Tag: robert tracci

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Turning up the heat: Albemarle Commonwealth’s Attorney Robert Tracci faces a progressive challenger with deep pockets

Robert Tracci hopes to fend off challenger Jim Hingeley to retain his seat as the Albemarle County commonwealth’s attorney in a race that’s already had an “unprecedented” twist. Photo by Jen Fariello

Political races in Albemarle County are usually pretty staid compared to Charlottesville’s—except for the commonwealth’s attorney race.

Prosecutors Jim Camblos (in 2007) and Denise Lunsford (in 2015) were both ousted after controversial, high-profile cases. And 2019 has promised to be another closely watched contest—even before incumbent Robert Tracci’s opponent received an unheard-of $50,000 donation.

Republican Tracci, 47, is a former federal prosecutor and U.S. House Judiciary Committee counsel. Jim Hingeley, 71, founded the Charlottesville Albemarle Public Defender’s Office in 1998. Both men tout their experience—and their opponent’s lack of it.

Democrat Jim Hingeley, founder of the Charlottesville Albemarle Public Defender’s Office, faces Republican Robert Tracci in the commonwealths’s attorney race.

“He doesn’t have any prosecution experience at all,” says Tracci.

“I’m proficient as a criminal trial lawyer,” says Hingeley, noting his more than 40 years as an attorney. A factor in his decision to run, he says, “was [Tracci’s] inexperience and the mistakes he made…When he was elected, he’d never tried a case on his own in state court.”

Hingeley calls Tracci’s failure to secure a perjury conviction against Unite the Right organizer Jason Kessler “a rookie mistake. He failed to prove the perjury occurred in Albemarle County.”

“The court made a finding with which I disagree,” says Tracci.

The two men differ on their interpretations of prosecutorial discretion and on the role of money in the campaign, notably activist Sonjia Smith’s $50,000 donation to Hingeley.

Hingeley says he also decided to run because he disagrees with Tracci’s approach. “Mr. Tracci has, for the most part, the view that prosecuting people, convicting them, and removing them from the community is the way to address criminal behavior and solve crime in the community,” says Hingeley, who describes himself as a progressive.

For his part, Tracci says Hingeley is part of a “political prosecution movement in which the commonwealth’s attorney is a political activist rather than a legal advocate.” He is “already expressing a reluctance to bringing felony offenses and that has consequences that are not good for public safety,” says Tracci.

“We don’t have authority to summarily disregard the law,” says Tracci, who suggests Hingeley is running for the wrong job and should be seeking a seat in the General Assembly to change the laws with which he disagrees.

“I have a different approach,” says Hingeley. “I know a lot about what is driving criminal behavior.”

Mass incarceration is the “result of the kinds of policies Mr. Tracci has in his office,” says Hingeley. “I think we need to look at ways to keep people in the community.”

Both Hingeley and Tracci cite support for treating substance abuse and mental illness outside of incarceration. “Jails and prisons are not equipped” to treat those issues as well as the services that are already available in the community, says Hingeley.

Tracci says, “I’ve sought alternatives to prosecution, including the therapeutic mental health and drug dockets.” He says his is the first commonwealth’s attorney office in the state to have overall responsibility for sexual assault at UVA, rather than have cases handled as Title IX. “We were ahead of the curve,” he says.

And while he’s committed to enforcing laws as written, Tracci says some reforms are in order. “I’ve written the attorney general that it’s time to look at cannabis laws.” And he wants to see a uniform standard to determine cannabis impairment.

That was an issue Hingeley cites as an example of Tracci’s inexperience. When a train collided with a garbage truck on the tracks in Crozet in early 2018, Tracci tried driver Dana Naylor on involuntary manslaughter and maiming from driving while impaired because he had THC in his bloodstream.

The problem, says Hingeley, is that the science on THC, including results from the National Highway Traffic Safety Administration, is that “THC in the blood does not appear to be an indication of impairment.“ And when Tracci attempted to prove Naylor was impaired, “his own toxicologist said that’s not correct,” recounts Hingeley.

Hingeley has raised more than $150,000, the largest amount for any commonwealth’s attorney race in memory. That includes $50,000 from Smith, who also gave $10,000 to Andrew Sneathern, who, when he decided not to seek the prosecutor’s job, contributed those funds to Hingeley.

“I think it reflects the support I have gotten for change and for criminal justice reform,” says Hingeley.

Tracci thinks it reflects an “unprecedented” amount of campaign money in this district, if not the commonwealth, and that Smith’s $50K was almost equal to what he spent on the last election.

“The community should have the right to know what conversations were made before that contribution,” he says.

Tracci says he met with Smith, who disagreed with his support of the Albemarle Charlottesville Regional Jail’s notification of ICE when undocumented immigrants are released from the jail. “After that, I learned she wrote the $50,000 check,” he says.

Smith says she’d contributed to Hingeley more than two months before she met with Tracci at his request on April 1, and that her record as an active Democratic donor shows “that I do not support Republicans.”

Tracci says he didn’t do any fundraising his first three years in office, and as the county’s current prosecutor he doesn’t accept contributions from any defense attorney with cases that will appear in Albemarle courts. “I’m going to be outspent and I know I’m going to be outspent.”

Hingeley says he wants to find solutions that will break the cycle of racial injustice and the disproportionate number of minorities in prison. “I’m seeing a lot of interest in this community in doing things differently.”

“We don’t have the authority not to prosecute violent crimes,” says Tracci. That disrespects the victims, he says, “and there’s nothing compassionate about that.”

Tracci and Hingeley will face off at The Center on Hillsdale Drive on October 9 at 1:30pm.

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Opinion

Burning questions: Why hasn’t the county prosecuted the torch marchers?

Tiki torch-carrying Unite the Righters marched through UVA Grounds August 11, 2017, and surrounded a small group of counterdemonstraters at the base of the Thomas Jefferson statue. (Photo: Zach D. Roberts/NurPhoto via ZUMA Press)

What kind of message does failing to prosecute white supremacists send?

By Anne Coughlin

To mark the anniversary of the Unite the Right rally, commentators took stock of the successful prosecutions of white supremacists who committed violence and spread hatred in Charlottesville. Such prosecutions are a measure of law enforcement’s commitment to punishing violent offenders, offering closure to the community, deterring copycat crimes, and uprooting racist ideology.

At the sentencing of James Fields for the murder of Heather Heyer and the maiming of numerous peaceful protesters, Thomas Cullen, the U.S. attorney for the Western District of Virginia, said that such prosecutions “send a message that our government condemns this type of activity and will do all within our power to hold folks accountable.”

Likewise, when three members of a militant white-supremacist group known as the Rise Above Movement were sentenced in Charlottesville federal court for violence they committed here and elsewhere, Colonel Gary Settle, the Virginia State Police superintendent, declared that the sentences “stand as evidence that Virginia has zero tolerance for such criminal activity.”

What message then does a prosecutor send by failing to prosecute crimes committed by white supremacists?

While federal and Charlottesville prosecutors have successfully brought multiple cases against the white supremacists who committed crimes in their jurisdictions during that hate-filled weekend two years ago, Albemarle County Commonwealth’s Attorney Robert Tracci has not.

As the world knows, on August 11, 2017, hundreds of white supremacists marched through the University of Virginia. They carried burning torches and shouted intimidating phrases such as “Blood and soil,” “You will not replace us,” and “Jews will not replace us.”

When they arrived in front of the Rotunda, the torch mob approached a small group of students and other community members who were standing near a statue of Thomas Jefferson. This small group linked arms and chanted, “Black lives matter.” The white supremacists surrounded the group and pinned them at the base of the statue, continuing to scream racist and anti-Semitic slurs. Some hurled their torches into the air. Others wielded their torches as weapons and attacked.

Under Virginia law, it is a felony to burn an object in a public place when that person has the intent to intimidate others and does so in a manner that places others in reasonable fear of bodily injury. UVA’s Lawn and Rotunda are public places, and they are located in Albemarle County.

This means that Albemarle Commonwealth’s Attorney Tracci has the authority and the responsibility to decide whether Virginia law was broken that night. His ongoing failure to prosecute these cases severely damages the community’s willingness to trust law enforcement generally, and his office specifically.

As a partial excuse for his inaction, Tracci has pointed out that then-Charlottesville commonwealth’s attorney Dave Chapman did not bring charges in connection with two torch-burning rallies that took place in the city that year. However, Chapman explained in a legal memo his decision not to prosecute the less-threatening incidents in the city, in part by contrasting them with the torch-bearing mob at the Rotunda.

Unlike the city cases, Chapman described the events of August 11 as a case where a prosecution might be “on firm ground” because they involve “specific circumstances that would cause people who are then and there present to have a legitimate and immediate fear of death or bodily harm.”

The events of August 11 were traumatic for many reasons, and the fears of those present were legitimate. As the media has reported, the anti-racist protesters were terrified by the mob, and some were physically injured in the melee.

That trauma was exacerbated by the fact that police did nothing that night to protect people from the torch-bearing mob. As a result, the community’s confidence in law enforcement has been badly shaken. When members of the Rise Above Movement were arrested, FBI Special Agent Adam Lee alluded to this loss of trust when he said that he hoped the arrests would remind “communities like Charlottesville to remember who the good guys are.” Tracci should take immediate steps to show that Albemarle County has zero tolerance for white supremacist violence and intimidation. He should file felony charges under the “burning objects” statute. If he does not, voters should keep Tracci’s record and its message in mind when they head to the polls in November.

Anne M. Coughlin is the Lewis F. Powell, Jr., professor of law at the University of Virginia School of Law.

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Amend Virginia’s burning object statute

By Robert Tracci

Enacted in 2002, Virginia’s burning object statute establishes a felony offense for “[a]ny person who, with the intent of intimidating any person or group of persons, burns an object on a highway or other public place in a manner having a direct tendency to place another person in reasonable fear or apprehension of death or bodily injury.”

On May 13, 2017, white supremacists with tiki torches chanting “you will not replace us” and “blood and soil” conducted a rally at Charlottesville’s Market Street (formerly Lee) Park. On August 11, 2017, tiki torch-carrying white supremacists chanting similar racist slogans marched on UVA Grounds. And on October 7, 2017—two months after August 2017—white supremacists carrying tiki torches and chanting racist slogans yet again returned to Market Street Park.

In a memorandum to then-city manager Maurice Jones, Charlottesville’s prior commonwealth’s attorney declined prosecution under the burning objects statute, stating: “There is a threshold problem with the statute. The statute refers to ‘burn an object.’ The question could arise—and would in criminal law—as to whether carrying a burning torch falls within the definitional scope of burning an object. That alone could prevent a prosecution.”  While this memorandum distinguished the May and October torch-lit rallies from the August 11, 2017, rally on UVA Grounds, the “threshold problem” conforming a tiki torch to the burning objects statute presents in all three rallies. 

Recognizing these legal deficits in Virginia’s burning objects statute, pages 174-175 of the Heaphy Report urged the General Assembly to: “consider broadening the intent standard for the criminal prohibition on the use of open flames to threaten or intimidate. This [burning objects] statute should be altered to track the language of statutes that proscribe the use of swastikas and burning crosses and include the use of fire with the intent to intimidate.”

In October 2018—14 months after August 2017—UVA issued additional no-trespass orders for actions on August 11, 2017. Notably, UVA declined to issue no-trespass orders to all torch marchers. The standard for issuing a no-trespass order is considerably lower than that necessary to sustain a criminal conviction.

Earlier this year, Delegate David Toscano introduced HB2010 to codify the burning objects recommendation contained in the Heaphy Report, but it did not receive a hearing. I supported—and still support—its favorable consideration.

Working with law enforcement partners and available witnesses, this office has sought lawful accountability for violations of Virginia law occurring on UVA Grounds on August 11, 2017, by prosecuting malicious bodily injury, illegal use of tear gas, and assault and battery charges. The office has reviewed recordings, video evidence, livestreams capturing contemporaneous observations of those present, emergency communications traffic, and other available information. 

While the Heaphy Report deemed UVA’s preparation and response to August 11 “woefully inadequate,” the subsequent investigation by the UVA Police Department and others has been thorough and professional. And I continue to encourage all victims of August 2017 to cooperate with the ongoing investigation.

Following the events of August 2017, UVA’s Board of Visitors took prompt and commendable action to better protect the university community, including adopting prohibitions on open flames on UVA Grounds without a permit. It is time for the General Assembly to complement these efforts by amending Virginia’s burning objects statute.

In our system of justice, a prosecutor must faithfully apply the law and uphold ethical standards in all cases. These obligations inhere in a prosecutor’s oath and are spelled out in the Rules of Professional Responsibility. Compromising these principles would affront our values in a manner those who brought hate to our community in 2017 never could.

Robert Tracci is the Albemarle County commonwealth’s attorney.

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News

Not guilty: Trash truck driver acquitted in fatal train crash

Dana Naylor, who drove the Times Disposal garbage truck hit by an Amtrak train a year ago, was acquitted of involuntary manslaughter in the death of Christopher Foley. Photo by Jack Looney

Garbage truck driver Dana Naylor was found not guilty for his involvement in a crash that made headlines last year, when an Amtrak train carrying GOP congressmen smashed into his truck in Crozet.

The crash killed Naylor’s friend and coworker, Christopher Foley, who was one of two passengers. The other, Dennis Eddy, was severely injured.

Naylor, 31, was charged with involuntary manslaughter. The prosecution contended that he was criminally negligent and alleged he drove his truck around the downed gates at the Lanetown Road crossing, and that statements he made to police and medical responders in the immediate aftermath—that he was trying to beat the train, and that he had ruined his life and killed his friend—proved guilt.

But defense attorney William Tanner said prosecutors didn’t have sufficient evidence to prove how Naylor got on the tracks. Tanner told jurors they should believe the driver’s original statements that he saw the crossing’s warning lights flashing, tried to cross, and got caught in between the gates that came down around him.

Albemarle County Circuit Court Judge Cheryl Higgins struck an additional DUI maiming charge after hearing expert testimony from a forensic toxicologist, who said the level of THC, the psychoactive component in marijuana, in one’s blood does not correlate to the level of impairment.

The commonwealth initially intended to argue that Naylor was impaired during the crash because a blood test found marijuana in his bloodstream. A cop, claiming he smelled beer on Naylor, obtained a search warrant, but the test turned up no traces of alcohol.

Outside of the presence of the jury, prosecutor Juan Vega asked Dr. Jayne Thatcher, from the Virginia Department of Forensic Science, to explain a 2006 study by a behavioral oncologist that related THC levels to impairment. But his plan to link the two backfired when Thatcher said she couldn’t rely on the THC level alone. And the prosecution didn’t have any other evidence from witnesses who observed Naylor at the time of the accident.

Commonwealth’s Attorney Robert Tracci had this explanation: “You can imagine fewer buzzkills greater than a trainwreck.” Had Judge Higgins allowed the charge to move forward, he said he would have presented evidence to the jury that investigators found weed in a tube of Carmex lip balm, which was inside Naylor’s lunchbox in the cab of the truck. He also said there was a “marijuana pipe” found right next to the vehicle on-scene.

Outside the courthouse, after the jury deliberated for several hours to reach the not guilty verdict on the remaining involuntary manslaughter charge, reporters questioned Tracci about whether he thought he would have been able to get a conviction if he’d been able to introduce the additional evidence.

“I think the jury wasn’t able to consider the totality of circumstances supporting the commonwealth’s charging decision,” he said. “They made their decision. We respect that outcome.”

In most states, including Virginia, it’s illegal to drive with a blood alcohol content over 0.08 percent, but states vary when it comes to THC levels and impairment. Currently, Virginia does not have an established limit, and Tracci told reporters he hopes the General Assembly will reconsider establishing one.

In Colorado, you could get a DUI if a blood test reveals five nanograms of THC in your system. Naylor’s test revealed nearly seven nanograms. But because THC can linger in one’s system for weeks, Naylor’s THC levels do not prove he was high at the time.

Over the course of the three-day trial, jurors heard from nearly 30 witnesses, all but one called by the prosecution.

Greg Gooden, who oversees railroad signal maintenance at that crossing in Crozet, said before a train passes, lights and bells will blink and ring for approximately four or five seconds, and then it takes about 12 or 14 seconds for the gates to descend. They must be fully horizontal for at least five seconds before the train crosses, and they’re “not very hard” to drive through in the event of an emergency, he said.

Gooden added that there haven’t been any reported malfunctions at the Lanetown crossing, as far as he’s aware.

Sole defense witness Mandy Snow contradicted Gooden’s testimony. The lifelong Crozet resident said she’s lived in the immediate vicinity of the tracks for two years, crosses them four or five times per day, and that it’s not unusual for the gates to malfunction.

“I’ve also noticed that they don’t come down in time,” she said, adding that she’ll often drive over the crossing and then hear a train barrel past her within seconds. “In my opinion, there’s not enough warning.”

In Tracci’s closing argument, he said her testimony wasn’t reliable, and that Naylor acted with total “reckless disregard for human life” when he decided to try to beat the 60mph train that day in January 2018.

Tanner encouraged the jury to use their common sense in his closing, and asked, “Why would he endanger his crew? …Why in the world would he do that to save about a minute?”

Then Tracci closed out the trial with his own question: “If this isn’t a crime and this isn’t criminal negligence, I ask you again, what is?”

It turned out to not be an easy question to answer. After the verdict, an anonymous juror told reporters the panel’s initial vote found Naylor guilty of involuntary manslaughter by 10 to two.

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News

Trash truck driver fights DUI charge

Dana Naylor, who drove the Times Disposal garbage truck hit by an Amtrak train a year ago, was acquitted of involuntary manslaughter in the death of Christopher Foley. Photo by Jack Looney

First he was hit by a train. Now his attorney is attempting to prove that he was also hit with a bogus DUI charge.

Dana Naylor, the driver of the garbage truck that was hit by an Amtrak train in Crozet last year, was in court January 22 to dispute evidence being used against him. The event made national headlines because the train was chartered by Republican congressmen en route to a retreat at The Greenbrier.

Naylor is charged with involuntary manslaughter and DUI maiming in the accident that left Christopher Foley dead, and Dennis Eddy seriously injured.

The prosecution is alleging that Naylor was under the influence of marijuana when he steered around the downed gates and attempted to drive the Times Disposal truck across the tracks before the train barreled into it.

Naylor tested positive for THC after the accident, but attorney William Tanner is arguing what many marijuana studies have already suggested—that THC levels aren’t an indication of impairment, and that the active ingredient in marijuana can stay in one’s system for a couple months after smoking it. He asked that the toxicology report be thrown out.

However, it’s Commonwealth’s Attorney Robert Tracci’s position that the presence of THC in Naylor’s blood at the time of the crash, coupled with statements he made afterward about trying to beat the train, prove that he was impaired.

The defense is also requesting a special hearing, called a Frank’s hearing, where Tanner would challenge the credibility of the police officer who obtained the search warrant needed to collect blood and urine samples. According to Tanner, the officer who was with Naylor in the hospital after the crash was only able to get the warrant by saying he smelled alcohol—and that Naylor’s wife agreed.

But Naylor’s wife contends she never said the smell was alcohol and in fact suggested that it was coming from the hospital, according to the attorney. And the test detected no alcohol in the driver’s blood.

Tracci says the cop never explicitly said Naylor’s wife agreed that the odor was alcohol, and for such a hearing to be granted, the prosecutor says there must be allegations of deliberate falsehood or reckless disregard for the truth.

Judge Cheryl Higgins ruled not to throw out the toxicology report, and said she needed time to consider granting a Frank’s hearing. She’s scheduled to give her decision January 30.

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News

Hingeley runs: Veteran defender wants prosecutor job

Jim Hingeley promises a more “progressive, humane approach” to criminal justice in his campaign for Albemarle commonwealth's attorney. Staff photo

Dozens of people, many from the legal community, braved the chill January 23 to stand in front of Albemarle Circuit Court, where Jim Hingeley, founder of the Charlottesville Albemarle Public Defender Office, announced his campaign for Albemarle commonwealth’s attorney.

“It’s time for criminal justice reform in Albemarle County,” said Hingeley, 71. He said he wants to take a more “progressive, humane approach” to prosecution, because lengthy prison sentences come at a cost to society.

Hingeley will seek the Democratic nomination, and he took aim at the Republican incumbent. Commonwealth’s Attorney Robert Tracci, said Hingeley, was putting nonviolent offenders in jail and had increased by 29 percent the number of cases tried last year in circuit court, where felonies are heard.

“Many times Mr. Tracci has asked for jail time for driving with suspended licenses,” says Hingeley. “I won’t do that.”

The state’s policy of automatically suspending driver’s licenses for unpaid court costs and fines is murky since a judge ruled December 21 the practice is likely unconstitutional.

Tracci, who plans to run for reelection, says he has stopped prosecuting those cases since the injunction. He also says the county has seen an increase in felony offenses in recent years.

Hingeley stressed his 43 years of experience as an attorney handling thousands of cases. “We’ve seen examples of how inexperience can affect justice,” he said. And he drew applause when he said he would not pursue the death penalty.

So far, Hingeley has raised over $10,000, most of that from a committee for Andrew Sneathern, who ran for the 5th District congressional seat last year and who was encouraged by some to run for commonwealth’s attorney. Sneathern introduced Hingeley

He lauded Hingeley’s “recognition of the dignity of every member of the community,” while excoriating the war on drugs and Virginia’s punitive misdemeanor marijuana possession laws, which “take driver’s licenses away for something that has nothing to do with driving.”

Hingeley, currently a city resident, says the law allows him to run in the county, and notes that former commonwealth’s attorneys Denise Lunsford and Jim Camblos lived in the city when they were elected and subsequently moved to the county. He says he’s planning to move to the county before the election “because I’m very committed to this.”

Among those gathered at Hingeley’s announcement were Albemarle Clerk of Court John Zug, Charlottesville Clerk Llezelle Dugger, who used to work for Hingeley in the public defender’s office, Albemarle sheriff candidate Chan Bryant, and City Councilor Wes Bellamy.

“I’m entering this race because we need to turn Albemarle County’s criminal justice system in a different direction,” he said. “I’m entering this race because our community can and should end the politics of mass incarceration.”

 

 

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News

Prosecutors pump the brakes on suspended license cases

A lawsuit to help prevent those unable to pay court fines from spiraling into further debt and prosecution got a significant boost last week.

Charlottesville Commonwealth’s Attorney Joe Platania announced January 4 that he will no longer prosecute people charged with driving on a license that was suspended solely for failure to pay court costs or fines.

Platania’s announcement comes on the heels of a December 21 preliminary injunction by a federal judge in Charlottesville, which ordered Department of Motor Vehicles Commissioner Richard Holcomb to reinstate the driver’s licenses of three plaintiffs who automatically lost their licenses when they were unable to pay court costs and fines. Judge Norman Moon predicted attorneys will win the case, and said such automatic suspensions are unconstitutional.

Platania said the injunction raises “significant concerns” about prosecuting people who have had their licenses suspended in that way. He will continue to prosecute other suspensions for DUIs or restitutions, he says.

“I think Joe did the right thing and I’m really proud he did it,” says Liz Murtagh, head of the public defender’s office. “It’ll make a big difference for people,” she adds, particularly her clients, who often can’t afford to pay their fines as they’re leaving the courtroom, starting a “vicious, vicious” cycle.

Albemarle County Commonwealth’s Attorney Robert Tracci says his office put a halt to prosecuting the cases because of the injunction. The cases have been continued in general district court until the constitutional issues have been resolved or the injunction is lifted.

Before Tracci confirmed that his office was not prosecuting those cases, local immigration attorney Tanishka Cruz predicted it wouldn’t happen in the county “as long as Robert Tracci is the commonwealth’s attorney.”

She says Tracci’s office has historically taken a “one size fits all” approach and has sent many of her clients to jail for such an offense.

Says Tracci, “Commonwealth’s attorneys have no more discretion to ignore a federal injunction than to ignore federal immigration laws.”

Attorneys with the Legal Aid Justice Center are representing the three plaintiffs in the federal lawsuit against the DMV.

“We are very hopeful that between the judicial ruling and the bipartisan momentum for repeal, the time has come to end this destructive practice,” says Legal Aid Executive Director Angela Ciolfi. “Meanwhile, the ruling casts doubt on the constitutionality of all suspensions flowing from the statute, and it makes sense for law enforcement to press pause on enforcement.”

Updated January 9 at 12:12pm to clarify that Robert Tracci stopped prosecuting these cases when the injunction was issued.

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News

Overflow meeting: ICE calls continue

Michael Del Rosso, chairman of the Charlottesville Republican Committee, was the first person to speak to the jail board during the public comment session. He said, "illegal aliens...have no reason to be here, anyway." Photo by Eze Amos

After months of thousands of community members urging the authority board at the Albemarle-Charlottesville Regional Jail to stop voluntarily reporting the release dates of undocumented immigrants to U.S. Immigration and Customs Enforcement, the board held a special meeting September 13 to take a revote on that policy.

At the local jail, and every jail in the state, staff is required by state law to tell ICE when an undocumented immigrant is taken into custody—but they also voluntarily call the federal immigration agents when that inmate is about to be released, and oftentimes, they’ll be there waiting for a newly released immigrant as he walks out the door.

At a July board meeting, jail Superintendent Martin Kumer said ICE picked up 25 undocumented immigrants from the ACRJ between July 2017 and June 2018, who were charged with crimes such as malicious wounding, domestic assault, abduction, drunk driving, driving without a license, public swearing or intoxication, failure to appear in court, and possessing drugs.

A vote didn’t happen at the September 13 meeting, but further discussion on the practice did, and Kumer introduced new information that could eventually lead to ending those ICE notifications.

VINE, a tool on the jail’s website, could be the game changer. Kumer said anyone—including ICE agents—can sign up to receive notifications on any inmate’s custody status or release date. The system updates every 15 minutes.

While the program currently has some kinks—as noted by Albemarle County Commonwealth’s Attorney Robert Tracci, who uses it often—Kumer said he’s already working to update the system, and would support encouraging ICE to track undocumented immigrants’ status through VINE instead of having staff call the federal immigration agents upon an inmate’s release.

But the absence of a vote didn’t sit well with community members who have long been calling for the jail board to end the process, and who prompted the special September meeting.

“They’re kicking the can down the road, obviously,” said Margot Morshuis-Coleman, a representative with the Charlottesville-Area Immigrant Resource & Advocacy Coalition, outside the jail. She noted that the “heart of the conflict is criminalizing immigration,” because ICE is currently notified of all undocumented immigrants’ release dates, not depending on the seriousness of their crimes.

“The jail should not do ICE’s work,” she said.

During a public comment session, only three of approximately 20 speakers held the same opinion. Most of them asked the jail to continue notifying ICE of the inmates’ release dates, which puzzled another CIRAC member, Priscilla Mendenhall.

“We question the fact that the majority of the public comment was by folks who were for maintaining notifications,” said Mendenhall, who was waiting in line outside the jail by 11:30am for the 12:30 meeting. Only about six of the people in line in front of her could have been in favor of continuing notifications, she reports, and when she signed up to speak, only about six or eight names were in front of hers.

Kumer said speaking time was given on a “first come, first serve” basis, and he allowed folks to enter the meeting room early because it was raining outside. He also noted that in all of the other related meetings, those against ICE notifications have dominated the public comment portion. More than 30 people signed up for public comment at the most recent meeting, and for those who didn’t get their turn, written comments were accepted and added to the meeting minutes.

Michael Del Rosso, chairman of the Charlottesville Republican Committee, was the first to speak.

“They are illegal aliens. They have no reason to be here anyway,” he said, and encouraged the jail board to continue its practice to help “get them off the streets.”

Many claimed notifying ICE of their release from jail makes the community safer, but opponents say it does quite the opposite.

In a September 12 letter to Charlottesville Sheriff James Brown—who abstained from voting on the matter in January—more than two dozen community groups and individuals encouraged him to vote to end the policy.

“While Tracci and ICE have repeatedly attempted to paint everyone who is taken into ICE custody from the ACRJ as rapists, murderers, and members of organized crime, the reality is that they are our neighbors, coworkers, classmates, parents—beloved members of the community you represent,” the letter said. “The portrayal of these inmates as violent criminals is untrue and a danger to the community in and of itself, as it stigmatizes, isolates, and persecutes an already marginalized population.”

Albemarle Sheriff Chip Harding, who encouraged the board to learn more about the VINE system before voting, was prepared to vote against ending the notifications.

“It bothers me greatly that the current ICE practice is to place detainers on almost everyone coming into our jail that is here illegally,” Harding wrote in a September 2 letter to the board.

He noted that ICE only takes a percentage of undocumented immigrants into custody after they leave the jail, and after review, some are released back into the community.

“Reportedly/understandably, the time this practice requires has a detrimental impact on the family,” he wrote, but he cites his oath of office, and said he feels compelled to comply with ICE, which has been charged by Congress to enforce 400 federal statutes.

Tracci shares Harding’s opinion of compliance, and in a letter that Tracci addressed to the Albemarle Board of Supervisors September 12, he said the ACRJ becoming the first Virginia jail to discontinue ICE notifications for inmates subject to federal detainers would have “safety and legal consequences,” partially because they’d all be released back into Albemarle where the jail is located, rather than the jurisdictions where they committed their offenses. The ACRJ houses inmates who were charged in Albemarle and Nelson counties, and Charlottesville.

But the man who holds Tracci’s job in the city, Joe Platania, wrote an August 10 letter of stark contrast.

The jail board’s position of voluntarily reporting and the media coverage surrounding it has left many community members “legitimately feeling angry, scared, and isolated,” according to the city’s commonwealth’s attorney.

“In some cases, primary caretakers or breadwinners are removed and are no longer able to care for their children, who are oftentimes citizens,” wrote Platania. “I am also concerned about witnesses and victims looking at voluntary notification as a reason to be uncooperative with local law enforcement and not report crimes or participate with prosecutions because they fear the deportation of charged individuals.”

He noted the “significant concern” of two of the immigrants deported between July 2017 and June 2018—one charged with DUI and the other with assault and battery—whom a judge had released on bond prior to their trials.

“They are currently considered fugitives from justice,” Platania said. “One problem presented by this scenario is that individuals who may not be guilty of the crime they have been charged with have no ability to assert their innocence and stand trial.”

And, he added, if they were tried and convicted before their deportation, they would have been held accountable for their actions, and Platania’s office could use those convictions as evidence in the event of a second offense. Each prosecutor is also able to reach out to ICE and request assistance in cases where they believe removal is the best option, he said.

When undocumented immigrants are charged with a crime and held without bond, Platania said his office determines whether they present a flight risk, are a danger to themselves, or a danger to the community. If prosecutors can’t establish any of those factors, they recommend release back into the community with terms and conditions, and if they do establish one or more of those factors, they ask that the immigrants be held until their trial.

Platania also said he “concurs wholeheartedly” with a July 1 letter from the jail board—signed by Kumer and board chair Diantha McKeel—in which they said undocumented immigrants don’t pose an inherent danger based solely on their citizenship status.

“If the board agrees with the letter it wrote, it may be useful to have ICE articulate with specificity how the voluntary notification policy furthers legitimate local public safety needs,” Platania said. And after examining available data on city cases, “I am unable to see the positive impact the current policy has on family stability or public safety.”

Echoing the local activists’ position, he said, “If community safety is one of our guiding principles, and it must be, it seems unwise to have a policy that perhaps unintentionally (albeit foreseeably) undermines it.”

At the meeting, City Councilor and jail board member Wes Bellamy suggested that if the ICE notifications must continue, the board should be open to compromise. He suggested leniency for undocumented immigrants charged with nonviolent crimes such as public intoxication, loitering, or civil matters related to paying child support.

The board will meet again in November to further discuss their policy and hear an update on any VINE system upgrades that have been initiated.

“The decisions that we make, they have consequences on people’s lives,” Bellamy said. “This is something we have to get right.”

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Activists arrested: Violence erupts outside Albemarle school board meeting

A few silent, civil protesters stayed inside the auditorium. Eventually three were asked to leave for disrupting the meeting, and two were arrested. Staff photo

Public meetings held by elected officials in Charlottesville no longer go uninterrupted. But last night’s Albemarle County School Board meeting in which six people were arrested and one was hospitalized was a meeting of a different breed.

For about a year, the Hate-Free Schools Coalition of Albemarle County has pressured the school board to reexamine its dress code policy, and ban all Confederate imagery in an effort to dismantle systemic racism.

When the school board shut down its August 23 meeting after half an hour because of alleged disruption from the anti-racist activists, it planned a special August 30 meeting to resume its business, but with no public comment session.

It was at that meeting that some members of the Hate-Free Schools Coalition and other community activists held their own open forum outside the doors of Lane Auditorium, where the school board was holding its public session in the Albemarle County Office Building.

Cheers and chants from the group could be heard inside the auditorium, and things got ugly after county officials asked coalition members to quiet down.

“We aren’t going anywhere, and the more they try to silence us, the louder we will be,” said organizer Lara Harrison to about 50 people who were seated in folding chairs.

She called for the resignation of board member Jason Buyaki, who wore a necktie featuring versions of historic Confederate flags to the previous meeting.

“Racists must resign,” the group started chanting loudly as County Executive Jeff Richardson approached and said they’d have to lower their volume or leave. It wasn’t long before police cuffed Hate-Free Schools Coalition organizer Amanda Moxham, who was leading the group chant, and their chorus changed to sounds of screaming, and people falling over chairs made of plastic and metal.

Some community members demanded to see officers’ badge numbers as the police arrested four people outside the auditorium.

Michael Reid was knocked to the ground by officer Greg Jenkins, who claimed Reid assaulted him. The plainclothes cop straddled Reid and scolded him while aggressively gesturing at him with his right pointer finger.

Reid lay motionless on the ground for several seconds. Onlookers noticed his face beginning to turn purple, and continually called for him to receive medical attention.

Onlookers called for medical help as Michael Reid lay motionless on the ground. Police said an ambulance arrived for him after they arrested him and escorted him out of the building. Staff photo

Three uniformed officers, all larger than Reid, surrounded him and cuffed him tightly. Opening his eyes, Reid yelled that they were hurting him, and agreed to stand once they loosened his cuffs. Reid was escorted out on his feet, and police said an ambulance had been called for him. He was discharged from the emergency room with a summons that night.

Approximately two dozen police officers were on the scene.

Inside the meeting, a small group of anti-racist activists were peacefully protesting. Most had tape across their mouths that said “ban it,” and some held a massive sign that read, “racists don’t get re-elected.”

Three of those protesters “became disorderly,” according to a press release from the Albemarle County Police Department, and School Board Chair Kate Acuff asked them to leave. Two of them were also arrested.

Moxham was not charged. Reid was charged with trespassing, along with Andrea Lynn Massey, Sabr Lyon, Lara Lynn Harrison, Samantha Wren Cadwalder Peacoe, and Francis Xavier Richards. The latter two were also charged with obstruction of justice, and all arrestees were processed at the Albemarle-Charlottesville Regional Jail, except for Reid, because he was hospitalized.

“The School Board as a group was committed to getting through the business it was elected to do,” Acuff said in the release. “Fortunately, with the help from the county attorney and county police, we were able to do that. We strive to hold meetings in a civilized manner.”

Superintendent Matt Haas said in the same release, “We are grateful to the Albemarle County Police Department and county staff for protecting our board, staff, parents, students, and community members. Overall, we were able to have a peaceful and productive meeting thanks to their efforts.”

Said Commonwealth’s Attorney Robert Tracci, who was also on the scene, “The right of free expression provides no right to engage in criminal misconduct.”

Protesters who left the building were not allowed to re-enter the public meeting, and press was only allowed to go back inside after showing credentials.

But inside Lane Auditorium, school board members did not appear to be concerned about what had just happened right outside of their doorway. They continued with their scheduled agenda, which included an update on the school division’s new anti-racism policy.

A panel of nine volunteer students has been tasked with writing the policy that will be implemented at all county schools, says school spokesperson Phil Giaramita.

“Truly, [racism] has become part of the daily life we go through every day,” said Western Albemarle High School senior and policy writer Cyrus Rody-Ramazani. “It breeds, or it almost makes people feel comfortable.”

So far, the students have suggested an anonymous reporting system for racism. This fall, they will officially present the policy they’ve drafted, and Giaramita says the division is waiting to hear their recommendations before addressing the dress code.

County schools are also considering the “constitutional issues” of a dress code that bans specific imagery, rather than the code’s current language that prohibits students from wearing anything violent or vulgar.

In fact, they’ve been burned for that before.

In April 2002, Alan Newsom, a Jack Jouett Middle School sixth-grader, wore a purple T-shirt advertising the NRA Shooting Sports Camp he had attended the previous weekend to learn about rifle target shooting and gun safety.

Newsom was asked to remove the shirt with three firearms on it, which led to a $150,000 First Amendment lawsuit against the school board, the superintendent, and Jack Jouett principals.

After two years of litigation, the suit was settled and a judge allowed Newsom to wear his purple NRA camp shirt to school.

The new dress code policy proposed by the Hate-Free Schools Coalition is grounded on the premise that: “All children deserve to feel safe in school.”

Lyon, who was arrested at the August 30 school board meeting, held a sign with those words painted on it at the meeting the previous week.

“The bottom line is we’re trying to protect our kids,” says Moxham, a mother of three.

Immediately following the election in 2016, she says a group of students wore Black Lives Matter shirts to school. “And in response to that, a number of students coordinated to wear Confederate imagery to school in order to intimidate…It got so bad that the police were actually called.”

Moxham says this instance has been corroborated by eye-witnesses including students, but school officials deny it ever happened.

“I do know of one incident that resembles this story because a member of the coalition brought it up some time ago, and I was able to track down the facts by speaking with the assistant principal who was personally involved,” says Giaramita.

The school spokesperson says last year at Monticello High School, a student was distributing Black Lives Matter shirts before class in the cafeteria. A few students said they were offended, and would wear confederacy-related shirts, which they did the next day.

“The assistant principal talked with all students involved and according to him, the student who was distributing the Black Lives Matter shirt willingly agreed to no longer do so and the students wearing the Confederate shirts agreed to no longer do so.”

This approach of education and counseling over discipline is what’s now being considered in the revised dress code, “ironically enough,” says Giaramita.

In his version of the story, police were not present. County police were not immediately able to corroborate either record.

Coalition members plan to continue fighting to end racism in schools.

“Confederate imagery and Confederate history certainly needs to be remembered, but it doesn’t need to be revered,” says Moxham. “By not explicitly banning the Confederate flag and white nationalist imagery, they are allowing for, enabling, and not making a strong statement that this is a school that supports non-discrimination and anti-racism.”

Coalition members declined to comment on the arrests made August 30, but posted a statement to their Facebook page, which said small children who witnessed the “police brutality” were sobbing outside of the county office building and have been “traumatized.”

“Six parents and community members arrested because we want ACPS to protect our kids,” it said. “You’re either racist or anti-racist.”

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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.