Virginia Commonwealth law is clear on what constitutes first degree murder. “It is first degree murder to kill another by poison, lying in wait, imprisonment, starving, or by any willful, deliberate, and premeditated killing, or in the commission of, or attempt to commit, arson, rape, forcible sodomy, inanimate or animate object sexual penetration, robbery, burglary, or abduction.”
Now here’s what we know about James Alex Fields, Jr. the white nationalist fanatic who is being charged with second degree murder for plowing into a group of counter-demonstrators at the white nationalist march in Charlottesville, Virginia. Fields allegedly killed one and maimed a dozen or more others. Witnesses say that the counter protesters were clearly identified as such. They carried anti-racist signs and chanted “unite the right” and other anti-racist slogans. The car Fields Jr. allegedly drove did not try to avoid the protesters, nor did he appear to be confused or panicked by the counter protesters. In fact, other witnesses were clear that Fields Jr. allegedly took deliberate aim at the counter-protesters.
Charlottesville police officials also confirmed that Fields Jr. allegedly deliberately plowed into the marchers. A reporter who spoke to even more witnesses to the crash said that Fields Jr. allegedly turned his vehicle into a deadly weapon and intentionally rammed into the counter-protesters. Though another reporter tweeted initially that law officers she talked to said Fields Jr.’s act was not malicious, she later retweeted that those officers were not at the scene and had not seen the video.
Then there’s Fields Jr’s history. It’s a history as a racially and anti-Semitic venom-spouting member of the racist loon group, Vanguard America. This further bolsters the contention that there is the motive and intent necessary to prove that an act committed against a hate-targeted individual or individuals is willful and intentional.
Under Virginia law, then, Fields Jr’s murderous act rises to the bar required for prosecutors to bring a first-degree murder charge. There’s 1. intent (his own history and witness testimony) 2. the victims were knowingly chosen 3. The act was willful and deliberate.
This blows away the legal argument that Fields Jr must be slapped only with a second-degree charge. That’s simply not true under Virginia law. The other argument is that prosecutors like to win and will do anything not to bring a charge if there’s even the remotest possibility they can’t make it stick. That’s a valid point.
But prosecutors also in more cases than not routinely overcharge, sometimes piling offense on top of offense on a defendant, as a bargaining chip to get a guilty plea to a lesser charge. It rarely works in reverse, however, where they undercharge in a potential capital case.
It’s hard to imagine that if the situation had been reversed and the march and rally was staged by Black Lives Matter and one of their march organizers had plowed into a packed crowd of white counter-demonstrators, that a Virginia prosecutor would have asked for anything less than a first degree murder charge with the possibility of the death penalty. Case law is filled with cases, especially in the South, where prosecutors have quickly filed first degree murder charges against black males accused of crimes against whites on far less evidence and witness testimony than in the Fields Jr. case.
So, one will have to look for reasons beyond simply the letter of Virginia law to find the reason Fields Jr. is not hit with a first-degree murder charge. Whatever those reasons, prosecutors can and should junk them and prosecute Fields Jr. for first degree murder.
Earl Ofari Hutchinson is an author and political analyst. He is an associate editor of New America Media. His forthcoming book, The Trump Challenge to Black America (Middle Passage Press) will be released in August. He is a weekly co-host of the Al Sharpton Show on Radio One. He is the host of the weekly Hutchinson Report on KPFK 90.7 FM Los Angeles and the Pacifica Network.