Judge Tells Durham GOP Why He Didn't Convict Protesters Charged with Toppling a Confederate Monument | News
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Friday, March 9, 2018

Judge Tells Durham GOP Why He Didn't Convict Protesters Charged with Toppling a Confederate Monument

Posted by on Fri, Mar 9, 2018 at 2:40 PM

"I'm going to talk about the elephant in the room right now," Durham County District Court Judge Fred Battaglia Jr. told a crowd of thirty-plus people Thursday night.
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Battaglia wasn't talking about the starred elephant on the Durham County Republican Party banner hanging on a wall to his left. Instead, he was referring to why—given the abundance of video taken showing protesters pulling down a Confederate monument in Durham last summer and speaking about it to the press—he was unable to convict anyone accused of damaging the statue during trials last month.

Battaglia said he offered to speak to the GOP. "As an elected official, you should be seen," he told the INDY, adding that he planned to attend a People's Alliance event too.

He came to explain what this group saw not only as a failure of the county's criminal justice system but also a concession to lawlessness.

"I hope you'll be less upset when you leave," he said.

Although Battaglia maintained that he was "not blaming anyone," his talk seemed to shift audience members' frustrations away from him and toward other players in the criminal justice system. He said his decisions were based solely on the evidence—or lack of evidence—presented in court and stood by his rulings.

It's not so strange that members of the county GOP had questions about the rulings—the proceedings were somewhat baffling (more on that later). What was unusual was hearing a judge discuss cases while not on the bench, particularly to a political organization that represents about 13 percent of Durham County's registered voters.

First, some background. While Durham's Confederate monument was dedicated to "the boys who wore the gray," it was unveiled in 1924—six decades after the end of the Civil War. Like many of the nation's other Confederate monuments, it was put up at the height of Jim Crow under the direction of a Ku Klux Klan supporter amid the hate group's return to national prominence.

While 61 percent of North Carolina voters believe Confederate monuments should stay put, there was widespread support in Durham for the monument's removal, including among elected and appointed officials and political organizations. North Carolina law prohibits the permanent removal of objects of remembrance like Confederate monuments, meaning that, with limited exceptions, there was no legal recourse for the county to have it removed.

Initially, a dozen people had been charged with damaging the monument, the base of which still stands in front of a county administration building on Main Street that once served as the county courthouse. But as trials approached, three people saw their charges dropped altogether, and the entire group saw felony charges for inciting a riot dismissed.
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Of the three people Battaglia tried during eight hours of court proceedings last month, he dismissed the cases against two and found a third not guilty. The next day, District Attorney Roger Echols dismissed the remaining pending cases, saying "all of the admissible evidence" had been presented in Battaglia's court.

Battaglia was guarded in many of his answers Thursday but gave glimpses into his personal views. After spotting a WUNC reporter's radio equipment, he forbid her and two other reporters in the crowd from recording his remarks. He told the INDY after it was probably the "first and last" time he would appear before a group to discuss a ruling.

The crowd may have come in angry with him, but by the end of the night—after running through the evidence, repeatedly stating his complete support for law enforcement, complimenting Herald-Sun crime and courts reporter Virginia Bridges, telling stories about his Sunday school students, decrying the backlog of pending murder cases in Durham County, mentioning his "country" upbringing and the Remington he owns, and affirming that people should let their voices be heard but "do it in a lawful manner"—they gave him a round of applause.

Battaglia clarified why he didn't try all eight defendants at once—the courts are "not set up" for that, he said, and it would have taken weeks. He did not choose the order in which defendants were tried.

Two videos shown during the trial were admitted for illustrative purposes only, meaning they could only be used to illustrate a witness's testimony. The first video—taken by a woman who happened upon the protest while driving on Main Street—was shaky, he said. (He didn't mention this Thursday, but the version shown also wasn't the original footage, but rather a version published by The Washington Post that may or may not have been cut for length.)

The second video was taken by the county's security manager, who was behind the statue when it came down, so the footage only showed "the back of people's heads." (Again, this didn't come up Thursday, but a security camera that would normally record the monument was blocked at the time by temporary scaffolding.)

Neither video clearly showed any of the three defendants, Battaglia said, although they clearly showed plenty of other people were filming or taking pictures.

"One person you could clearly see was Ms. Thompson," he said, referring to Takiyah Thompson, who climbed the statue. But Thompson wasn't tried before Echols dismissed the charges.

As for why no other evidence was submitted, Battaglia said he couldn't and won't speculate.

"I don't know how much effort it takes to issue a subpoena for video," he said, adding that he doesn't blame law enforcement.

Michael Hale Gray, a longtime polling official, was among those who wondered why the many videos he saw of the monument being pulled down weren't part of the trial.

"Like a lot of people, I was upset with all the stuff that we saw," he said. "There's tons of evidence, but it appears somebody dropped the ball. By the time it came to Judge Battaglia, someone had deflated the football."

Battaglia suggested the case faltered with the District Attorney's office. He said assistant district attorney Ameshia Cooper, who prosecuted the cases, is a "lovely person with very little experience."

"Is your witness going to identify the defendant ten feet away?" he told the crowd. "It was never done ... Neither one in the first two trials is asked to identify the defendant."

Battaglia pointed out that Echols wasn't present, "just a young lady in there with no help."

"She's a nice lady," he said, "but you can't go into the NCAA tournament with your third string."

Throughout the evening, he made mention of the ninety-two pending murder cases in Durham County. He highlighted a few cases in which charges had been dismissed before the defendant got to trial and made what seemed to be a reference to the 2015 acquittal of a Durham man who said he was sleepwalking when he killed his son. He listed the names of previous Durham County district attorneys and said, "You have to draw your own conclusions."

"The criminal justice system is not just one case. To talk about one case is not indicative of what law enforcement does, what the District Attorney's office does," he said, when asked by the INDY why he mentioned the murder cases.

Asked how the prosecution could fall so short of proving its case, Battaglia said, "I can't answer that. I think it's a great question, but it's not for me to answer."

Audience members also asked how there could have been sufficient evidence to arrest the defendants but not to convict them. Battaglia explained an arrest just requires probable cause that someone committed a crime, while a conviction requires proof beyond a reasonable doubt.

Asked whether he had set a precedent that people can get away with breaking the law in Durham, Battaglia responded that his job requires balancing individual liberty and the common good based on evidence alone.

"I don't go out outside and check which way the political wind is blowing," he said.

Battaglia said he was out of the country when the monument was pulled down in August, and knowing he may hear the cases, he stayed away from media coverage. Since the ruling, he says, he has had to leave a grocery store "because someone was giving me a lot of chin music."

"After the decision, I wondered if someone was going to shoot me—but I don't sleep alone either," he said, making reference to the Remington. (The protesters accused of tearing down the monument say they have also faced threats.)

Immanuel Jarvis, the Durham GOP chairman, said local Republicans were frustrated with how the cases were handled and shared those concerns with Battaglia.

"There are people in Durham who saw with their own eyes the defacing of a monument and people proclaiming, 'I was a part of it'," he said. "It seemed like everything was there for a criminal prosecution."

Battaglia was elected in 2014, after nearly thirty years practicing law. Along with five other Durham County District Court judges, he is up for reelection this year. Battaglia is a registered Democrat and described himself as "liberal" in a 2014 INDY candidate questionnaire. District Court elections have been nonpartisan in North Carolina since 2001, but beginning this year ballots will include a candidate's party affiliation, although primaries have been canceled while GOP legislators try to redraw judicial districts.

The filing period for the judicial races doesn't open until June, so it's too early to say whether Republican voters in Durham County will have a candidate from their own party to support. Echols is also up for reelection along with Sheriff Mike Andrews (in May), as well as three Superior Court judge seats.

"Thirty thousand people are still pissed off" about the way the monument was taken down and the outcome of the cases, Jarvis said, but Thursday's conversation shifted that frustration. Anyone who is fully supportive of the monument being toppled has a "political motive," he said, saying sentiments would be very different had skinheads pulled down a statue of Martin Luther King Jr.

Jarvis said Thursday's conversation highlighted the need to hear from others involved in the criminal justice system and that the Durham County GOP may invite Echols to speak.

Gray, for one, said he will wait and see who else files for local judgeships, but so far he likes Battaglia's policies of "using facts and dealing with what he has." The conversation did, however, have him thinking about other elected officials within the criminal justice system.

"He raised a lot of questions about how the process works," he said.

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