THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, February 4, 1995 TAG: 9502040333
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LYNN WALTZ, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Long : 154 lines
The sentencing of North End serial rapist Kerri Charity was postponed Friday after prosecutor Albert Alberi dangled a ``hangman's noose'' in front of four rape victims - unleashing a flurry of protest from the defendant's family and attorney.
Defense attorney David Baugh, who said the move could lead to a mistrial or lay the foundation for an appeal, accused prosecutors of bigotry and of leading a lynch mob. Baugh called the noose a ``lynch knot.''
Alberi, chief deputy commonwealth's attorney, said he regretted the incident. He said his action - during a recess, and out of view of the jury - was in jest and stemmed from fatigue after the tedious two-week trial.
Rape victims testified Friday that Alberi took a 6-foot string he had used during the trial to represent a DNA molecule and tied it into a noose.
``This is a DNA molecule,'' Alberi said while swinging the noose back and forth, according to witnesses.
Alberi said the noose was a metaphor for DNA evidence that helped convict Charity. DNA evidence recovered from the rape scene matched Charity's.
``DNA convicted the defendant,'' Alberi said. ``I regret that Charity's parents saw that noose. That's unfortunate. It wasn't intended for them.''
The victims were visibly shaken at having to testify again after the strain of the two-week trial they believed was in its final day.
Jurors were sent home while Judge Frederick B. Lowe listened to arguments about whether the action represented prosecutorial misconduct and whether the jury should hear testimony about it before determining the sentence.
Charity faces more than seven life sentences in the rapes and sodomies of four women at the Oceanfront. The jury found him guilty of 11 felonies late Thursday and returned Friday morning to recommend a sentence.
In an extremely unusual move, Baugh called Commonwealth's Attorney Robert Humphreys to the stand. Humphreys, who saw the incident, testified it was ``inappropriate'' and said afterward that he had ``admonished and reprimanded (Alberi) for having the noose where family members could see it.''
Humphreys said the incident should have no impact on the case because it did not happen in front of the jury and they knew nothing about it.
Charity's father and his wife confronted Alberi after seeing the incident, which happened in the courtroom during a recess outside the presence of the judge and jury.
``I saw the hangman's noose in his hand. I got a little emotional,'' said James Charity, Charity's father. ``My wife told me to sit down. I called Alberi's name and asked if I could have a word with him. He put the noose in his pocket and came over to me. We were face to face.
`` `Do you know Jesus?' I asked. Yes, he knew him, he said. I said, `What is the purpose of what you're doing? You're acting like a demon.' I just went blank after that, trying to hold my emotion. I said, `God be with you' and went back to my seat.''
Baugh tried unsuccessfully to call Alberi to the stand to explain his intentions for showing the noose and whether they stemmed from prejudice.
Judge Lowe will rule on whether Alberi should testify on Monday and whether any of Friday's testimony will be given to the jury.
Lowe said there were two issues: whether Alberi's action was appropriate and whether it is relevant to the case.
Baugh said the incident showed an underlying racial prejudice that affected the entire trial and could be grounds for a mistrial.
Alberi told the judge it was simply a matter of fatigue.
``In his fatigue, he manifested examples of a prejudicial bias that has been carried over to these witnesses,'' Baugh argued. ``The plodding proceedings that have fatigued him were his own fault. I didn't put that noose in his hand. You have a mob of people more concerned with zapping people than they are with justice.''
Baugh argued that the prosecution's lack of compassion for the defendant's parents, whom both Humphreys and Baugh called victims of circumstance, was relevant.
``There's a tremendous amount of bigotry,'' Baugh told the judge. ``What reason does this man have for torturing these people? You can't play with people like that. It's relevant.''
After the hearing, Baugh said that before 1972 Virginia had a history of executing black men for the rape and attempted rape of white women.
``Sixty-five people have been executed in this state for rape, all black males,'' Baugh said after the hearing. ``So there's a sensitivity to someone flashing a hangman's noose. There appears to be a lynch mentality: The black guy did it.''
Humphreys said the incident stemmed from Alberi's frustration over delays in Friday's sentencing, such as when Baugh unexpectedly called a newspaper reporter to the stand. The hearings were stopped for over an hour while a newspaper attorney came to the courthouse to argue against her testifying.
``Alberi was expressing his own frustration,'' Humphreys said. ``I told him, you shouldn't have done it where the defendant's family could take it wrong. There are all kinds of reasons for making a noose, from just practicing knots to deliberately trying to inflame someone in an offensive manner. He said he was unaware anyone could see it.''
Baugh responded: ``It caused you no concern that the prosecutor was waving a lynch knot?''
``No, it had no effect on the case,'' Humphreys said.
``So, you're saying, if it's not seen by members of the public, then it's OK, it doesn't bother you,'' Baugh said. ``If Mr. Alberi appears in his office with a white sheet and a burning cross and nobody sees him, then that's OK?''
Detective Kirk Rexroad also testified that Alberi had expressed his frustration and fatigue Thursday, before the verdict.
``He said, `If this thing doesn't wrap up, I think I'm going out the third-story window.' I think he was joking. No, I know he was joking,'' Rexroad testified.
Alberi argued that he should not have to testify Monday.
``By innuendo, Mr. Baugh is trying to create something that does not exist,'' Alberi said. ``If I submit to every inquiry from every defense attorney, the entire system of criminal justice will break down.''
Judge Lowe responded, ``I will grant you that defense attorneys ought not be able to call prosecutors for everything they've done, but I'm not prepared at this time to rule. If Mr. Alberi were agreeable to testify, then he could, but he has objected and that must be carefully considered.''
The turmoil came one day after Lowe commended Baugh and prosecutors for their professionalism. ILLUSTRATION: Kerri Charity was found guilty of 11 felonies.
``I saw the hangman's noose in his hand. I got a little
emotional. My wife told me to sit down. I called Alberi's name and
asked if I could have a word with him. He put the noose in his
pocket and came over to me. We were face to face. `Do you know
Jesus,'' I asked. ``Yes, he knew him,'' he said. I said, ``What is
the purpose of what you're doing - you're acting like a demon.''
James Charity, Kerri Charity's father:
``You have a mob of people that are more concerned with zapping
people than they are with justice. There's a tremendous amount of
bigotry. . . . What reason does this man (Alberi) have for torturing
these people? You can't play with people like that. . . . These
people are motivated like people in Virginia were years ago, to drag
people out of jail and lynch them. This is an issue the jury should
know about.
David Baugh, Charity's defense attorney:
``I don't see what this has to do with this trial. . . ( or
case). It was done as a metaphor, I had that string in my pocket.
This is a metaphor for DNA. . . . I was addressing people in jest. I
regret that Charity's parents saw that noose. That's unfortunate. It
wasn't intended for them. I'm experiencing fatigue. If we're blowing
off steam inappropriately, that's one thing, but to initiate a
subproceeding (like this hearing) is inappropriate. DNA convicted
the defendant.''
Albert Alberi, prosecutor:
``I took Alberi and admonished . . . him for having the noose
where family members could see it. Mr. Alberi's response was ``It's
for me, not Mr. Charity.'' He was expressing his own frustration. .
. In hindsight, it was inappropriate for Mr. Alberi to do that, but
he was expressing frustation.''
Bob Humphreys, Virginia Beach Commonwealth's Attorney
KEYWORDS: RAPE TRIAL by CNB