THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Tuesday, January 10, 1995 TAG: 9501100306
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY JOE JACKSON AND ANGELITA PLEMMER, STAFF WRITERS
DATELINE: NORFOLK LENGTH: Long : 115 lines
Judge Charles R. Cloud said he would order the city attorney and commonwealth's attorney to explain why they should not be held in contempt for refusing to give a volunteer prosecutor permission to try a jail beating in his court.
Cloud declared in court Monday that he plans to order the city's public prosecutors into court to defend their actions. At worst, Cloud could cite City Attorney Philip Trapani and Commonwealth's Attorney Charles D. Griffith Jr. for contempt of court and throw them in jail.
``The law in Virginia says a judge has the right to control his trial court,'' Cloud said in court. ``Yet this action is intimidating and obstructing the court's efforts to administer justice fairly. . . . I intend to issue a rule to these two public prosecutors to show cause why they should not be held in contempt for trying to obstruct justice.''
Griffith refused to comment. Trapani did not return a reporter's calls.
Monday's surprise statement by Cloud was the latest in his campaign to get prosecutors to take violent misdemeanor cases in his General District Court. In September, Cloud ordered Griffith and Trapani to try such cases, but a judge ordered Cloud to temporarily stop his efforts pending a hearing.
In response, several former Norfolk prosecutors volunteered to represent victims of alleged misdemeanor assaults and gun threats when asked by Cloud, and in lieu of prosecutors' refusal to participate.
Although some choose to do so, city attorneys and commonwealth's attorneys are not required by state law to prosecute misdemeanors in lower court. In Norfolk, prosecutors refuse, saying they lack the staff to do so.
That means a victim who files charges with a magistrate must prosecute his own case and often faces a trained, court-appointed lawyer.
Norfolk's ``volunteer prosecutors'' tried between five and 10 such cases in November and December, interviews show. Before Monday, public prosecutors did not block their use, lawyers said.
One volunteer prosecutor was Gregory D. Underwood, who resigned last year from Griffith's office. Underwood was scheduled Monday to represent a jail inmate allegedly beaten by inmate Keith Maurice Jones.
However, on Friday, Deputy City Attorney Andre Foreman told Underwood that under state law he needed the consent of public prosecutors to participate in the case, Underwood said. That consent was not given, Underwood said.
``I asked Foreman whether I had their consent and he said Trapani and Griffith were in conference,'' Underwood told Cloud. ``When he called again, he said I did not have their consent.''
Underwood called Cloud on Saturday to inform him of the matter. On Monday, Cloud continued the case.
``I have recognized that in certain matters the city attorney and commonwealth's attorney intimidate lawyers who practice in this court,'' Cloud said. ``Lawyers who practice in court walk on eggshells. . . their (prosecutors') powers are broad.''
In August, Cloud asked state Attorney General James Gilmore to advise him on whether he could order prosecutors to try serious misdemeanors. In October, Gilmore concluded that state law gives city attorneys and commonwealth's attorneys sole discretion on whether to prosecute misdemeanors. A General District judge cannot usurp that discretion, Gilmore wrote.
Then, in September, Cloud ordered Trapani and Griffith to participate in such cases. The next day, Griffith asked the Circuit Court for a writ of prohibition, an order that would overrule Cloud. Griffith also asked for a temporary injunction to stop Cloud from enforcing his order before a full hearing could be held.
Norfolk's nine Circuit Court judges disqualified themselves, and the Supreme Court appointed retired Courtland Judge Benjamin A. Williams Jr. to hear the case. Two days after Cloud's order, during the weekend, Williams held a hearing in his home and ordered Cloud to stop trying to enforce his order so the issue could be heard properly.
The hearing is scheduled for Jan. 23.
Soon after Williams' ruling, six former Norfolk prosecutors volunteered to represent the victims of violent misdemeanors in Cloud's court. In addition, the Norfolk-Portsmouth Bar Association discussed possible solutions.
``The question is, why do this?'' said former Deputy Commonwealth's Attorney Troy Spencer, who also resigned from Griffith's office. He coordinated the effort to enlist volunteers.
``This seems that a public official is taking the position that would jeopardize a victim's right to a fair trial. . . . It looks to me like a prosecutor would embrace support from competent people.''
Cloud and the prosecutors all quote a 1985 ruling by the state Supreme Court as the basis for their positions. The case, Cantrell vs. Commonwealth, says that victims of alleged misdemeanors can hire private prosecutors or attorneys can volunteer to prosecute cases at the discretion of the judge. But the case also says that the volunteers must have the consent of the public prosecutor.
According to state legislation, only three cities in Hampton Roads are allowed to use volunteer prosecutors - Chesapeake, Virginia Beach and Norfolk.
Two attorneys in Virginia Beach and eight in Chesapeake donate their services, but only for misdemeanor appeals cases in Circuit Court.
Portsmouth prosecutes misdemeanors in lower court.
Virginia Beach refuses to prosecute misdemeanors in General District Court because of limited resources, said Deputy Commonwealth's Attorney Albert Alberi.
In Chesapeake, prosecutors will intervene on behalf of victims in serious misdemeanor cases only if they are asked by a victim, law enforcement officer or officer of the court. ILLUSTRATION: Cloud
Griffith
Trapani
AN ONGOING BATTLE
Monday's surprise statement by Judge Charles R. Cloud was the
latest in his campaign to get prosecutors to take violent
misdemeanor cases in his General District Court. In September, Cloud
ordered Commonwealth's Attorney Charles D. Griffith Jr. and City
Attorney Philip Trapani to try such cases, but a judge ordered Cloud
to temporarily stop his efforts pending a hearing.
by CNB