Tag: Judge Cheryl Higgins

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Lingering questions

Niko the pit bull in a cage
After hours on July 15, Albemarle County’s Animal Protection Unit seized Niko from the SPCA and took him to an undisclosed location to be euthanized. PC: Staff photo

Nearly two weeks after Albemarle County seized a pit bull named Niko from the Charlottesville Albemarle SPCA after hours and euthanized him, against his owners’ and the SPCA’s wishes, questions remain about how and why the decision was made. County officials have thus far refused to disclose the location or provide proof of a humane euthanization process. 

“No records responsive to this request exist,” reads the county’s response to a FOIA request for any contract with or receipts from a veterinarian related to Niko’s euthanasia, and for the name of the veterinarian and veterinary practice that performed the euthanization.

“This lack of transparency is consistent with what we’ve experienced the entire final stages of this case,” says attorney Elliott Harding, who represented Niko’s owners during a lengthy court battle over the dog’s fate. “It’s unsettling because the narrative that is being delivered by the county should be subject to corroboration in formal records requests such as this.”

The county did not respond to C-VILLE’s second request for corroboration of the euthanization by press time on Tuesday. 

C-VILLE Weekly’s FOIA request also asked for written documents exchanged between Albemarle County police and county executives about the dog, as well as emails between the SPCA and county police or leadership. Of the nine total documents provided in response to those two queries, three appeared to contain conversations concerning Niko, including a discussion of a meeting on July 5. That email thread refers to a person who will be present and has the most up-to-date information on the case, but whose name is redacted, with the county citing attorney-client privilege. 

One email thread naming Niko begins with a citizen asking, “Why was he murdered in such a cruel and unprofessional manner? Who is responsible?” and was circulated between county officials. Emails between county officials discuss the county’s statement released on July 15, and include a plan to have the county spokesperson be the single point of contact for questions about Niko. C-VILLE’s request for information about other options considered for Niko was responded to with a single document, entirely redacted under attorney-client privilege.

The county did provide a police report describing a neighbor’s complaint that Niko had bitten their dog in 2013.

The Niko saga began in late 2014 when the dog arrived at the Charlottesville Albemarle SPCA by court order after Albemarle County Circuit Court Judge Cheryl Higgins ruled that he had killed a neighbor’s cat, labeled him a “dangerous dog,” and removed him from his owners’ care. Albemarle County General District Court had already attached that label. According to a county press release issued on July 15, the day after the euthanization, Niko had previously injured two other dogs and subsequently injured a third while at the SPCA in 2016.

For the next seven years following the court’s ruling, his owner Toni Stacy fought to save Niko. Harding helped find numerous possible placements and repeatedly asked the county for guidance on desired conditions that would enable the dog’s release.

“We wanted to know what types of special qualities in a rehoming situation they would want to see for Niko,” Harding says. “And we never heard back, at least I didn’t, even when I asked for follow-up.”

In the spring, the Virginia Court of Appeals issued a final disposition in the case. The ruling meant that Albemarle could choose how to “dispose” of Niko. Harding says euthanization is just one of multiple options available under state code for “dangerous dogs,” a less serious label than “vicious.”

“Most of the options all include rehoming him or sending him to some type of qualified organization,” says Harding, adding that euthanasia should be a last resort.

In a July 15 interview, county spokesperson Emily Kilroy said the decision was made by county leadership in the interest of public safety since Niko had a history of biting other animals.

That explanation didn’t satisfy Harding.

“I don’t know whose public they’re concerned about because he could have been sent all the way up to New York if need be,” he said in a July 15 interview. “In fact, there was one organization in northern New York that actually ultimately called us back and said, ‘You know what? We won’t take him because he’s not dangerous enough. We only work with extremely dangerous dogs.’” 

Harding said any placement would have come with a liability waiver for the county, and notes that the county is full of other dangerous dogs who, despite their aggression towards other animals, can be kept safely with proper supervision.

The decision to euthanize Niko upset not only Niko’s owners but the SPCA, which issued its own press release.

“The SPCA opposed the decision to euthanize Niko, played no role in that decision, and did not participate in the euthanasia itself,” the statement read.

Harding and one of Niko’s owners, 15-year-old Madelyn Wells, spoke about Niko at the July 20 Albemarle County Board of Supervisors meeting. “In life and living, humane alternatives should be the presumptive outcome of this county and the people in this county and the way they view animals and second chances,” Harding said. “I don’t think the decision and the way that it was implemented last week reflects that.”

Wells, who grew up as the court battle over Niko carried on, told supervisors that the thought of his final moments haunt her.

“It makes me sick to my stomach that he went through that alone,” she said. “I just wanted our dog to live.”

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Booze bracelet: Cantwell’s public intoxication charge violates terms of bond

Crying Nazi Chris Cantwell bids an anti-Semitic adieu to Charlottesville. Photo by Eze Amos

“Drunk,” “loaded” and “liquored up” were all words used in Albemarle County Circuit Court to describe the state of “Crying Nazi” Chris Cantwell during his Loudoun County arrest last month that nearly landed the self-proclaimed racist back in the Albemarle-Charlottesville Regional Jail.

At an April 25 hearing, Commonwealth’s Attorney Robert Tracci said good behavior was a condition of the $25,000 bond Cantwell was granted in December. He has been ordered to stay in Leesburg while he awaits his trial for allegedly pepper spraying two people at the August 11 torch-lit white supremacist rally on UVA Grounds.

The New Hampshire man was allegedly carrying a can of tactical pepper spray when he walked in front of traffic and was nearly struck by two vehicles. He was charged with public swearing and intoxication March 31 in Leesburg, according to Tracci.

Cantwell called it a “gross exaggeration,” and said he was walking from Bunker Sports Cafe to his residence, which is less than a mile away. He entered a 7-Eleven, and he claims he said, “Don’t buy cigarettes, stupid,” aloud to himself in front of police, and was arrested outside the store.

“Did he misbehave and get liquored up? Sure,” said his attorney, Elmer Woodard. “But that doesn’t mean he’s a threat to the public.”

Judge Cheryl Higgins found it to be a violation of his bond, and ordered Cantwell to wear an alcohol monitoring bracelet along with the GPS monitor he already wears. He may not consume any more alcohol while out on bond.

During the hearing, a police officer testified he was contacted by an FBI agent who believed Cantwell had exceeded the 22-mile radius he’s allowed to roam, but Jeff Lenert, a partner at Central Virginia Monitoring, testified that none of the data he collected in March showed Cantwell out of his permitted zone.

Tracci also argued that Cantwell was using social media to threaten and intimidate others, including the victims of his pending criminal case.

The prosecutor showed the judge a photo that Cantwell reposted on the web of a little girl who appeared to be protesting gun violence at the March for Our Lives, and who held a sign that said, “Am I next?” Cantwell’s online response? “One can hope.”

Another post referred to gassing “kikes and trannies.”

“I make jokes for a living,” Cantwell told the judge. “It’s what I do. I’m a professional entertainer.”

Woodard called Emily Gorcenski to the stand, who is a victim in the pepper spray accusation. He asked her to state her name and immediately excused her.

Higgins was quick to reprimand Woodard, and the attorney said he was simply proving that Gorcenski wasn’t too intimidated by Cantwell to come to his hearing.

Said Higgins, “Maybe because there are four bailiffs here.”

She ordered that Cantwell may not contact the victims in the case, refer to them on the web or use direct or indirect intimidation or threat tactics.

Woodard said the order infringed on Cantwell’s First Amendment rights and noted that Gorcenski is permitted to continue posting anything she wants about Cantwell. The attorney asked his client if there are also people who criticize him online.

Said Cantwell, “That would be the understatement of the century.”

Higgins also granted Tracci’s motion to quash Woodard’s request for all electronic data and conversations between the two victims in Cantwell’s case. The judge called it a “fishing expedition” and ordered the complainants to only provide the photos and videos they used to identify Cantwell as their attacker.

His trial is set for August 13.

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Tracci’s motion: Asks judge to vacate Kessler dismissal

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

Two weeks ago a judge dismissed a perjury charge against whites-righter Jason Kessler because the prosecution didn’t establish that the alleged crime took place in Albemarle. Legal pundits decried the misstep as a rookie move.

Commonwealth’s Attorney Robert Tracci filed a motion to vacate that decision April 3, claiming that Judge Cheryl Higgins erred twice in her decision to dismiss, and now local legal pundits are again abuzz about whether the unusual move has a chance to bring Kessler back to trial, despite the specter of double jeopardy.

The perjury charge stems from Kessler swearing to a magistrate that Jay Taylor assaulted him on the Downtown Mall in January 2017 as Kessler collected signatures for a petition to remove then vice-mayor Wes Bellamy from office. Taylor was charged, but the Charlottesville prosecutor said she dismissed the complaint because video did not support Kessler’s allegation that he was assaulted.

Kessler was convicted of slugging Taylor, a misdemeanor, on April 6, 2017, and given a 30-day suspended sentence.

Tracci had rested his case against Kessler March 20 when defense attorney Mike Hallahan moved to strike the charge because Tracci did not establish that the alleged crime took place in Albemarle County, where the magistrate’s office is located.

Higgins took the motion under advisement and the defense continued with its case. Before it could go to the jury, Higgins dismissed the charge.

“Venue is not an element of the offense,” says legal expert Dave Heilberg. It’s a procedural determination and the judge could have taken judicial notice that it’s common knowledge the magistrate’s office is in the county at the Albemarle-Charlottesville Regional Jail on Avon Street.

“It was a dismissal on other than the merits,” says Heilberg. “If the decision had been made on the merits, the commonwealth can’t appeal.”

“This case is atypical because it involves an erroneous ruling on venue, a matter unrelated to Kessler’s guilt or innocence, that the commonwealth must address as its prosecution progresses,” says the motion.

Tracci argues in the motion that venue was established by the defense, and the court must consider the entire proceedings, not just the prosecution’s case.

He points to a Supreme Court of Virginia ruling that dismissal on venue does not constitute double jeopardy and the commonwealth can prosecute Kessler on a substitute indictment.

According to Heilberg, it will all come down to the definition of “pre-trial.” According to state statute, in a felony case a pre-trial appeal may be made. “Is it still pre-trial if you didn’t take it to the jury?” he asks.

A judge dismissing a case because of venue is rare, and in his 39 years of practicing law, Heilberg can count easily the number of times he’s seen it: “never.” He says it must happen because otherwise, “there wouldn’t be these appellate cases in Virginia if it hadn’t.”

As for the odds Higgins will vacate her own ruling and concede she made a mistake, says Heilberg, “She’s very careful.”

He says, “Like lawyers, judges are not perfect. Venue is tricky and doesn’t come up that often.”

Neither Kessler nor his attorney, Hallahan, returned phone calls seeking their response to the latest turn of events.

Tracci has asked Higgins to make a decision by April 10.

And in other Kessler litigation news, Taylor filed a civil complaint against Kessler April 3, according to court records.

 

 

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Watching their backs: Cantwell’s request for change of venue and special prosecutor denied

Chris Cantwell, center, and his security detail with Gregory Conte and Eli Mosley is led by attorney Elmer Woodard, right, into Albemarle Circuit Court. Staff photo

 

Another high-profile case went through Albemarle County Circuit Court on January 31, where motions for a self-proclaimed racist who found himself in trouble after the weekend of the Unite the Right rally had two motions denied and one granted.

Christopher Cantwell is accused of using a caustic substance on counterprotesters at the August 11 brawl between torch-wielding white supremacists and anti-racists at the University of Virginia.

Defense attorney Elmer Woodard, who represents several of the alt-right men facing charges from the deadly mid-August weekend, said Cantwell won’t be able to get a fair trial in Albemarle County. He asked to take his client’s trial, which is scheduled exactly six months after August 12, to a different locality.

“Mr. Cantwell’s got some men with him because it’s dangerous for him to move around Charlottesville,” Woodard told Judge Cheryl Higgins. When Cantwell entered circuit court that day, he was accompanied by an entourage that included Woodard, the attorney’s assistant and former Identity Evropa leader Eli Mosley.

Because Cantwell has such a high profile, Woodard said he expects a mob scene at each hearing—like the one at Unite the Right organizer Jason Kessler’s August 13 press conference, where he was tackled to the ground and rescued by police.

The attorney told the judge before he and the suited men entered the building, they hid in the general district court “because we’re vulnerable.” He apparently scanned the vicinity before leading the group from one courthouse into the other. “My assistant, his job is to look behind me,” Woodard added.

Aside from this reporter and one man waiting for his own hearing, no one was outside the courthouses. “Who are those guys?” the man asked after Cantwell and his apparent security detail entered the building and the door closed behind them.

Among the entourage was Gregory Conte, who identifies himself in his Twitter bio as a Tyr 1 Security employee and the director of operations at the National Policy Institute, Richard Spencer’s white nationalist think tank based in Alexandria.

Conte formed the security company with his partner, Brian Brathovd, who is reportedly Spencer’s bodyguard. Conte never entered the courtroom, but stayed in the lobby where he appeared to be guarding a black box full of cell phones, which are prohibited inside.

In court, Woodard noted several instances of what he called “prejudice and excitement” from the local community, including press coverage from NBC29 and WINA and a publication he called “Charlottesville Today.”

He said the cars of alt-right members who came to support Cantwell at his November 9 preliminary hearing were towed. The cars were parked in a private church lot, and sources say the church had the vehicles removed.

“I used a transport service so my car can’t be traced,” Woodard said. He alleged that a woman tried to smuggle a steak knife into one of another client’s hearings in Charlottesville General District Court, and she told deputies the metal detector was beeping because she had a hip replacement.

For the second time that week in Albemarle Circuit Court, an attorney expressed worry about “sleeper activists” who could sit on the jury with the intention of convicting his client.

The day before Cantwell’s hearing, Kessler’s attorney expressed the same concern. The judge denied Kessler’s motion to move his trial out of Albemarle, and she did the same for the so-called “Crying Nazi,” who was given that name after he posted a tearful video to the web before turning himself in to Lynchburg police in August.

“Well, first of all, I’m not a Nazi,” Cantwell said in a jail interview in September. “I came down [to Charlottesville] because I think that I fucking have rights and that I don’t deserve my fucking race to be exterminated from the planet. Not everybody who’s skeptical of Jews is a fucking socialist, okay?”

Judge Higgins also denied his attorney’s request for a special prosecutor for the three-day trial, though Woodard explained that he may want to call Commonwealth’s Attorney Robert Tracci as a witness, resulting in a mistrial and “a very, very, very upset judge.”

Depending on the answers from witnesses Emily Gorcenski and Kristopher Goad—who originally made statements that Cantwell sprayed them with pepper spray on August 11—Woodard said he’d like to question Tracci about some of their previous testimony.

Legal expert David Heilberg says calling the commonwealth’s attorney as a witness “is extremely rare and it might be a ploy to disqualify the prosecutor.”

“I find it is too speculative,” said Higgins as she denied the motion.

However, she did grant a final motion to amend Cantwell’s bond to allow him to go anywhere within the undisclosed Virginia city where he currently resides.

After the hearing, Christian Picciolini waited on the courthouse steps for Cantwell to exit and called out to Cantwell that he just wanted to talk.

“You have my phone number, loser,” Cantwell spat back at him.

Piccolini was recruited to join the Chicago Area Skinheads, America’s first group of neo-Nazis, at the age of 14.

“I used to be just like him,” Picciolini says, but he disassociated himself from the movement in 1996. “I started to receive compassion 30 years ago from the people I least deserved it from.”

Christian Picciolini Staff photo

The Chicago man, who is the co-founder of a nonprofit called Life After Hate, says he wants to sit down with Cantwell and offer him the same support that helped changed his ideologies.

He adds, “Nobody’s born with a swastika flag under his pillow.”

 

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Kessler perjury trial will remain in Albemarle

Jason Kessler stops for a moment to blame local media for prejudicing the jury pool with its coverage of him. Staff photo

Unite the Right organizer Jason Kessler was in Albemarle Circuit Court today with a one-inch-thick motion to move his March 20 perjury trial out of this area, claiming the dozens of news stories included in the motion “demonized” him and made it impossible to get a fair trial here.

His attorney, Mike Hallahan, argued that a January 4 Daily Progress article “basically calls Jason Kessler a liar.” The story about the motion recounted Kessler’s sworn statement to a magistrate that Jay Taylor had punched him on the Downtown Mall as he collected signatures last winter to remove Wes Bellamy from City Council.

The charge against Taylor was dismissed with prejudice after Charlottesville Assistant Commonwealth’s Attorney Nina Antony said video disproved Kessler’s claim. The sworn statement Kessler made is the basis for the perjury charge. He pleaded guilty to slugging Taylor.

“The bias continues and continues,” said Hallahan.

However, Judge Cheryl Higgins said the article appeared accurate, and when it said Kessler had been “demonized,” it was quoting from the motion. “I don’t find this inflammatory,” she said.

The motion also said the Unite the Right rally drew “many undesirables from the far right,” called former police chief Al Thomas “a mere puppet of City Council,” and blamed police for the death of Heather Heyer by a “white supremacist.”

Kessler went on to criticize Heyer in the motion: “Charlottesville City Council named a street after her even though she was engaged in unlawful assembly, blocking a roadway and jaywalking, while the Charlottesville City Council ignored the two Virginia State Troopers that died within the same hour.”

Hallahan continued to insist “the media coverage is over the top.” And he saw a further threat: “sleeper activists” slipping on to the jury “because they hate [Kessler] so much.”

Albemarle Commonwealth’s Attorney Robert Tracci pointed out that the Progress article Hallahan put into evidence is factually accurate. 

“The court would be hard pressed to find any jurisdiction in the commonwealth not aware of the events of August 11 and August 12,” said Tracci,

Hallahan disagreed about the significance of August 12. “This is a local issue,” he said. “I don’t think [other localities] care about it. They don’t think about it everyday or care about it.”

Despite the publicity here, Higgins said to expect jurors to be completely ignorant of a case to remain impartial “would establish an impossible standard.” Should Kessler be unable to find impartial jurors, she took the motion under advisement, which gives her the option to move the trial if necessary.

Outside the courthouse, Kessler said told reporters they had “already prejudiced a jury pool.” He added, “This media here locally is a fucking joke.”

Hallahan seemed less bitter when asked if his client could get a fair trial. “I hope so,” he said.

Correction: Robert Tracci said the January 4 Daily Progress story was accurate, and was not speaking of all media accounts as originally reported.

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Invalid warrant: Judge allows evidence in Korte case anyway

Former UVA film studies professor Walter Korte was well-regarded by many film students and aficionados in town. Albemarle County police

Ruling that the search warrant that led to the arrest of former UVA film studies professor Walter Korte was invalid—and that the two images used as the basis for the warrant in fact weren’t child pornography—Judge Cheryl Higgins nonetheless allowed the admission of the photos, citing a “good faith” exemption for police seeking warrants.

Korte, 73, was arrested August 2 and charged with two counts of child porn possession. He was held without bail until September 6.

The arrest followed a four-day police investigation after pornographic images were discovered in a dumpster on UVA Grounds behind Bryan Hall July 29, according to Korte’s motion to suppress.

The UVA officer, who found hundreds of pornographic images, came back on subsequent days and found three Time magazines with Korte’s address, as well as UVA letterhead with his name among the photos.

University police staked out the dumpster August 1 and captured Korte on video, according to the complaint.

In court February 8, Korte’s attorney Bonnie Lepold argued that the evidence obtained from the search warrant should be suppressed because the warrant for Korte’s Bryan Hall office and Fosters Branch Road home was obtained without probable cause.

Albemarle police Detective Mark Belew requested a search warrant August 2, and his affidavit cited UVA investigator George Vieira, who “determined two of the images were clearly of prepubescent males lewdly naked or involved in sexual acts,” says the motion.

The two images were not attached to the affidavit, and “nowhere on the affidavit did it state the images were of child pornography,” said Lepold. Without the images, the magistrate “might as well rubberstamp” search warrants, she added.

“Our position is the rest of the warrant is insufficient,” she said. “It talks about pornography and separately about juveniles, but says nothing about child pornography.”

Said Lepold, “There is no image that even comes close to involving a sex act. Near nudity is not sufficient under the law.”

And most of the images were adult porn, which, she pointed out, are legal.

To allow the warrant because Belew relied upon another officer’s characterization was “disingenuous and, quite frankly, frightening,” she said.

Higgins recessed for several hours to review the images, and said the search warrant was unsupported by probable cause, but denied the motion to suppress because of the “good faith” exception.

Legal expert David Heilberg says, “If the images are not child pornography, this sounds like an adjudication of innocence on those charges. This is better than getting the evidence suppressed for the defense.”

Commonwealth’s Attorney Robert Tracci said in an e-mail, “The possession of child pornography charges against Mr. Korte have not been nolle prossed.” He declined to say whether the prosecution has other evidence.

Korte led UVA’s film studies program since 1970, was an authority on Luchino Visconti films and the Italian cinema, and was a long-time adviser to the Virginia Film Festival. He resigned from the university November 1.

He is scheduled for trial May 19.

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Motions in Jesse Matthew trial to be filed under seal

Jesse Matthew was given three life sentences on October 2 for attempted capital murder, abduction with intent to defile and sexual penetration with an object of a Fairfax woman in 2006. Staff photo/mugshot Charlottesville Police

At a previous motions hearing, Judge Cheryl Higgins allowed police to unshackle Jesse Matthew’s belly chain, freeing his hands to only handcuff restraints. Nonetheless, in a September 30 hearing, Matthew appeared, once again, with handcuffs attached to his belly chain, making it difficult for him to raise his right hand when he waived his rights to a speedy trial for charges of the murder of Morgan Harrington.

The trial was set for October 2016, just three months after Matthew will face capital charges for the abduction and slaying of UVA student Hannah Graham.

The defense had asked Higgins to recuse herself in the Graham case because she has a daughter who is a UVA student. Judge Higgins disclosed in the Harrington portion of the hearing that her second daughter goes to Virginia Tech, where Harrington was also a student.

Higgins also heard motions by defense attorney Doug Ramseur and denied all but one, allowing the defense to file motions under seal, giving the public no access to the motions until the time of the motions hearing. The commonwealth’s responses will be kept under seal, as well.

“The reporters who are covering this are certainly invested,” Ramseur said, adding that every motion he files gets reported and it could affect Matthew’s right to a fair trial. He also stated that motions potentially involving the names of witnesses raised serious concerns because he does not want the media to contact witnesses before the trial.

Higgins denied the defense’s’ request for Matthew to undergo a prison violence risk assessment by a professional, as well as the request for all grand jury information such as identities and addresses, and selection processes for the grand jury over the past four years.

After the motions hearing and scheduling for the Morgan Harrington trial, Gil Harrington, her mother, said she approached Matthew’s mother, offered her condolences and shook her hand.

“It’s very surreal to be here as many times as we’ve been here,” Harrington said. “You become habituated to the obscenity of it.”

Matthew is scheduled to be sentenced in Fairfax on October 2 for a 2005 sexual assault of which he is also convicted.

“We’ll obviously be interested in what happens,” said Commonwealth’s Attorney Denise Lunsford after the September 30 hearing, “but that’s a separate case in a separate jurisdiction.”