Tag: dave heilberg

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In brief: Rice reactions, RBG ruling, TJ’s party over, and more

Paige Rice at a City Council meeting following the KKK rally in July 2017. eze amos

‘Odd’ indictment

The felony embezzlement charge against former City Council clerk Paige Rice, 37, for an iPhone and Apple Watch valued at more than $500 has many scratching their heads.

“It seems very unusual it got to this point without a resolution,” says attorney Scott Goodman. “It seems like something that could have easily been resolved without a felony indictment.”

A former city employee who spoke only on the condition of anonymity says, “It seems kind of odd to me someone didn’t call her and say, you need to return the phone, rather than sneak around and charge her with a felony. Particularly with her husband working there. It’s very odd.”

Rice is married to Joe Rice, deputy director of communications for the city. Neither responded to C-VILLE’s phone calls.

Rice was a fixture at council meetings for eight years. Last July she was named chief of staff to manage two new employees at the disposal of councilors. The job came with a salary bump from almost $73,000 to $98,000. The larger council staff had been touted by then-mayor Mike Signer, but was criticized by Mayor Nikuyah Walker, who call for a guest audit of the position and its pay.

Rice’s resignation letter came barely two months later on September 12. She took a job at the Focused Ultrasound Foundation as chief of staff.

Attorney Dave Heilberg says embezzlement is a crime of taking property with which one has been entrusted, but Rice’s case “is not as clear cut” as that of an accountant who writes herself a check. What Rice was told about the equipment could be a factor in her defense, and he points out that “technology goes out of date really fast” when assessing its value.

A grand jury from both Albemarle County and Charlottesville—which is also unusual, says Heilberg—indicted Rice June 7. And court records show the date of the offense as October 5, Rice’s official last day.

Goodman says the indictment could have consequences that “could be ugly,” particularly if Rice has information about other people in the city in similar circumstances who didn’t get indicted.

A city release announcing Rice’s resignation said, “The City Council appreciates the service of Ms. Rice over the last eight years and wishes her the best as she moves on to the next exciting phase in her professional life.”

Her next court appearance is August 19.

Quote of the week

“The House [of Delegates] has no prerogative to select its own members.”—Justice Ruth Bader Ginsburg in a U.S. Supreme Court decision that upholds a lower court ruling that Virginia’s legislative districts were racially gerrymandered

In brief

B’day non grata

At its June 17 meeting, City Council took steps to remove the birthday of local icon Thomas Jefferson, April 13, as a paid city holiday and to replace it with Liberation and Freedom Day, March 3, which commemorates the arrival of Union forces and the emancipation of the area’s 14,0000 enslaved people. Albemarle will discuss ditching Jefferson’s birthday at its June 19 meeting.

Are luxury condos in the Dewberry’s future? Skyclad Aerial

Dewberry condos?

Not much activity has been seen on the ground at the site of the alleged Dewberry Hotel, now celebrating its 10th anniversary as a wraith towering over the Downtown Mall. But the Progress reports some movement on the Dewberry Group website, and renderings of the hotel have migrated from its hospitality to its living section, with a new name: the Laramore.

Deadbeat guv pays up

West Virginia Governor Jim Justice finally paid the  $311,000 in back taxes his company owed to Albemarle County, plus the current tax bill, reports the DP’s Allison Wrabel. The county had started the process to sell 52 of Justice’s 55 parcels because of the large arrearage.

AG okays THC

Virginia Attorney General Mark Herring spoke out in favor of legalizing recreational marijuana in an op-ed published in both the Daily Press and The Virginian-Pilot on Sunday. The General Assembly has yet to pass any measures on the issue, but decriminalization has been an issue generally shot down by Republicans in past sessions.

Rural broadband access

Central Virginia Electric Cooperative’s subsidiary, doing business as Firefly Fiber Broadband, will receive $28.6 million of FCC funds to provide 1 gigabit internet speeds for over 11,000 homes and businesses in central Virginia over the next 10 years.

Election turnout: Not great

Off-year elections traditionally have lower turnout, and this year’s June 11 primary was no exception. With no presidential or gubernatorial candidates at the top of the ballot, many voters chose to sit out the primary, despite several local General Assembly races.

  • The 57th District, which includes Charlottesville and the Albemarle urban ring, had the highest turnout—15.7 percent—in state General Assembly elections, according to Virginia Public Access Project.
  • The 17th Senate District, which had both a Democratic and Republican primary, brought in a much lower 5 percent of the electorate in each race.
  • Total Charlottesville turnout (including City Council primaries) was 19 percent, compared to 27 percent in 2017.
  • Total Albemarle County turnout (including races for sheriff and Rivanna supervisor) was 10 percent.
  • In 2017, county turnout was 19 percent for the Democratic primary for governor and .05 percent for the Republican primary.
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‘Unfortunate outcome:’ Kessler perjury charge tossed

After his perjury charge was dismissed, Jason Kessler accused Commonwealth’s Attorney Robert Tracci of trying to do a “political hit job.” Eze Amos

 

Jason Kessler didn’t waste any time addressing the media outside the courthouse March 20 when a judge abruptly dismissed a perjury charge against him during the trial.

“[Robert] Tracci is trying to do a political hit job,” he said to the cameras and microphones, adding that he and other attendees of August 12 rally he organized, including “Crying Nazi” Christopher Cantwell, have been targeted by the Albemarle commonwealth’s attorney. “This was an attempt to undermine my credibility so I can’t testify about the city of Charlottesville and their sabotage of that rally that got people hurt. And no one on any side should have gotten hurt.”

Kessler was accused of lying under oath at the local magistrate’s office following a January 2017 altercation with another man on the Downtown Mall. Defense attorney Mike Hallahan made a motion to strike the charge against his client immediately after resting his case, arguing that the prosecutor did not prove that the alleged crime took place in Albemarle County, and that the burden to establish venue is on the commonwealth.

Tracci, who could be heard asking his legal team if they had “any ideas” just minutes before the discharge, made a brief statement outside the courthouse that he was “obviously disappointed,” and said in an email that his office is examining potential steps to take.

“We count on our commonwealth’s attorney to do the best job he can and sometimes it’s not enough,” said local attorney Timothy Read, who was observing the trial. He said the perjury charge can’t be brought against Kessler again because of double jeopardy. “I’m very surprised that it happened here in a case with this much attention. …I think it’s an unfortunate outcome.”

Local legal expert Dave Heilberg says that while all trial attorneys make blunders, the rookie mistake won’t bode well for Tracci in the next election.

“Head prosecutors who are mostly office administrators before showing up to grandstand for their big cases sometimes make these errors,” he says. “Voters don’t forget these unforgivable mistakes.”

The perjury charge stemmed from a Downtown Mall scuffle when Kessler asked passersby to sign a petition to remove then Vice-Mayor Wes Bellamy from office for offensive tweets he made before being elected. Community members saw it as a racial attack when the right-wing blogger put his hit out on the only African-American city councilor, and Kessler testified that many people would curse him over their shoulder when he asked for their signature on his document.

But when Jay Taylor approached and took the petition from Kessler, reading it for a few moments and calling Kessler a “fucking asshole,” the man on trial for perjury said he perceived a threat.

Video evidence submitted in court showed Kessler slugging Taylor upside the head, but Kessler’s sworn statement to the magistrate at the Albemarle-Charlottesville Regional Jail was that Taylor had assaulted him first, by “violently shaking” his arm when he took the petition from Kessler and making “face to face” contact.

In the defense’s opening argument, Hallahan, who wore a long, pink tie, portrayed the result of Taylor’s alleged assaultive behavior by making a swing with his right arm and exclaiming, “BAM!”

Hallahan persisted that Kessler acted in self defense, and that his client’s written account of what happened, made under oath to a magistrate, was true. On the witness stand, Kessler admitted that “shaking,” wasn’t the best word to use and that the “face to face” contact he referred to consisted of Taylor standing about a foot away. In April, Kessler pleaded guilty to misdemeanor assault of Taylor.

Jason Kessler addresses the media after flipping off a C-VILLE reporter and pleading guilty to assaulting Jay Taylor in April 2017. Staff photo

Tracci showed a Newsplex clip of Kessler being interviewed on the day of that guilty plea, in which he said, “Man to man, yell in a man’s face and expect to get punched in the face.”

During the perjury trial, Taylor testified he was walking on the mall with his dog and a cup of coffee when he saw Kessler, with whom he was acquainted, and asked to read the petition, even though he wasn’t a city voter.

Taylor said he realized that the petition wasn’t supposed to make anything better, that it was all about creating chaos, and that’s when he handed it back and called Kessler the expletive. After Taylor got clobbered, he said Kessler apologized, asked him not to call the cops and said he was just having a “bad day.”

“Yeah, I was having a bad day, clearly,” Kessler testified. “I try to be [a nice guy], [but] I don’t always succeed.”

It took nearly three hours to seat a jury of 10 men and three women out of a pool of 60 potential jurors, because more than a dozen told the judge that they were familiar with the organizer of the Unite the Right rally and Hallahan elected to individually interview them.

“I will admit that I have a preconceived idea about whether he committed perjury,” said one unnamed juror during her interview. “I believe he lied.”

She was dismissed. Another woman who was relieved of her duties said she knew Kessler as the guy who wanted to remove the city’s Confederate war memorials of General Robert E. Lee and Thomas “Stonewall” Jackson.

“She might be the only person in Albemarle County who thinks Mr. Kessler wants to take the statue down,” said Hallahan after she left the room, and there was a brief moment of unity, where the defendant’s supporters and opponents shared one thing: a nervous giggle.

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Activist group encourages resistance—to grand juries

Solidarity Cville encourages August 12 victims who are subpoenaed to testify before a federal grand jury to not cooperate. Staff photo

“I was already run over by a car, I will not be bullied by the federal government,” said Star Peterson, a victim of the August 12 vehicular attack in which a white supremacist bowled over a group of counterprotesters with a dark gray Dodge Challenger.

Peterson was among about 20 members of activist group Solidarity Cville, who gathered in front of the United States District Court on West Main Street on December 13, to protest what they call state repression.

The group says at least two victims of the summer’s Unite the Right rally have been subpoenaed to testify before a federal grand jury about the events of the tragic day that left three people dead and dozens injured.

An assistant U.S. attorney has justified the subpoenas by saying he’s only seeking to indict the white supremacists and neo-Nazis who took over the town, such as James Fields, the alleged driver of the Dodge, according to Ibby Han of Solidarity Cville.

“Yet, we don’t know if they are also seeking to indict the anti-racist activists who defended our community this past summer,” she said at the protest.

U.S. Attorney’s Office spokesperson Brian McGinn offered a written statement dated August 13, and said the office is unable to comment further because it is an ongoing investigation.

“The Richmond FBI Field Office, the Civil Rights Division and the U.S. Attorney’s Office for the Western District of Virginia have opened a civil rights investigation into the circumstances of the deadly vehicular incident that occurred earlier Saturday morning,” said U.S. Attorney Rick Mountcastle in the statement. “The FBI will collect all available facts and evidence and will ensure that the investigation is conducted in a fair, thorough and impartial manner.”

Han says people who have been subpoenaed and refuse to cooperate with the federal prosecutor and grand jury face serious jail time.

“The survivors of a terror attack should not be subjected to 18 months in jail simply for refusing to participate in the unjust process of a grand jury,” she said, adding that people who are called to testify aren’t allowed to have their attorney present in the room. “The prosecutor may ask any and all questions they deem relevant, and they are not obligated to reveal the subject of their investigation.”

Legal expert Dave Heilberg says if a witness doesn’t show up to testify when summoned, she can be held in contempt and sanctioned, possibly in jail. If a witness appears and refuses to testify before the grand jury and invokes her Fifth Amendment rights, she is sometimes given immunity and required to answer questions anyway, even if incriminating.

The Fifth Amendment protects people from being forced to be witnesses against themselves.

“If they then refuse to answer, they can be held in contempt and face the same sanctions,” Heilberg says.

In Han’s plea for subpoenaed victims to not cooperate, she claims grand juries have historically “been used as a tool of political repression to surveil and incriminate social movements.”

And so far, federal prosecutors have “backed down” when at least one victim refused to be cooperative, she said. “Resistance works.”

Advises Heilberg, “Nobody who is subpoenaed as a grand jury witness for any reason should follow the unqualified and unauthorized legal advice of any third party or organization.”

 

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UPDATED: Middleditch enters Alford plea, will serve less than half a year in jail

Andrew Middleditch (left) and his attorney, Fran Lawrence, address media outside of the courtroom after he entered an Alford plea in his involuntary manslaughter charge. Staff photo

 

On the second day of his jury trial, prominent realtor Andrew Middleditch, 56, pleaded guilty to his second DUI offense and entered an unexpected Alford plea before the closing statements related to his involuntary manslaughter charge, which came from a Memorial Day car crash that killed 78-year-old Lonnie Branham.

When the judge asked Middleditch if he made the decision to enter the plea on his own, he did not immediately answer yes. He also asked the judge to explain the meaning of an Alford plea after he entered it.

An Alford plea is not an admission of guilt, but rather an acknowledgment that a jury has enough evidence for a conviction.

Once sentenced to five years in prison, with all but 90 days suspended for the involuntary manslaughter charge, and 12 months for the second drunk driving offense, with but 40 days suspended, Middleditch stood and faced the family of the victim.

“I want you to know something from the bottom of my heart,” he said, his voice shaking. “I really wanted to go to the funeral and they told me I couldn’t.” He added that he is “very, very sorry,” and that he was suffering addictions that he has since gotten under control. He also said he still feels like he didn’t cause the accident.

Outside of the courtroom, teary-eyed family and friends gathered around Leigh Middleditch, the defendant’s father who has served on UVA’s Board of Visitors, and Betty Middleditch, the defendant’s mother. “He was so brave,” one said to the parents, and another said, “I’m so proud.”

“Mr. Middleditch still feels like he didn’t do anything wrong,” defense attorney Fran Lawrence said outside the courthouse, adding that his client chose to take the Alford plea because it was difficult to tell what the jury was thinking. He said his client is committed to sobriety, his family and his role in the community.

“Somebody who’s never been in serious trouble has difficulty admitting to himself that he might have done something wrong,” says C-VILLE legal expert Dave Heilberg about why Middleditch might have chosen to take his case to trial. “Sometimes you have to get a jury trial started before a defendant is ready to hear what the evidence against him might be.”

Heilberg says the Alford plea could have been used as a device to keep from having liability admitted.

A wrongful death lawsuit filed against Middleditch by Branham’s family has been settled, according to the family’s attorney, Greg Webb.
Middleditch will report to the Albemarle Charlottesville Regional Jail on May 20 to serve his time.

Read about the first day of his trial here.

In August 2014, Charlottesville author and world renowned journalist Donovan Webster, also 56 at the time, killed Wayne Thomas White Sr., a 75-year-old from Waynesboro, on Route 151 in a similar drunk driving and involuntary manslaughter case that was also prosecuted by Quatrara.

Webster pleaded guilty to the charges in February 2015 and was sentenced to two years in jail.

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Legal expert speaks to Jesse Matthew’s anticipated guilty plea

Hannah Graham and Morgan Harrington. Photos courtesy Charlottesville Police Department and Virginia State Police

Jesse Matthew is set to enter a plea deal in the abduction and murder of Hannah Graham and Morgan Harrington in Albemarle Circuit Court on March 2.

Commonwealth’s Attorney Robert Tracci issued a letter February 29 stating that although it is anticipated that Matthew will plead guilty and resolve both cases, Tracci’s office will not provide any additional details or comments before the hearing.

Legal expert David Heilberg says most capital murder cases now end in plea bargains, and he expected this as the likely outcome for Matthew and his defense attorneys, Doug Ramseur and Michael Hemenway.

“It would take the death penalty off the table,” which Heilberg says is likely Matthew’s motivation. “At this point, it can’t get any worse.”

Last summer, Matthew was given three life sentences for abducting and sexually assaulting a Fairfax woman in 2005. “You only have one life to serve,” Heilberg adds.

Matthew is accused of capital murder in the death and abduction of Graham, an 18-year-old UVA student who disappeared September 13, 2014, and was found dead several weeks later on Old Lynchburg Road. He has also been indicted by a grand jury for the 2009 murder and abduction of Harrington, a Virginia Tech student, who was last seen at a Metallica concert at the John Paul Jones Arena that October. She was 20 years old at the time.