V I R G I N I A:

IN THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE

WILLIAM N. EVANS )
Petitioner/Intervenor )
v. ) Case No. _____________
)
JOSEPH D. PLATANIA, )
COMMONWEALTH’S ATTORNEY )
FOR THE CITY OF CHARLOTTESVILLE )
Defendant/Respondent )

Motion to intervene in: COMMONWEALTH OF VIRGINIA v. JAMES ALEX FIELDS,

Case No. CR17000296-01 to CR17000296-10

CONSOLIDATED MOTION TO INTERVENE, MOTION TO WITHDRAW THE

SEALING ORDER, AND PETITION FOR WRIT OF MANDAMUS

To the Honorable Judges of the Circuit Court of the City of Charlottesville:

Your Petitioner/Intervenor, WILLIAM N. EVANS (“Evans”), requests that the factual

assertions contained within the attached AFFIDAVIT OF WILLIAM N. EVANS, numbered 1 to

61 and including all sub-divisions, be incorporated herein, and that the legal argument in the

attached MEMORANDUM OF LAW IN SUPPORT OF PETITIONER’S MOTIONS also be so

incorporated.

Evans respectfully represents as follows:

1. That Evans is a citizen of the United States and of Virginia, and is entitled to certain

rights under the First Amendment, the Virginia Constitution, the Virginia Code, and Virginia’s

Freedom of Information Act (“VFOIA”), §§ 2.2-3700 et seq.

2. That Defendant/Respondent, JOSEPH D. PLATANIA (“Platania”), is the elected

Commonwealth’s Attorney for the City of Charlottesville, and as a constitutional officer of the

State of Virginia, qualifies as a “public body” under VFOIA § 2.2-3701.

1
 3. That on December 14, 2017, a preliminary hearing in the James Alex Fields case was

conducted in Charlottesville General District Court.

4. That prior to the preliminary hearing, the Commonwealth’s Attorney’s office and the

City of Charlottesville (“City”), through its agents and/or representatives and/or employees, had

discussed what evidence would be presented at the hearing.

5. That during this preliminary hearing, Assistant Commonwealth’s Attorney Nina-Alice

Antony (“Antony”) entered two video recordings into evidence and played them in open court.

6. That under the First Amendment of the U.S. Constitution, Art. I, § 12 of the Virginia

Constitution, and the Virginia Code, the public has a qualified right to access the evidence filed

at Fields’s preliminary hearing, including the two video recordings.

7. That on December 15, 2017, and then again on December 26, 2017, Evans sent requests

under VFOIA to the City, asking “to inspect or obtain copies” of two public records in the

possession of the City that were released to the public at the preliminary hearing of James Alex

Fields on December 14, 2017.

8. That in particular, Evans asked to “inspect or receive copies of two video recordings of

the August 12, 2017 Charlottesville car attack that were played for the national media in open

court on December 14 and, thereafter, decribed in detail in national media reports[.]”

9. That in its January 2, 2018 response, the City withheld the video recordings under

VFOIA § 2.2-3706(A)(2)(a), which allows a public body like the City to, in its “discretion”,

withhold public records that are part of “criminal investigative files”.

10. That as explanation, Lieutenant Cheryl Sandridge of the Charlottesville Police

Department, speaking for the City, said that “While it [sic] true that the video’s [sic] requested

were played in open court, the Court granted at the end of the preliminary hearing a motion by

2
the Commonwealth to withdraw all exhibits. No exhibits including the videos requested remain

publically [sic] available.”

11. That in planning the City’s response to Evans’s initial VFOIA requests, there was

communication and coordination between (1) the City, through its agents and/or representatives,

and (2) Commonwealth’s Attorney Platania, and/or Assistant Commonwealth’s Attorney

Antony, and/or other representatives of the Commonwealth’s Attorney’s Office for the City of

Charlottesville.

12. That this communication and coordination related to the events at the James Alex Fields

preliminary hearing and, in particular, to an alleged motion “to withdraw all exhibits” that was

made by the Commonwealth’s Attorney after the conclusion of that hearing, and which

Sandridge referenced in the City’s response.

13. That on January 5, 2018, Evans called the Commonwealth’s Attorney’s office and spoke

to Platania and Antony about the City’s denial of his VFOIA requests for the two videos shown

at Fields’s preliminary hearing.

14. That during this January 5, 2018 telephone conversation, Evans specifically requested

that Platania and Antony give him access to the two videos that were shown at Fields’s

preliminary hearing.

15. That Evans’s request, though it was made orally over the telephone, qualifies as a formal

request under VFOIA.

16. That during this January 5, 2018 telephone conversation, Platania responded to Evans’s

VFOIA request by affirmatively declining to give Evans access to the two videos.

17. That in declining to give Evans access to the two videos, Platania cited the alleged

motion “to withdraw all exhibits” that had also been cited by the City in its response to Evans.

3
 18. That on January 18, 2018, Evans sent a second VFOIA request, this one in writing, to

Commonwealth’s Attorney Platania and Assistant Commonwealth’s Attorney Antony, asking

again “to inspect or receive copies” of the two videos that were played at Fields’s preliminary

hearing on December 14, 2017.

19. That on January 24, 2018, Assistant Commonwealth’s Attorney Antony responded to

Evans’s second VFOIA request, withholding the two videos from Evans and citing the same

provision that had been cited by the City, VFOIA § 2.2-3706(A)(2)(a).

20. That when analyzed together, the Commonwealth’s Attorney’s denial of Evans’s first and

second VFOIA requests relied on the alleged motion “to withdraw all exhibits” to invoke the

discretionary disclosure provision in VFOIA § 2.2-3706(A)(2)(a).

21. That in Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447 (2013), the Virginia

Supreme Court held that an identical motion “to withdraw the original exhibits” was equivalent

to a motion to seal the record, and therefore subject to all the legal requirements of a motion to

seal.

22. That neither the Commonwealth’s Attorney’s alleged motion “to withdraw all exhibits”

at James Alex Fields’s preliminary hearing, nor the General District Court order allegedly

granting that motion, complied with the legal requirements to which motions to seal or close the

record are subject under the First Amendment, the Virginia Constitution, and the Virginia Code.

23. That the granting of the Commonwealth’s Attorney’s motion “to withdraw all exhibits”,

if it occurred, therefore violated the public’s qualified right under the First Amendment, the

Virginia Constitution, and the Virginia Code to access the public record of the James Alex Fields

case.

4
 24. That before it allegedly granted the Commonwealth’s Attorney’s motion “to withdraw all

exhibits”, the Charlottesville General District Court certified the James Alex Fields case to this

Circuit Court under VA Code § 19.2-186, thereby transferring jurisdiction over the Fields case

from the General District Court to this Circuit Court.

25. That when the General District Court certified the Fields case to this Circuit Court, the

then-extant case file had to be transferred from the General District Court to this Circuit Court

under VA Code § 16.1-69.55(A)(2).

26. That part of the then-extant case file that had to be transferred to this Circuit Court under

VA Code § 16.1-69.55(A)(2) were the two video recordings that were entered into evidence and

shown at Fields’s preliminary hearing.

27. That, perhaps as a result of the granting of the unlawful motion “to withdraw all exhibits”

after certification had occurred, the two videos shown at Fields’s preliminary hearing were not so

transferred to this Circuit Court under VA Code § 16.1-69.55(A)(2).

28. That Evans has visited the records rooms of both the Charlottesville General District

Court and of this Circuit Court and asked the clerks of both courts to review the James Alex

Fields case file, and has ascertained that neither the two videos shown at Fields’s preliminary

hearing on December 14, 2017, nor any of the other items filed as evidence and published at

Fields’s preliminary hearing, are contained in the open portion of the file at either location.

29. That the two videos requested by Evans under VFOIA were, as admitted by the City in its

response, played in open court before Charlottesville General District Court Judge Robert H.

Downer on December 14, 2017, at James Alex Fields’s preliminary hearing.

30. That before the two videos were played in open court at Fields’s preliminary hearing,

they were entered into evidence and given exhibit numbers.

5
 31. That when the two videos were played at Fields’s preliminary hearing, the monitors in

the courtroom were turned to face the courtroom gallery, so that all present could see.

32. That the Commonwealth’s Attorney made no attempt to seal the video evidence before it

was played in court at Fields’s preliminary hearing.

33. That the Commonwealth’s Attorney did not pursue a gag order or otherwise attempt to

restrain those assembled in the courtroom from reporting on the contents of the video evidence

played at Fields’s preliminary hearing.

34. That the two videos were therefore made public when they were shown in open court at

Fields’s preliminary hearing.

35. That in the gallery of that hearing watching the videos when they were played were

members of the national media, including reporters for the New York Times, the Washington

Post, CNN, and the Associated Press.

36. That also in the gallery of that hearing watching the videos when they were played was

Jason Kessler, an avowed white nationalist who is currently facing perjury charges in Albermarle

County.

37. That on the evening of December 14, 2017, the New York Times, the Washington Post,

CNN, and the Associated Press published articles describing Fields’s preliminary hearing.

38. That each of these articles included descriptions of the contents of the two videos that

were shown at Fields’s preliminary hearing.

39. That on the evening of December 14, 2017, Jason Kessler posted a video to his Twitter

page and YouTube account in which he described the contents of the videos shown at Fields’s

preliminary hearing.

6
 40. That a permanent public record of the two videos was created when their contents were

reported on by the New York Times, the Washington Post, CNN, the Associated Press, and by

Jason Kessler.

41. That the public record of the two videos in this reporting is deficient, because no written

description, no matter how extensive or artful, can capture events as they transpired like a video

recording.

42. That the public record of the two videos in this reporting is also distorted, due to apparent

contradictions (1) within the reporting on the contents of the two videos, and (2) between the

reporting on the contents of the two videos and other publicly available evidence of the events

that the two videos capture.

43. That the best way to clarify the public record is to unseal the video recordings if they

have been unlawfully sealed, order the Commonwealth’s Attorney to return the two videos to the

Fields case file if they have been unlawfully removed, or, alternatively, to release the two videos

to the broader public by satisfying Evans’s VFOIA requests.

44. That under the common law principle of waiver, Platania cannot exercise his “discretion”

to withhold, under VFOIA § 2.2-3706(A)(2)(a), a public record that has already been made

public by the Commonwealth’s Attorney.

45. That to allow Platania to withhold the two videos from Evans under VFOIA § 2.2-

3706(A)(2)(a), after the two videos have already been viewed and reported on by the New York

Times, the Washington Post, CNN, the Associated Press, and Jason Kessler, would constitute a

“selective disclosure” to some, but not all, members of the public.

46. That government-sanctioned “selective disclosures” of court records to some, but not all,

members of the public violates the First Amendment, the Virginia Constitution, the Virginia

7
Code, and the principles on which VFOIA was passed by the General Assembly and that are

inherent in its text.

47. That given all of the above, Platania violated Evans’s rights and privileges under the First

Amendment, the Virginia Constitution, the Virginia Code, and VFOIA, §§ 2.2-3700 et seq.,

when he refused to give Evans access to the two videos.

48. That Evans’s intervention in the Fields case is appropriate under Rule of Court 3:14,

because the public’s qualified right of access to the Fields case file, under the First Amendment,

the Virginia Constitution, and the Virginia Code, is a “claim . . . germane to the subject matter of

the proceeding.” See, e.g., Daily Press, Inc. v. Commonwealth of Virginia, 285 Va. 447 (2013);

Richmond Newspapers, Inc. v. Commonwealth of Virginia, 222 Va. 574 (1981).

49. That VFOIA § 2.2-3713(A) provides that “[a]ny person . . . denied the rights and

privileges conferred by this chapter may proceed to enforce such rights and privileges by filing a

petition for mandamus or injunction, supported by an affidavit showing good cause.”

50. That VA Code §§ 8.01-644 et seq. also provides Evans the right to file a petition for

mandamus against Platania in this matter.

51. That Evans has no remedy at law for this violation of his rights under the First

Amendment, the Virginia Constitution, the Virginia Code, and VFOIA, but for his right under

VFOIA § 2.2-3713(A) and VA Code §§ 8.01-644 et seq. to file a petition for mandamus against

Platania.

52. That this Court has jurisdiction over this petition under VFOIA § 2.2-3713(A)(2) and

under VA Code § 17.1-513.

8
 WHEREFORE, Petitioner Evans, as he is without sufficient and adequate remedy, prays

that this Court:

1. Grant his Motion to Intervene in the Fields case to assert his and the public’s rights

under the First Amendment, the Virginia Constitution, and the Virginia Code;

2. Grant his Motion to Withdraw the Sealing Order (if one exists) limiting public access

to the two videos entered into evidence at Fields’s preliminary hearing;

3. Issue a Writ of Mandamus directed at Platania, demanding and compelling him to

return the two video recordings to the file of the James Alex Fields case;

4. Issue a Writ of Mandamus directed at Platania, demanding and compelling him to

deliver copies of the requested video recordings to Evans as required under VFOIA,

§§ 2.2-3700 et seq.;

5. Award costs and attorneys fees, as provided in VA Code § 8.01-648 and VFOIA

§ 2.2-3713(D);

6. Order Platania to pay a fine of up to $2000 to the State Literary Fund as a penalty for

this knowing and willful violation of VFOIA, as provided in VFOIA § 2.2-3714; and

7. Grant such other further relief as it deems proper.

_______________________________________

William N. Evans, representing himself pro se

[personal information redacted]

9
 STATE OF VIRGINIA,
COUNTY OF FAIRFAX, to wit:

I, William N. Evans, petitioner herein, being duly sworn, say that I have read the
foregoing and know the contents thereof, and that the same is true to the best of my knowledge,
information and belief.

______________________________

William N. Evans

Subscribed and sworn to before me this ____ day of ____, 2018 by William N. Evans.

My commission expires:

______________________________

10