Soros-Funded Prosecutor Pushes Dubious Tiki Torch Prosecutions for Political Reasons
Joseph Jordan and Glen Allen, Free Expression Foundation, May 1, 2023
As the politicization of the American judicial system accelerates, emboldened prosecutors are navigating into uncharted waters to please wealthy donors, raise their national profile, and distract from the crime epidemic they have helped unleash.
Following the Unite the Right rally in August 2017, Albemarle County’s chief prosecutor Robert Tracci declined to bring charges under Virginia Code Section 18.2-423.01-B against nationalist protestors who marched with Tiki Torches at the University of Virginia, arguing that such cases would be difficult to prove in light of the First Amendment issues involved.
The Virginia law, a class 6 felony, prohibits the burning of objects in a public place with the intent of intimidating a person or group of persons. Few criminal charges have been brought under this statute, and when they have been applied, prosecutors have had mixed success. In Virginia v. Black, a 2003 Supreme Court case dealing with the constitutionality of a closely-related cross burning statute, the Court upheld the statute in part, holding that given cross burnings’ “long and pernicious history as a signal of impending violence” they could amount to “true threats” not protected by the First Amendment. But the Court also struck down part of the statute, holding that cross burning by itself, without additional evidence of intent to intimidate, could not support a conviction.
This is the formidable Constitutional obstacle Tracci cited in his decision not to pursue the Charlottesville marchers. But his prudent decision was attacked by his opponent, Jim Hingeley, during the 2019 Albemarle County Commonwealth Attorney race. Hingeley, who according to the Virginia Public Access Project received donations from George Soros ($5,000) and local activist billionaire Sonjia S. Smith ($114,000), was able to ride the avalanche of money to a commanding 56% to 43.5% victory over Tracci.
Four years later, Hingeley has overseen an overhaul in Albemarle County’s criminal justice system but the results have been problematic. In his first year in office, the murder rate in Charlottesville increased 30% year over year, according to data compiled by the Daily Progress. According to FBI crime data, there were 0 murders in Charlottesville in 2021. In the last seven months, however, the same city has suffered a surge of violence, already counting 14 homicides. The public safety situation for UVA students in Charlottesville has become so dire that university administrators are now supporting a task force of local, state, and federal law enforcement officials seeking to drastically increase police patrols around the campus and more stringently deploy no-trespass orders against mostly black people from areas around the school, according to a report last month in the school’s paper, UVA Today.
Hingeley now finds himself on the defense against public discontent. But rather than taking firmer steps to protect UVA students and Charlottesville residents from violent crime, it seems he seeks to distract from his experiment’s failure by pivoting to the tiki torch prosecutions.
In recent months, Hingeley’s office began expending scarce resources during a crime wave by hunting down multiple Unite the Right protesters across the country under the “burning objects” statute. Three men, Tyler Dykes, Dallas Medina and Wil Zachary Smith, were surprised when five years after the Charlottesville march, they were arrested on out-of-state charges and transported to Virginia.
The men, all charged with the same crime, have so far been treated differently depending on the judges they have drawn. In the case of Medina, the judge allowed him to return to his home in Ohio until his next hearing in June. Smith, from Texas, has been held at the Albemarle-Charlottesville Regional jail without bond since January for a 2018 charge of pepper spraying a member of Antifa during the tiki torch march. Last February, a grand jury indicted him for the burning objects charge as well.
The most astonishing development has been Dykes’ experience. Dykes, of South Carolina, is only 25 years old, but has become a successful small business owner. During his bond hearing last week, the Assistant County prosecutor argued for Dykes to be held without bail by presenting a blog post from a group called “Atlanta Antifa” that purports to show evidence that he is still involved in nationalist political activity unrelated to the tiki torch case. Atlanta Antifa members are currently facing domestic terrorism charges for their violent actions seeking to prevent the construction of a police training facility in Dekalb County, Georgia, but this did not dissuade the prosecutor from entering their highly editorialized and largely irrelevant profile of Dykes as official evidence.
The judge, who is African-American, agreed with Dykes’ attorney that he was not a flight risk, yet granted the prosecutor’s request to hold him in custody until trial based on the opinion of an anonymous Antifa group on the internet.
The race, political views, or media diet of a judge, prosecutor, or defendant should not be allowed to play a role in the American criminal justice system, yet both in Albemarle County and the nation at large, these previously sacred rules that underpin the integrity of our justice system have been casually brushed aside. For those who cross the ideologies of wealthy campaign donors, freedom of speech and the right to demonstrate are no longer civil liberties that can be taken for granted.