THE VIRGINIAN-PILOT
Copyright (c) 1996, Landmark Communications, Inc.
DATE: Sunday, March 3, 1996 TAG: 9603020344
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON AND JUNE ARNEY, STAFF WRITERS
DATELINE: VIRGINIA BEACH LENGTH: Long : 291 lines
It was a regrettable joke, he would say later, a tension-breaker for the four victims awaiting sentencing of the man they said sexually assaulted them.
During a court recess, chief deputy prosecutor Albert D. Alberi picked up the six-foot piece of string he had used earlier as a prop to portray a strand of DNA, a key piece of evidence linking Kerri Charity to the victims.
He twisted the strand into a noose, then made a joke.
``This is a DNA molecule,'' he said, swinging the noose back and forth.
Whether Alberi knew it is unclear, but Charity's parents also were sitting in the courtroom. They saw the gesture, and to them it signified a lynching. The Charity family is black.
James Charity, the defendant's father, recalled the moment.
``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.' ''
Charity's attorney demanded a mistrial. But jurors did not see the incident and the judge let the sentencing continue. The jury recommended a sentence of seven life terms plus 80 years.
Alberi apologized. ``I regret that Charity's parents saw that noose,'' Alberi said at the time. ``It wasn't intended for them.''
Commonwealth's Attorney Robert J. Humphreys said in court that he reprimanded Alberi, attributing his poor judgment to the mental stress and fatigue of the high-profile case.
``There's no excuse for it, but . . . I don't know if Superman could have withstood it.''
Superman or demon? Which is the real Al Alberi?
That question arises with new urgency as the General Assembly considers Alberi for appointment as a Juvenile and Domestic Relations Court judge. It's the second time Alberi has been considered for a judgeship.
In 1994, it was for a seat on the General District Court bench. Members of the city's bar association favored two other attorneys, rating Alberi as ``not qualified'' under a code requiring that a candidate be of ``undisputed integrity'' and possess ``judicial temperament which includes common sense, compassion, decisiveness, firmness, humility, open-mindedness, patience, tact and understanding.''
Alberi's qualifications take on added significance in light of the criticism of his handling of a death-row case now making its way through federal appeals court.
Joseph R. O'Dell III was convicted in September 1986 for the murder of a Virginia Beach secretary and sentenced to death. Alberi was one of two prosecutors at his trial. Today, the death-row case is jeopardized by two issues that do not involve Alberi: new DNA evidence that apparently contradicts the state's evidence during trial; also, a federal judge ruled in 1994 that O'Dell deserves a new sentencing because jurors were not told he would be ineligible for parole if they gave him life in prison.
But O'Dell's lawyers have raised other questions about the case, including a letter Alberi wrote to one of O'Dell's expert witnesses, Dr. Dianne Lavett. She interpreted the letter as intimidating.
Alberi has repeatedly declined requests for interviews about the controversies surrounding him. Others interviewed declined to be quoted by name. The picture that emerges from those interviews and court records is of a man revered by his friends and colleagues, but feared and distrusted by many of the defense attorneys, police officers and defense witnesses who have opposed Alberi during his nearly 20 years as a prosecutor.
Alberi has won some of the Beach's toughest cases in the last 10 years, including the capital murder trials of Richard Townes, recently executed, and Russel Burket, who killed the wife and daughter of a Navy SEAL, which Alberi co-prosecuted with Humphreys. But his aggressive style has resulted in complaints of mistakes and poor judgment.
For example, in 1988, a judge dismissed a murder confession Alberi had obtained when he made a plea bargain with a suspect. Jeffrey Allen Middleton was already serving time in prison on two rape convictions when, in return for a confession to murdering a 27-year-old waitress, Alberi promised to seek no more than 10 years additional jail time.
With hesitation, Middleton agreed to the deal - and unwittingly set himself up for life in prison. A conviction would make him a ``three-time loser'' under Virginia law, meaning he would have had to serve all of his accumulated jail time with no hope of parole. The state's ``three-time loser'' law had taken effect in 1984.
Alberi's bargain was ``false and deceptive'' and ``inherently unfair,'' the judge, John K. Moore, wrote in throwing out the confession and dismissing the murder charge.
Alberi told Moore that he was unaware of Middleton's previous convictions. However, Moore said Alberi was involved in Middleton's sentencings.
Moore didn't buy the explanation.
``It is difficult to understand how an assistant commonwealth's attorney with 10 years of experience who was previously involved in the prosecution of the defendant. . . was not aware that a conviction of second-degree murder would result in the defendant being ineligible for parole,'' he wrote in his ruling.
Alberi, in an interview with a reporter for The Virginian-Pilot published April 26, 1988, explained the ruling as he saw it:
``Basically, the judge is asking `Why didn't Alberi see this.' Prosecutors are busy people. It's easier to see the whole system from the judge's point of view. But when you're down here on the ground, things look a lot different.''
Judges have reprimanded Alberi but have never punished him.
Some lawyers say the Circuit Court judges have let Alberi go unchecked. One of those is Moody E. ``Sonny'' Stallings Jr., a former Democratic state senator who supported the election of some of the judges.
``The judges have appeared to be reluctant to discipline some of Mr. Alberi's courtroom shenanigans. The perception in the bar is that he hasn't been dealt with harshly enough,'' Stallings said.
After facing Alberi in 1994 and 1995 as Charity's attorney, David Baugh said he thinks Alberi views himself as ``an avenging angel.''
``I get the impression that he has no faith in the law,'' Baugh said. ``He feels he has to help it. He's got to give it that extra nudge to make sure it comes out right.''
Allies and adversaries seem to agree that Alberi considers himself the front line of defense for victims.
During the Charity trial, Alberi ``made us feel like our case was the most important thing he was working on,'' said a 25-year-old victim, who asked not to be named. ``He thanked us and let us know how grateful he was that we were helping out.''
Humphreys enthusiastically defends his chief deputy, whom he calls ``The Professor'' and ``a walking encyclopedia of the law.
``When something happens out of the blue that no prosecutor's ever dealt with before, or no cop knows quite how to deal with, Al gets the call,'' Humphreys said.
``While most of his efforts on behalf of the citizens of Virginia Beach go unsung, he has been the driving force behind the successful prosecution of some of the largest drug rings, most vicious rapists, and most brutal murderers . . . in Virginia Beach's history,'' Humphreys said.
By all accounts, Alberi is a force to be reckoned with in the Beach courts. His courtroom style in murder trial of Kelly Dara, charged in the slaying of a high-school classmate, was methodical and authoritative. He delivered to jurors just what he promised in his opening statement. He seemed to anticipate - and thus exploit - defense strategy.
Alberi, 51, grew up in Washington. His father was a Pentagon lawyer, his brother a Secret Service agent. After graduating from Boston College in 1966, he spent two years in the law school at the University of Virginia, and two in Vietnam, leaving as a first lieutenant. In 1971, he worked as a police officer with the Virginia Beach Police Department's summer law school program. The following year he finished his law degree. For 5 1/2 years he was a prosecutor in the Norfolk Commonwealth's Attorney's Office, where he worked alongside Humphreys.
One of Humphreys' first official acts after taking office in 1990 was to appoint Alberi chief deputy. Today, in addition to his regular caseload, Alberi spends about half his time training prosecutors and police officers in ethics and legal issues, Humphreys said. Until about 1993, Alberi also was in charge of supervising staff attorneys, but Humphreys shifted those duties to ease the load, he said.
On Jan. 1, Alberi's salary was $86,737. He is one of nearly two dozen prosecutors handling cases in a city where there were 29,898 arrests in 1994 alone. Of those, 21,228 were designated as serious crimes by the FBI.
Alberi endears himself to subordinates, telling those with children to go home to their families rather than work late, according to interviews. A family man himself, Alberi also has a reputation within the office as a practical joker who can take a joke at his own expense.
Humphreys also considers Alberi his right-hand man. Yet, it is Alberi's role as the office's chief legal expert that has embroiled him in so many controversies - controversies that have increased in the last two years as his caseload has increased, records show.
Since Alberi's caseload increased around 1994, his demeanor has changed, friends and co-workers say. He has become more serious, less playful.
They also worry about his health, a subject Humphreys refuses to discuss. At times, say Alberi's friends, a tremor takes possession of his hands and makes it difficult for him to put his hands in his pockets.
During the time his caseloead has been increasing, three cases Alberi handled have drawn allegations of mistakes and misjudgments:
Kelly Dara: Alberi took responsibility for withholding evidence from defense attorneys in the case of 17-year-old Kelly Dara, accused of fatally stabbing her Salem High School classmate Joseph D. Garcia III, 17. The error led Alberi to withdraw the charges in adult court and try to refile them in juvenile court, but the juvenile judge said he no longer had jurisdiction. To save his case, Alberi then had to directly indict her in adult court.
A subsequent trial and conviction of Dara in Circuit Court in September is now on appeal.
Alberi has said he did not intentionally withhold evidence. A file containing the possibly favorable evidence arrived in the commonwealth's attorney's office a week before Dara's April 5 hearing in juvenile court. But Alberi said he did not learn about it until afterward, then turned it over.
``The thing that hurts the most is that by trying to do the right thing, I have put the whole case into some danger and confusion,'' Alberi said last May. ``You make one serious mistake like this and the public will never forgive you, nor will the people involved. . . The mistakes you make can carry awesome consequences.''
Dara's attorneys say the conviction will be overturned on appeal because withheld evidence tainted the case.
``It may be a harsh result, but it's a fair result under the law,'' said Thomas B. Shuttleworth, one of Dara's attorneys. ``I don't think they can ever try her again in any court.'' Prosecutors contend the conviction will stand.
The obscenity panel: A pornography investigation planned by Alberi and begun in October 1993 produced several convictions. But charges against the only defendant to fight back in court were dismissed when a police officer's testimony revealed that a search warrant had been improperly served. While it is unclear whether Alberi had a role in the botched search warrant, he did acknowledge circumventing normal court procedure by failing to file subpoenas for witnesses in the case.
Early on, Alberi recruited an eight-member panel, all white Protestants, to review allegedly obscene items obtained from six businesses. The panel included five members of the same Methodist church and a former city councilman who led an anti-smut campaign in the 1970s.
Defendants and their attorneys questioned whether the panel represented a true cross-section of Virginia Beach residents or a stacked deck. But Humphreys said his office went to the Methodist church because two of the stores were located within two blocks, one even visible from the church's front steps.
The panel's job was not to set community standards, Humphreys said. ``They're simply witnesses who say `In my opinion. . . .' We could have picked 12 nuns or one nun.'' Then the case goes to a jury, he added.
According to W. Thurston Harville, a member of the Due Process and Fair Practice Committee of The Virginia College of Criminal Defense Attorneys: ``The whole idea of a secret panel hand-selected by a prosecutor, I end up sputtering, just to talk about it. It's just reprehensible. It's just trampling on the spirit of the Constitution.''
William S. Geimer, a law professor at Washington and Lee University, said Alberi's move ``clearly circumvents the process'' by preventing those accused of crimes from learning the identity of their accusers.
``There's a return on subpoenas (they are filed in court) because that is the way, finally, the defendant finds out who's going to testify against him,'' Geimer said.
Virginia Beach Circuit Court Clerk J. Curtis Fruit said at the time: ``The commonwealth's attorney's office has issued subpoenas on their own before, but then we get a record of it. . . I don't recall any situations where the commonwealth's attorney issued a so-called secret subpoena that nobody had any record of.''
A state statute says that the commonwealth's attorney may subpoena witnesses, provided the office also ``file with the clerk of the court the names and addresses of such witnesses.''
Alberi said in an October, 1994 letter to The Virginian-Pilot that he withheld the names to protect the privacy of the witnesses, then forgot to file them when one of the defendants pled guilty.
The Joseph O'Dell case. In September 1986, a Virginia Beach jury convicted O'Dell, now 54, of sodomizing, raping and strangling Helen C. Schartner. Two months later, Circuit Judge H. Calvin Spain sentenced O'Dell to die. Alberi and Steve Test were the prosecutors in the case.
Since there were no eyewitnesses to Schartner's slaying, the state's case depended largely on science. Tests taken soon after the murder showed that Schartner had type O blood with several enzyme ``markers.'' A state forensics expert, Jacqueline Emrich, compared the victim's blood to that found on O'Dell's clothing and in his car. The samples were ``consistent,'' meaning the blood type and enzymes were similar, Emrich testified. They were the best tests then available.
Dianne Lavett was one of two forensic scientists to testify on behalf of O'Dell. She testified that Emrich's lab techniques were flawed and her findings questionable. In a July 1986 letter, Lavett told O'Dell she thought he was being ``framed.'' Jailers confiscated the letter and Alberi eventually learned the contents.
One day after jurors sentenced O'Dell to death, Alberi wrote Lavett, telling her he considered the letter to O'Dell ``actionable libel of Mrs. Emrich.''
Alberi wrote: ``I am recommending to Mrs. Emrich that she consult a competent tort lawyer for full review of a potential lawsuit against you. For your sake, I hope you are as poverty stricken as you claim, because, if you are not, you may well be at the conclusion of all the civil litigation.''
He concluded: ``Please feel free to come to the City of Virginia Beach in the future. Steve Test and I both look forward to `spanking' you as thoroughly as we did in this case. You were worth every penny you were paid!''
A month later, O'Dell brought Alberi's letter to court. Its effect, he told Judge Spain, was to cause Lavett and other forensic scientists to fear testifying at his sentencing or appeals.
``They fear now that because of their helping me. . . they're going to be faced with civil actions. . . ,'' O'Dell said.
Spain hit the roof. ``Somebody's liable to wind up behind bars. . . if this conduct occurs again,'' he said. He never imposed sanctions.
Humphreys recently called Spain's comments ``ridiculous bluster,'' and added that ``the Supreme Court of Virginia characterized this letter as nothing more than a `minor deviation.' ''
In the end, state legislators must evaluate Alberi's character and integrity and decide if he has the qualifications to be a judge. In 1994, Beach lawyers deemed him ``not qualified.'' This year, Alberi will be judged again.
Months after Charity's conviction, his lawyer, Baugh, himself a former prosecutor, remained troubled by Alberi's DNA noose.
``That signified to me the absence of professional detachment to prosecute these kinds of cases,'' he said. ``When prosecutors think these people are not worthy of respect then they can justify doing things they would not normally do. I think that Mr. Alberi in his own distorted way is looking at the end result and not the process.''
Humphreys bristles at criticisms of Alberi. ``This is like saying the Pope is not a good Catholic to say Al Alberi is not a good prosecutor,'' he said.
``Al's compass is to be fair to people, not win at all costs.'' ILLUSTRATION: Graphic
Photos
THE CHARITY CASE
THE DARA CASE
THE O'DELL CASE
[For complete graphic, please see microfilm]
KEYWORDS: PROFILE BIOGRAPHY JUDGESHIPS VIRGINIA BEACH< by CNB