Two found guilty in Silent Sam toppling, two others dismissed

An Orange County judge has found two men guilty on misdemeanor charges related to the toppling of the Confederate monument known as Silent Sam at UNC Chapel Hill on Aug. 20, 2018.

Judge Lunsford Long ruled today that Raul Jimenez, 27, and Shawn Birchfield-Fin, 30, are guilty of injury to real property, defacing a monument and disorderly conduct. Long dismissed charges against two other defendants, Lauren Aucoin and Jonathan Fuller. A fifth defendant, Margarita Sitterson, will be tried separately, on May 9.

Long said the evidence presented in court established beyond a reasonable doubt that Birchfield-Fin and Jimenez were present at the event, that they demonstrated intent to topple the statue, assembled with two or more persons, and as a result injured real property. Long sentenced each defendant to 24 hours in the Orange County Jail, 250 hours of community service and a $500 fine in addition to court costs.

“There’s no place in a civilized society for citizens to take the law into their own hands,” Long said, echoing conservative lawmakers who decried the toppling of Silent Sam last fall. “That’s not the way our culture works. That’s not the way we evolved from the English common law. We have the rule of law, not the rule of people, and mob rule is destructive. That’s what happened here. They fed off of each other, and they did something a large part of society would never do. There have to be consequences for those actions — the damaged property, for the inflamed situation in our culture right now. This is part of it, not the cause of it, but it’s part of it.”

Judge Long also rejected a public necessity defense put forward by defense attorney Scott Holmes, based on the argument that the statue had to come down because it was a threat to life and health.

“By that logic the vigilantes at the border can detain people based on the harm they perceive them doing,” Long said.

Holmes had attempted to subpoena a letter from former General Counsel Mark Merritt to former Chancellor Carol Folt addressing the public safety concerns surrounding the monument, but the document was not introduced into evidence.

“I’m not inclined to allow this trial to be an airing of social grievances,” Long said. “It’s a question of if they did it or not.”

Holmes gave notice that the two defendants will appeal.

“We intend to keep fighting these charges, just as we continue to fight white supremacy, all across North Carolina,” said Jimenez, standing beside Birchfield-Fin and Holmes. “We’re disappointed, yes we are, in the way that the judicial system treated us today. It did not treat us fairly, and we will hold them accountable for that. And we look forward to contributing to this movement as well.”

Jimenez was also charged in the 2017 toppling of the Confederate monument in Durham, but the charge was dismissed in that case.

Assistant District Attorney Billy Massengale told Judge Long that the “crux” of the case was video published by WRAL on the night of the statue’s toppling. Over Holmes’ objections, Judge Long reviewed portions of the video, along with screenshots made by UNC police Investigator Ray Oliver of individuals purported to be the defendants. Judge Long told the attorneys he was satisfied that he positively identified Jimenez and Birchfield-Fin in the video, while saying that he saw someone who looked like Fuller but couldn’t be sure.

The evidence against Aucoin, who uses gender-neutral pronouns, was based on a tip received by Oliver.

“We received a phone call and an email stating that she was the individual with the camouflage hat and a mask in the video that we looked at,” Oliver testified, mis-gendering Aucoin. “There was another WRAL video that shows her taking the mask off. In another section of the video she cuts off a section of the rope and you can see her tattoos.”

Long ruled the evidence inadmissible before dismissing charges against Aucoin.

Oliver was one of three officers who took the stand to testify about the events of Aug. 20, 2018, but all three said they did not see any of the defendants pull down the statue. Two of the officers testified they were behind the statue when it was pulled forward, while another ran around to the front as it was being pulled down.

Officers’ testified about a single bottle being thrown prior to the toppling of Silent Sam, which has been a matter of contention between antiracist student activists and university officials who assert that students have acted violently. (A contemporaneous media account confirms the assertion by police that a protester punched an officer shortly after the protest group moved across Franklin Street from Peace & Justice Plaza to McCorkle Place, where the statue was located.)

An “after-action” report completed by the Parker Poe law firm based largely on interviews with law enforcement officers and university administrators in response to a request by the UNC System Board of Governors described the protesters as “hostile and physical.”

“A number of officers stated that this was one of the only times in their careers where they felt scared for their and other persons’ safety,” the report said. “The crowd began to throw frozen water bottles and eggs at the officers surrounding the statue. The officers were not outfitted in riot gear (helmets, shields and batons) and so only had their regular uniforms to protect them. Although a couple of officers noted that riot gear had been staged in a van in the Swain parking lot, it was not easily accessible. At least two officers were hit with frozen water bottles. Fearing for the safety of the officers and others, Captain Twiddy gave the order to ‘pull out’ to protect his officers at 9:17 p.m. Thereafter, the officers dispersed to the periphery of the crowd and continued to monitor and gather evidence for later prosecution.”

Testimony by officers under oath in court on Thursday presented a somewhat less fraught picture of the scene when officers who had been surrounding the statue abruptly withdrew

Investigator Oliver testified on Thursday that a plastic bottle filled with liquid — not frozen, as described in the Parker Poe report — flew between him and another officer and struck Sgt. Timothy Goad. Oliver said he pointed out where the bottle came from, and Capt. Tom Twiddy, the event commander, “called us back.”

Officer Matt Dodson, who was on the scene, testified that he personally didn’t see any water bottles thrown, but he said he found egg yolk on the ground surmising that it had splattered after being thrown. Dodson also testified that after Sgt. Goad was hit with a water bottle, Twiddy “told us to move back towards the university.”

Officer Shane Hardenberger, who testified that he was one of the officers who encircled the statue before Twiddy gave the order to “fall back,” testified that he didn’t personally observe any projectiles being thrown.

The “after-action” report was commissioned after conservative members of the Board of Governors, including former state Sen. Thom Goolsby, intimated that the police and university administrators colluded with protesters in the toppling of Silent Sam. In one YouTube video posted 10 days after the event, entitled, “Silent Sam toppling, the fix was in,” Goolsby said, “Very, very lately it’s come to light that the officers were ordered to stand down and stay back and allow the individuals to complete their work.”

Testifying about what he observed from a distance, Hardenberger said on Thursday: “It appeared people started crawling under the banner. I heard people yell, ‘Pull!’ I came back around [to the front]. I couldn’t see who was pulling. I heard metal popping and the statue fell through the banners.”

Four tall banners had been placed around the statue and fastened together with zip-ties while police were preoccupied with a melee that erupted after officers detained a protester for violating the state anti-masking law.

“It was done pretty well,” Dodson testified. “It was pretty sturdy for what it was.”

Birchfield-Finn was arrested again on Thursday and charged for carrying a 3.4-inch pocket knife through security at the courthouse, according to a report by WRAL.

And an antiracist activist and graduate student who was observing the trial was also charged in a different matter. After testifying, Officer Dodson asked Calvin Deutschbein to come with him, and then served him with a summons for injury to real property. The police allege Deutschbein is responsible for breaking out a window pane on campus on Wednesday. Deutschbein declined to comment on the charge.

Students and faculty left classes en masse on Wednesday to protest police violence and what they characterize as coddling of neo-Confederates on campus.