In an August 21 hearing in Charlottesville Circuit Court, Commonwealth’s Attorney Joe Platania took an unusual seat—in the defendant’s chair—with his files resting on a table on the left side of the room, while another man took Platania’s usual seat on the right.
William Evans, a Fairfax attorney representing himself, is suing the commonwealth’s attorney for access to two videos of the August 12, 2017, car attack that the prosecution showed in an open courtroom at driver James Fields’ preliminary hearing in December, then submitted as evidence, and removed from the public file.
“It’s really one of the more unusual cases I’ve ever been involved in,” said Judge Rick Moore at the hearing. Evans had submitted approximately 20 relevant cases for the judge to read, and Moore said from the 10 he scoured in full, he was introduced to issues and points of law he was never aware of.
Evans has argued that, even in a criminal trial, videos that have been shown to the public in a courtroom, with their contents reported on by multiple news outlets, should be available for anyone who wishes to see them. The two specific videos he’s after are Virginia State Police helicopter footage of Fields plowing his car into dozens of counterprotesters, and surveillance video of the incident from Red Pump Kitchen on Fourth Street.
Evans, who seems to have his own theory of what happened before and during that attack in Charlottesville (according to videos posted on his YouTube channel called SonofNewo), submitted a Freedom of Information Act request to the city and to Platania to view the videos shown in court, and both were denied. He says the reports he’s read of the videos’ content are contradictory.
Moore told Evans that FOIA exemptions in criminal cases often exist for “public welfare and justice…not just because we don’t want you messing in our papers.”
Evans says all he’s asking to see are portions of videos already shown in an open court, which the prosecution relied on as evidence.
“That’s all you’re asking to see?” asked the judge. “That’s all I’ve ever wanted to see,” said Evans, who also sued the city in a separate suit, over the same two videos.
The videos aren’t currently in the file for seemingly unknown reasons, though it was disclosed that assistant prosecutor Nina-Alice Antony remembers making a verbal motion to withdraw the videos at the end of the December preliminary hearing, which isn’t documented in the official court transcript.
In felony cases certified to the grand jury, Moore said all documents are sent to the clerk of the respective circuit court, unless there’s a decision to seal the record. But Evans says there is no record of an order to seal the evidence.
On why the commonwealth won’t just turn over the videos, Platania says, “When balancing public access to information with a defendant’s Sixth Amendment right to a fair trial by an impartial jury, this office will always err on the side of non-disclosure unless otherwise directed by a court of competent jurisdiction.”
The judge granted Evans’ motion to intervene in the Fields’ trial and to argue for the public’s right to access those two videos.
As they ran out of time and Evans agreed to appear at the October docket call to set another date to continue, the judge pondered the importance of granting Evans and the rest of the community a chance to see the videos.
“What is the harm of the public not seeing a 13th version of this?” Moore said. “What is the public really going to care about this?”
Evans said he felt like the hearing went well.
He added, “Really, this is all kind of plowing new ground in terms of Virginia FOIA law.”
