Tag: denise lunsford

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Immune system: Weiner sues Lunsford for prosecutorial misconduct

Then-Commonwealth’s Attorney Denise Lunsford talks with reporters outside of the Albemarle Circuit Court after Mark Weiner’s sentencing was delayed in July 2014. Mark Weiner exits the Albemarle-Charlottesville Regional Jail in July 2015 after he spent more than two years in jail for a crime he says never took place. Staff photo

The man who was convicted of abduction with intent to defile and who spent two-and-a-half years in jail before the alleged victim’s story fell apart filed suit July 14 against the former commonwealth’s attorney who prosecuted him.

Mark Weiner, now living in Maryland, filed a civil lawsuit in federal court July 14—exactly two years after the day he was released from jail—against Albemarle County, the commonwealth’s attorney office and Denise Lunsford.

In December 2012, former Food Lion manager Weiner offered a ride to then-20-year-old Chelsea Steiniger, whose boyfriend had refused to let her spend the night. Steiniger claimed that Weiner put a cloth over her face with a mysterious agent that rendered her unconscious, used her phone to send taunting texts to her beau, and that she awakened in an abandoned house on Richmond Road, where she grabbed her phone, leaped off a second floor deck and escaped.

After Weiner was convicted in May 2013, his lawyer complained that Lunsford prevented him from entering exculpatory cell tower records that showed Steiniger was likely at her mother’s house.

The case became a national story and was a major factor in Lunsford’s unsuccessful bid for a third term in the November 2015 election, when Republican Robert Tracci unseated her.

Weiner’s civil attorney, Barton Keyes, is a member of a wrongful conviction practice in Columbus, Ohio.

Despite the formidable immunity Lunsford had as prosecutor, Keyes says, “We think in this case, the circumstances will let us hold her accountable.”

The complaint did not specify monetary damages but Keyes says, “Mark spent over two years in prison. We’re talking substantial damages.”

Lunsford sent a statement through her Richmond McGuireWoods attorney and says she conducted her duties as commonwealth’s attorney “diligently, ethically, and to the best of my abilities.” She says she’s proud of her service in protecting the interests of justice and safety in the community. “As a private citizen now, I intend to defend my personal and professional reputation in court, and not in the press,” says Lunsford.

Tracci issued his own statement: “Because the office I serve is named in this suit, I will reply to its merits when appropriate and in due course. Without speaking to the merits of this suit, my personal views concerning the handling of the Mark Weiner case are widely known and a matter of crystal clear record.”

Experts say prosecutorial immunity will be a tough hurdle for Weiner to overcome.

“The main legal obstacle to holding prosecutors accountable for misconduct that leads to wrongful convictions is that they have absolute immunity for civil damages for their lawyering in the courtroom,” says UVA Law’s Brandon Garrett. It’s even harder to know if prosecutors concealed evidence of innocence “because in states like Virginia, they need turn over so little of what is in their files,” he adds.

Steve Rosenfield was an attorney in one of the few successful civil suits waged in a wrongful conviction, in which his client, Earl Washington Jr., came within nine days of execution. Rosenfield says Weiner “is on solid footing morally. Legally, he’s likely to run into serious barriers.”

Deirdre Enright heads UVA’s Innocence Project Clinic, and three years ago she said Weiner’s case “had all the earmarks of a bad case because it didn’t make sense.”

Immunity makes prosecutors and police “Teflon to meaningful consequences,” even though their misconduct is a leading cause of wrongful convictions, she says. “The average citizen will pay a fine for a broken taillight, but most prosecutors won’t pay a dime for their role in wrongfully convicting someone, however nefarious their conduct.”

Keyes says Lunsford proceeded to prosecute “despite clear evidence that contradicted [Steiniger’s] story. Most egregious, he says, was that it appears “the prosecutor was thinking her sole role was to secure a conviction when in reality a prosecutor’s job is to secure justice.”

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Comings and goings draw more attention than Jesse Matthew

Gil and Dan Harrington drove two hours to be at a five-minute hearing for their daughter's accused murderer, and say they feel "honor bound" to be there. Staff photo

The status hearing for accused murderer Jesse Matthew had the former Monticello High student in court December 17 for what was basically the postponement of scheduling a motion hearing to bring in uncharged crimes during sentencing, should he be convicted of the murder, abduction and capital murder of Hannah Graham in July.

Garnering more attention during the brief hearing in Albemarle Circuit Court was Commonwealth’s Attorney Denise Lunsford, who hands over the keys to the prosecutor’s office January 1 to Robert Tracci. He was there, and had been in the same court earlier in the day to be sworn in to the job that’s still Lunsford’s for two more weeks.

Before Matthew came into the courtroom, Jon Zug, clerk of court-elect, told Judge Cheryl Higgins that this would be his last appearance before her as assistant commonwealth’s attorney. Higgins came down off the bench and walked in front of it to shake Zug’s hand. “Good luck,” said the jurist.

More somber were the parents of Morgan Harrington, the Virginia Tech student whom Matthew is accused of murdering and abducting in 2009. Gil and Dan Harrington drove two hours from Roanoke to be at the hearing that barely lasted five minutes. Gil Harrington acknowledged the effort put in to be there, however briefly. “We really feel like it’s our duty,” she said. “We are honor bound to be here. It’s part of my covenant with Morgan.”

She noted the difficulty of the holiday season for parents of a dead child. “Maybe this is more of a distraction for us,” she said.

Although Matthew’s DNA was linked to Morgan Harrington during the course of the fall 2014 Hannah Graham investigation, he was not indicted with her death until September 2015, nearly six years after Harrington was last seen alive. “This is a really slow process,” said Gil Harrington.

That Matthew was charged in her daughter’s death has given the Harringtons some “psychic relief,” she said. “We feel more progress toward celebration and joy than in the past.”

After the hearing, Lunsford explained she was providing notice that the commonwealth would seek to use unadjudicated conduct during Matthew’s sentencing, and a motion to hear that would be heard January 11. Although she declined to comment on the behavior, Matthew, 33, has been accused of sexual assault at both Liberty University and at Christopher Newport University, but was never charged.

Lunsford said she wouldn’t take questions about this being her last day because it wasn’t. As for her plans for 2016, she said, “I got a puppy.”

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Jesse Matthew in court for motions hearing

Commonwealth's Attorney Denise Lunsford leaves Albemarle Circuit Court followed by Jesse Matthew's attorneys Michael Hemenway and Doug Ramseur. Staff photo

The Jesse Matthew hearing December 7 was the last court appearance in the charges stemming from the murder and abduction of UVA student Hannah Graham for outgoing Commonwealth’s Attorney Denise Lunsford, and the man who defeated her in November and will take over the capital case, Robert Tracci, was in the Albemarle courtroom.

Tracci hugged Gil Harrington, mother of slain Virginia Tech student Morgan Harrington, whom Matthew is also charged with killing. Present, too, was Trina Murphy, great aunt of Nelson teen Alexis Murphy, who disappeared in August 2013.

Judge Cheryl Higgins approved a defense request for a $350-an-hour mental health evaluation by Dr. William Stejskal, who has testified in other high-profile murder cases, most recently in August in Alexandria when he said he’d diagnosed accused serial killer Charles Severance as having a form of schizophrenia.

And in an unusual move, Lunsford objected to the defense withdrawing a motion to exclude evidence and said Matthew’s attorney Doug Ramseur “would rather have this heard when the new commonwealth’s attorney comes into office.”

She also suggested Ramseur wants to withdraw the motion, scheduled to be heard December 17, because a detective who will testify for the prosecution is seriously ill and may not be available, a notion Ramseur rejected.

Ramseur argued that as a death penalty case, it was extremely important to do everything correctly.Motions in the case have been sealed, but when Judge Higgins scheduled the next hearing for January 11, she mentioned that 14 witnesses would be called, which could take a whole day.

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The Weiner factor: How one case derailed Denise Lunsford

Questions about the Mark Weiner case arose after his conviction in 2013. Judge Cheryl Higgins denied a motion to set aside the verdict in June 2014. Submitted photo

Unlike Charlottesville, where it was a given that Democratic candidates for City Council would win, Albemarle had several contested races, including two for board of supervisors and four candidates vying for clerk of court. But the race everyone was watching: Whether Commonwealth’s Attorney Denise Lunsford could hold onto her seat for a third term against challenger Robert Tracci.

When Lunsford ousted her predecessor, Jim Camblos, in 2007, former Albemarle supervisor and commonwealth’s attorney Lindsay Dorrier observed, “It’s hard not to make enemies in that job.” Camblos, who was seeking a fifth term, was blasted for the “smoke bomb” plot, in which four students were held in detention for months for allegedly planning to bomb a high school—even though some of them didn’t know each other and the evidence was meager.

Ironically, eight years later, another notorious case was on voters’ minds when they headed to the polls November 3 and repeated the ouster of an incumbent.

For Lunsford, the Mark Weiner case became the bête noire of her reelection efforts. Weiner, who was held in jail for two and a half years before his abduction conviction was vacated in July, became a national news story, and it was the issue Lunsford could not escape in her campaign. The weekend before the election, she accused Tracci of focusing solely on that case and threatened legal action for an ad that had Weiner’s sister saying Lunsford “withheld evidence” that would have cleared her brother.

“It was one factor in the race,” says Tracci. “For many people it was emblematic.” Tracci says he spoke to Lunsford the morning after the election and they both pledge a smooth and orderly transition. “I want to be as positive as I can going forward.”

However, he acknowledges that it was a contested race and Mark Weiner was a factor. “I do know the support I received was bipartisan,” he says. Lunsford did not return a phone call from C-VILLE.

Assistant Commonwealth’s Attorney Jon Zug, a Democrat who works for Lunsford, swept to victory with just more than 50 percent in the clerk’s race, unseating incumbent Debbie Shipp. From knocking on doors and being out in the community, he says, “To many, Mark Wiener was a huge issue, the result of statements Mr. [Steve] Benjamin [Weiner’s lawyer] made and reporting by your organization.”

Says Zug, “The impression that Denise intentionally withheld evidence—that is inaccurate. It’s exceedingly troubling to me that Denise Lunsford is being pilloried.” Zug blames Weiner’s original lawyer for not subpoenaing witnesses, and says, “Denise was adhering to the rules of evidence and she’s being faulted for it.”

Norman Dill, a Democrat who narrowly defeated Republican Richard Lloyd by 116 votes for the Rivanna District seat on the Board of Supervisors, says Weiner was a major factor in the prosecutor’s race. “It’s a complicated issue and hard for people to understand,” he says. “It’s easy to blame her, but it’s one case out of thousands she tried. I was disappointed she lost. I think she’s extremely well qualified.”

Scottsville Dem Rick Randolph, in the winner’s circle in that district’s Board of Supervisors race over Republican Earl Smith, says in conversations with the county’s police chief and sheriff, he never heard any issues with Lunsford’s “prosecutorial ability and ethics.” Says Randolph, “To extrapolate from one case over one’s body of work is very suspect.”

Upcoming for Tracci, a former special assistant U.S. attorney, is the high-profile capital murder case for Jesse Matthew for the death of UVA student Hannah Graham, as well as murder and abduction charges for the slaying of Virginia Tech student Morgan Harrington. In light of Matthew’s three life sentences for a 2005 brutal assault in Fairfax, legal expert David Heilberg is dubious that Matthew will go to trial.

“Albemarle is not a community that overwhelmingly craves a death penalty though individual opinions might differ,” he writes in an e-mail. “The cost to taxpayers seems wasteful where Matthews most likely will agree to multiple life sentences without an expensive capital trial or years of appeals.” Matthew has a pretrial hearing November 10 leading up to the trial scheduled for July 2016.

Another issue for the commonwealth’s attorney’s office, which will lose both Lunsford and Zug January 1, is whether Tracci will keep the current staff, which appeared on a couple of Lunsford campaign mailings. “Mr. Tracci could retain all, some or none,” says Heilberg.

Tracci says he plans to meet with with each of the prosecutors  to see what they bring to the office. “Also there’s something to be said for a measure of continuity,” he says.

“The law is nonpartisan,” he stresses. “The position is elected, but it should not be political.” And he reiterates his main campaign issue: “The duty of a prosecutor is to seek justice.”

 

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Upsets in Albemarle constitutional races

Incumbent Albemarle Commonwealth’s Attorney Denise Lunsford lost to Republican challenger Robert Tracci by 515 votes in a closely watched race, while other county Democratic candidates sailed to victory. Lunsford received nearly 49 percent of the vote to Tracci’s 51 percent.

Another constitutional officer, incumbent Clerk of Court Debbie Shipp, running as an independent, lost by an even bigger margin. Shipp took 26 percent of the vote in a four-way race, with Dem Jon Zug claiming 50 percent of the ballots cast.

In the Albemarle Board of Supervisors Rivanna District race, Norman Dill narrowly defeated Richard Lloyd. Democrat Dill took 48 percent of the vote to Republican Lloyd’s nearly 46 percent, and independent Lawrence Gaughan received 6 percent.

In the Scottsville District, Dem Rick Randolph bested Republican Earl Smith with 57 percent of the vote.

In the Charlottesville City Council race, unsurprisingly the Democratic ticket with Wes Bellamy, Kathy Galvin and Mike Signer swept to victory.

For more election 2015 results, check the Virginia Department of Elections.

 

 

 

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Down to the wire: Lunsford threatens lawsuit over Tracci ad

The most hotly contested county race between Dem incumbent Commonwealth's Attorney Denise Lunsford and Republican Robert Tracci got hotter over the weekend.

 

The week before the election, the Albemarle County commonwealth’s attorney race exploded with lawsuits, threats of suits and last-minute retorts in ads between the campaigns of incumbent Denise Lunsford and challenger Robert Tracci.

“The good news is that we have some excitement in local races,” says Richmond Sunlight creator and longtime local political observer Waldo Jaquith.

First was the Freedom of Information Act lawsuit filed by a Richmond attorney October 29.

On October 30, the Schilling Show reports that a Lunsford television ad uses images of Albemarle police officers, including Colonel Steve Sellers, without their consent and implying their endorsement. That ad is edited to include the text “no endorsement implied or intended.”

That same day, Lunsford’s campaign manager,  Thomas Cross, writes Tracci to demand that a television ad be pulled for a “false and defamatory statement” that Lunsford “intentionally” withheld evidence that exonerated Mark Weiner, who spent two and a half years in jail before his conviction for abduction was set aside. The letter also notes that Lunsford has retained powerhouse law firm McGuireWoods in the event Tracci does not edit or remove the ad.

Undeterred, Tracci campaign manager John Darden fires back October 31 with a missive pointing to widespread media coverage of the Weiner case, including excerpts from Slate and C-VILLE, which detail how Lunsford successfully kept out testimony about cell towers that Weiner supporters believe would have demonstrated the woman who accused him of abduction was likely at her mother’s home rather than in the abandoned house where she claimed Weiner had taken her. Darden says Lunsford’s claims are without legal merit and an attempt to stifle public debate.

By November 1, Lunsford releases another ad that accuses Tracci of basing his campaign on a single case—presumably Weiner—and running a “false and defamatory” ad that disregards a court record that affirms her actions in the case. And she points out that Tracci has never been lead counsel in a felony trial.

“It’s not just one case, Ms. Lunsford” declares the November 2 press release from Camp Tracci, which says although it might just be one case for Lunsford, it was much more to Weiner, who lost his freedom, home, savings and time with his family.

Jaquith says he’s not seen the threat of a defamation suit in local elections in the past 20 years. “What’s unusual in the commonwealth’s attorney race is that they’re both attorneys,” he says. “I wonder if the threats of legal action bolster one’s credibility as an attorney.” But to many voters, he says, “I have to imagine at this point it seems like a silly spat.”

If Tracci’s point is to raise concerns about Lunsford, says Jaquith, he’s been successful. “If you want to run for reelection as the steady hand, having all this chaos thrown in the final days of the campaign” is not helpful, he says.

Tracci says he had nothing to do with the FOIA lawsuit, the timing of which looks suspect, says Jaquith, who predicts that the lawsuit will disappear after the election.

Will the last-minute attack ads sway voters? “With a local, low turnout election,” says Jaquith, “the actual number who can be influenced is quite small.”

C-VILLE goes to press November 3 before election results will be in.

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October surprise: Lunsford faces lawsuit over FOIA request

Commonwealth’s Attorney Denise Lunsford contends a pre-election FOIA lawsuit is politically motivated. Staff photo

Albemarle Commonwealth’s Attorney Denise Lunsford, in a hotly contested race for reelection, faced additional heat October 29 when Richmond attorney Matthew Hardin filed a lawsuit against her for creating a “barrier to transparency” in her response to a Freedom of Information Act request issued earlier this week.

The FOIA request asked for information on Lunsford’s credit card usage, reimbursements she received from the county and correspondence about convicted former supervisor Chris Dumler, overturned abduction-conviction defendant Mark Weiner and Albemarle police officer James Larkin during the period of January 2012 and December 2013.

“We were curious whether she paid for [personal business] trips on personal funds or with taxpayer money. Of course correspondence was requested to see what standards her office was using as regards more controversial cases,” Hardin explains.

Lunsford responded by saying she would need $3,200, as well as five additional weeks to produce the requested documents.

“It’s an incredibly high number and it impedes access to the records,” Hardin says. “It’s more than an average Charlottesville citizen pays for health insurance.”

Hardin acknowledges that Lunsford is allowed to charge a reasonable fee in response to the request, but says that by insisting on reviewing the records herself, Lunsford unnecessarily increased the fee.

“She’s the highest paid employee in the office,” he says, “We believe that her assistant commonwealth’s attorneys could review these at a much lower cost and we believe when that’s available, that’s what the law requires.”

Alan Gernhardt, staff attorney at the Virginia Freedom of Information Advisory Council, says the costs do not surprise him and that he has seen similar fees in the past. Gernhardt specifies that depending on what the search involves, Lunsford’s $3,200 could be a reasonable amount to charge.

“There’s tons of practical and technological questions involved,” Gernhardt says, “Just searching through the mass volume of e-mails can be time consuming.”

Gernhardt adds that the time delay also is not surprising and it’s “not out of the realm of possibility” that Lunsford would require that amount of time to retrieve all of the records.

Hardin stresses that he’s not trying to cause trouble for Lunsford. “It might turn out that everything she’s done is completely correct and honest and I hope that that’s the case,” Hardin says, “but the problem is that without the records I can’t tell.”

The lawsuit falls at an inconvenient time for Lunsford, who runs for reelection November 3. Hardin, who filed the lawsuit on behalf of Tyler Pieron, denies any political motivation in the requests.

“We’re not interested in the elections,” Hardin says, “I will happily drop the lawsuit if the records are produced in a reasonable way at a reasonable time.”

Denise Lunsford did not respond to CVILLE’s e-mail requesting comment, but in other media accounts, she has called the lawsuit “politically motivated.”