Carissa Hessick.
“And made it seem as though you could not rely on his eyewitness identification because he blew another eyewitness identification in the courtroom,” she said.
If Cooper had started with Thompson’s case first, she might have been more successful, Meier said.
“There was no dispute she climbed the statue. There was no dispute she helped push it over. And there was no dispute who she was because she gave a bunch of interviews saying ‘This is who I am, and I am proud of what I did,” he said.
The case also raises the question of why there wasn’t more evidence, Meier said, pointing to all the law enforcement and media presence, along with many people taking video on their cell phones.
Cooper introduced two videos: Miller’s and one taken by a Durham resident and picked up and edited by The Washington Post.
“If that was all the evidence you had, (that raises the question of) why didn’t you have more,” Meier said.