Attorney says client who participated in 2017 torch-carrying mob looks too much like Nazi to get fair trial

Frazier said prosecutors have unfairly targeted Jacob Joseph Dix, gesturing toward the blond-haired, square-jawed, business-suited, 29-year-old Ohio man sitting beside him at the hearing in Albemarle County Circuit Court.

“Can we all take a look at Jacob? He’s the prototypical German,” said Frazier. “He’s who they want getting perp-walked out of this courthouse, because he looks like a Nazi.”

While repeatedly invoking this N-word at Wednesday’s hearing, Frazier argued for a ban on such epithets at next month’s trial. Judge H. Thomas Padrick Jr. agreed that he intended to require the commonwealth’s opening statement to avoid such language and that he would likely require any expert witnesses to first submit their evidence outside the ears of the jury.

“Labels will inflame the jury I think,” said Padrick. “We’ll discuss this on the day of the trial.”

The trial may present Frazier some challenges, as his client might not just look like a Nazi, he has dressed like one too.

On Aug. 11, 2017, Dix was photographed among the mob of torch-wielding White supremacists on UVa Grounds chanting “Jews will not replace us” and the Nazi slogan “Blood and soil. Dix, torch in hand, sported a shirt emblazoned with the number 88, neo-Nazi shorthand for “Heil Hitler” (H is the eighth letter of the alphabet).

Frazier contends that Dix stuck to “You will not replace us” and did not participate in the violence that broke out when the mob reached a smaller group of counterprotesters at the base of the Thomas Jefferson statue outside the school’s iconic Rotunda.

“Jacob didn’t do any of that,” said Frazier. “He’s just standing there.”

Frazier claims that prosecutors are attempting to criminalize unpopular views.

“It’s good guys versus bad guys,” said Frazier. “That’s what this all boils down to.”

During the Wednesday hearing, which lasted two hours, Frazier argued five motions alleging a variety of things, including selective prosecution, unconstitutional vagueness in the charging law and a prosecution driven by political animus.

“They think Jacob’s bad and the views he espoused were bad,” said Frazier.

The upcoming trial, which begins June 4, marks the first major test of the charges announced last year by Albemarle Commonwealth’s Attorney Jim Hingeley, whose 2019 election displaced a prosecutor who declined to levy such charges. Hingeley’s office has obtained about a dozen felony indictments against participants in the march which took place on the eve of the planned Unite the Right rally.

Both the march and the next day’s aborted rally erupted in violence when White nationalists and counterprotesters clashed. Most notably, after the would-be ralliers were dispersed by police, another Ohio man sped a car into a crowd of counter-protesters, killing an anti-racist activist named Heather Heyer.

Frazier argued that torches are a form of speech protected by the First Amendment.

“It’s absolutely symbolic speech,” argued Frazier, recalling the black armbands that the U.S. Supreme Court famously defended in the 1967 Tinker v. Des Moines case of high schoolers protesting the Vietnam War.

The fire-as-racial-intimidation law was created by the General Assembly in 2002 after the Virginia Supreme Court ruled that the state’s long-standing cross-burning statute, designed to prosecute members of the Ku Klux Klan, was unconstitutional. The nation’s highest court later narrowed the scope of the cross-burning law but did not overturn it, so both laws remain on the books. Dix could face up to five years in prison if convicted.

Prior to the hearing, legal analyst David Heilberg predicted that Frazier’s constitutional challenges would not result in a dismissal by the trial court, and the judge agreed.

“We all know that statutes are presumptively constitutional,” Padrick said at Wednesday’s hearing.

That provided an opening for Shannon Taylor, the special prosecutor brought in from Henrico County. She pushed back at Frazier’s fondness for the First Amendment by asserting that it’s not just the torches that were illegal. Taylor said that marching, spittle-flecked chants and the encircling and punching of enemies at the base of the Jefferson statue must all be considered.

“It is impossible to silo each one of those concepts,” said Taylor.

Taylor entered this case after Padrick pushed Hingeley out of it earlier this year at Frazier’s request. The defense attorney alleged that some of Hingeley’s pretrial statements showed bias against the defendants and that one of his prosecutors had been too cozy with counterprotesters back in 2017.

While Hingeley’s office has secured five convictions with sentences of six and 12 months in jail, Frazier told the court that that he noticed that each of the five convictions was a guilty plea by an out-of-state defendant held without bail before trial.

“They pled guilty to get out of jail,” said Frazier.

Frazier’s two motions to find the law unconstitutional were taken under advisement by Padrick. Ditto for Frazier’s request to move the trial to a new location. And Padrick rejected a motion to dismiss based on selective prosecution.

For Heilberg, the legal analyst, this case presents some lively trial issues.

“Everyone believes in the First Amendment, but when it leads to violence, the First Amendment doesn’t absolutely protect everything,” Heilberg told The Daily Progress.

And while he wasn’t surprised that the judge didn’t act on the constitutional claims, Heilberg said he sees the validity of Frazier’s strategy.

“You have to raise it to be able to appeal it,” said Heilberg.

Through its subpoenas, the prosecution revealed that it plans to call at least a dozen witnesses, including UVa Lawn resident and well-known political pundit Larry Sabato, who has been a persistent critic of the 2017 torch-lit march.

And while Frazier peppered his arguments with mentions of such marches throughout the world, including contemporary Norse festivals and an 1860 campaign rally for Abraham Lincoln, the prosecution team promised a different narrative.

“How do we get into the mind of the defendant?” asked Assistant Henrico Commonwealth’s Attorney Nael Abouzaki, who is assisting Taylor with the prosecution. “We cannot divorce the actions from the rhetoric.”

Abouzaki promised to bring a Jewish history professor to share the history of torches during the Holocaust, something he hinted that many of the 300 marchers had to know.

“It’s not like they were trying to create a tropical aesthetic,” said Abouzaki, “or repel mosquitoes.”