Due Process – Part 1
Drew has always come to me to discuss his concerns. His trust in sharing with me continued into adulthood. He had romantic feelings for this woman but she was different from other women he had dated. Drew wanted clarity from her. In essence, do you want to be my girlfriend – Yes or No? Or, would you ever consider being my girlfriend again? He had dated her in high school. He was now 25 and she was 26.
My son often came to me confused with issues regarding this woman. Most of those concerns are addressed in some of my previous posts. If you haven’t read them I invite you to please do so.
The night before she invited Drew to her apartment she texted him that she is a BDSM submissive. During part of this conversation she shared with Drew that her boyfriend was often too tired for sex after working all day. Drew made it clear that he couldn’t imagine her boyfriend not wanting to have sex with her, and he would do anything she wanted. She shared her sexual fantasies, and a story she had been writing about being sold as a sex slave during medieval times for stealing a horse.
The next morning, early March, 2012 my son told me that she texted him and claimed he tried to sexually assault her last night. This too has been addressed in previous posts. After we talked, while Drew went upstairs to take a shower I looked through his phone. While looking at the photos and conversations I was picturing my son, the black and white thinker, trying to make sense of her 50 shades of gray. I thought about confiscating his phone. But within about two weeks, the two of them were back together, meeting at bookstores. He told me everything was okay between them.
In late August, 2012 Drew and this woman argued. He sent her what was considered to be a profane text and he was arrested. Two weeks later, while he was in jail for sending the text, three sexual felony charges were added. My husband and I looked through his cell phone and computer for their communications that could help with Drew’s defense. I knew what was there and how helpful this information would be. But, every picture, every story, every conversation, every communication with her were gone! After their argument Drew deleted everything. In his mind, their relationship was over; no need for reminders of her.
We talked to an attorney who has experience working with an expert in digital forensics. He was ready to have Drew’s laptop and cell phone sent to a forensics lab. It would cost us about $5,000, money well spent to recover exculpatory evidence. Drew deleted all of this information a few days before his arrest but his deletions would likely be recovered since the devices had not been in use while he was in jail.
My husband and I refinanced our home and cashed in his retirement funds. We were prepared to pay $50,000 for this highly recommended attorney. The attorney went immediately to the jail to talk to Drew. Afterwards, he confirmed that the deleted information was a must-have to adequately prepare for Drew’s defense.
Drew’s therapist, upon hearing how much we were prepared to spend to retain the attorney, suggested a meeting with an attorney he knew. This man was also a substitute judge at the courthouse where Drew’s hearings were held. We met. He talked to the Assistant Commonwealth Attorney (ACA) and worked out an agreement. He told us that the ACA wanted Drew to receive treatment, not prosecution. A few days later he introduced her to us in a court ante room. She was very pleasant and stated that, other than the misdemeanor charge (the text) she wasn’t even sure a crime had been committed. She was aware that Drew has Asperger’s and that he was quickly deteriorating in jail. The four of us agreed that allowing Drew to be released from jail and receive treatment out in California in lieu of prosecution was the best use of our $50,000. She used a term called nol pros (not prosecute). In front of my husband and me our attorney confirmed with her that we had an agreement, that when Drew successfully completed the program and returned home the felony charges would be dismissed. The ACA stated that this is what the woman wanted, for Drew to receive treatment and leave her alone. She patted her heart and stated that the woman has a big heart. Our attorney went back to the room where Drew was being held before the bond hearing to get his approval regarding the agreement.
The ACA stood by our attorney while the two of them argued for Drew’s release from jail. The judge was told that I would fly with Drew from Virginia to California for him to attend the program. No one saw a need for an officer to escort Drew. This didn’t seem odd to me because the ACA told me that, other than the misdemeanor (text) she questioned the other accusations.
The program was expensive, all totaled about $50,000, but parents will do what they need to do to get their child help in order to save them. Drew needed to work on expressing his thoughts and feelings in a responsible manner. Participants of the program worked on learning new skills then practicing these skills in group outings. Drew willingly participated. This wasn’t a walk in the park for him. Part of the way Asperger’s shows up for Drew is his high level of anxiety and strong desire to be home. He missed his dog and his family.
My husband and I were advised by the attorney that it was unnecessary to send Drew’s laptop and cell phone for imaging. Because of the agreement with the ACA there was no need to retrieve deleted digital information, no need to prepare for a trial. So, the computer and cellphone went with Drew to California. One goal of the program was for Drew to learn better communication skills and this encompassed responsible use of his cell phone and computer.
We remained in communication with Drew’s attorney while he was in California. The attorney assured us that there was no need to get the agreement in writing. He said these verbal agreements are made all the time at the District Court level. This man was a practicing attorney and a substitute judge in the same courthouse where the ACA worked. Furthermore, he pointed out that the ACA would not have helped get Drew out on a personal recognizance bond and allow him to fly to California (3000 miles away) with only his mom if the Commonwealth believed he was guilty of a sexual assault.
Drew completed the program and we met back at the courthouse, as promised. The treatment program in California had kept the ACA updated as to Drew’s participation, progress, and his release to come home. Drew lived up to his side of the agreement. The ACA also received letters from our attorney, including one indicating that he looked forward to concluding this matter during our court date.
Drew was ready to stand before a judge and put this nightmare behind him. But, something happened. Our attorney informed us that the ACA didn’t remember the agreement. I’m not going to share what I said to him but I was glad my son had left the room. I would have been less angry if a doctor told me he accidentally removed my left kidney instead of the right. Enough said. I looked at the angst on the face of our legal counsel. I recalled his assurance that a written agreement wasn’t the way it’s done at the District Court level of the Chesterfield County Courthouse. I felt sick. So now what? Well, the ball was in the court of the Commonwealth according to the attorney. Really? Just like that? She can change her mind, or someone changed her mind, or whatever happened? But just like that the agreement is gone? And that’s okay?
When it was clear that no plea was being offered we started to prepare for trial. Drew’s attorney told us he needed to remove himself from the case. He recommended a skilled criminal defense attorney.
My mother agreed to pay for Drew’s phone and laptop to be analyzed by a forensic company. She also paid for some of the legal expenses. By the time of the equipment analysis too many months had gone by. Reportedly, the sooner the forensic analysis the better the chance of retrieving deleted information. No luck retrieving pictures, conversations and documents from Drew’s equipment. We had nothing – gone!
After the trial Drew’s attorney filed Motions to Set Aside the Verdicts, for Reasonable Doubt due to inconsistent testimony by the complainant, and for a Due Process violation. For the latter he argued that there was an agreement not to prosecute between the ACA, Drew, us and the former attorney; and that it was this agreement that made the pursuit of Drew’s deleted files unnecessary. I am using Italics for transcript excerpts. Drew’s current attorney is asking the questions and his former attorney/substitute judge is answering:
Q Can you convey to the court as close to word for word as you can what (the ACA’s) statements were to all of you?
A Yes. Your Honor, I went into the anteroom outside the general district court. I believe it was Courtroom Number 2 that day, downstairs, and I mentioned that this was a situation where Mr. Harrison had been approved for entry into the program in California, the treatment program, which was rather expensive. (The ACA) was in support of that. I asked her at that point in time if he successfully completes the program and gets a letter of completion of the program, are you prepared to either dismiss or nol pros the charge? She said she was. It was contingent, of course, Mr. Harrison doing what he needed to do, that is enter and complete the program.
On the day of the Due Process motion the ACA stated to the court that it was abundantly clear to her (in January 2013) that the defense thought she was dismissing the charges. She referred to it as a great miscommunication between the parties with regards to an agreement existing. The ACA owned the belief that the case could be resolved without the necessity of a trial but she denied ever having an agreement. She was called to the witness stand to testify under oath. This is directly from the Motion transcript. Our attorney is asking the questions and the ACA is answering:
Q In the meeting in the anteroom with the Harrisons and with (attorney) did you say to these folks that (the woman) did not want Drew to go to jail, she wanted him to get treatment and she wanted him to stay away from her?
A I don’t remember what I specifically said. I do recall, as Ms. Harrison noted, that I said something to the effect that I think this girl has a big heart. She’s known your son for a long time. I think she is more interested in something that is going to provide him with some wellness as opposed to sending him away for a long period of incarceration.
Q Is that what you remember saying?
A I’m paraphrasing. I don’t remember my exact words from October of 2012.
Q Can you tell this court today that you did not say to Ms. Harrison that (the woman) did not want Drew to go to jail, she wanted him to get treatment and stay away from her? Can you say you did not say that?
A I cannot say I did not say that.
Q Can you tell the court whether or not you did – whether you remember, first of all, and if you do remember, whether you did or did not say to (the attorney), that if Drew gets the treatment and is successful with the program, that you would nol pros or dismiss the case?
A I feel confident that I did not say that. That is because, as I mentioned, my practice that whenever I negotiate a sex case, that I consult with the victim first. I don’t believe that the word nol pros came out of my mouth.
Q I’m asking you specifically. Can you tell this court today it did not come out of your mouth?
A I have no specific recollection of it coming out of my mouth. I cannot say for sure that, it did not, but I have no recollection of saying that.
Q I understand you are basing your belief you wouldn’t have said that, and that that would not be consistent with your normal approach?
A Correct.
Q As I understand your position, you do not recall the agreement being reached. You cannot tell this court that you did not reach it, but you do not recall such an agreement, that conversation being had?
A That is correct.
Let me see if I got this right. The ACA doubts if she would have made the agreement because it’s her practice to consult with the victim first. Well, under oath she admits they consulted. She recalled the woman having a big heart. She recalled that this woman had known my son for a long time. And, she recalled this woman being more interested in wellness as opposed to incarceration. She shared this with us in the anteroom before the discussion of the agreement.
I suspect an ACA must have many cases to keep track of. However, the number of cases that I had to keep track of was one. And, I’m the kind of person who takes notes, records names, even dates and time of day. I know what was said in the anteroom, the absolute agreement. Under oath, both my husband and I testified regarding the agreement.
The ACA explained her actions as putting Drew in a better posture. She never mentioned posturing our son so he would be in a better condition to stand trial or a better position for a plea agreement. Our conversation was very clear. Treatment and Drew staying away from this woman equaled no prosecution. The ACA looked us in the eyes, shook our hands and made that agreement. She stated as clear as a bell that our money was needed for treatment and not a trial.
This is how the ACA put her claim of posturing in gear. Are you ready for this? Shortly before the trial she informs our attorney that if Drew pled guilty to one of the two charges the other could be dropped. How’s that for a deal when both charges carried up to a life sentence and being a registered sex offender for life? I mean, how many lives does one person have? How’s that for posturing, for putting my son in a better position?
The only posture this put Drew in was the false belief that there was not going to be a trial – no need for a forensic analysis of his equipment. In her argument to the judge at the Due Process hearing the ACA pointed out that there was trial testimony regarding the lost evidence. I’ll now provide that except from the transcript:
ACA: Judge, I think that all of these areas that they are alleging the evidence was lost, there was actually evidence presented. It may not have been the best evidence because it wasn’t the actual written communications, but there was certainly testimony that was heard. There were a number of concessions that were made by (her name) with regards to the communications that she had with him. She fully acknowledge that they exchanged erotic stories and that there was text communication after and before and things of that nature.
The ACA is absolutely correct when she states to the judge that it may not have been the best evidence because it wasn’t the actual written communication. The woman was able to cut and paste what she wanted presented. And, that is what she did. My son had no written communications. Let me be clear. What this woman acknowledged was the tip of the iceberg. The rest was irretrievable from our son’s devices because of the agreement with the ACA and the passage of time. This prevented Drew from receiving his best defense.
To determine if an agreement existed let me pose this to you: Do you believe that an attorney/substitute judge lied under oath or had a great miscommunication when he testified that there was an agreement? Do you believe that the ACA’s testimony was consistent? Do you believe that her failure to testify one way or the other was more impactful than the consistent testimony of the attorney, my husband and me. Do you believe that it makes sense for an ACA to work hard to get someone out of jail to fly across the country (escorted only by his mom!) if she thought he was guilty of sexual assault? Do you believe that releasing him from jail for treatment is more in line with posturing when the only plea was pleading guilty to a charge that carried a potential life sentence and being a lifetime registered sex offender? Do you believe I would roll the dice on a posture and spend $50,000 on treatment instead of my son’s best defense, especially considering he has an autism spectrum disorder?
If you concluded that there probably was an agreement, do you believe an ACA should be allowed to renege when the defendant upheld his side of agreement? Most important, do you believe the broken agreement resulted in my son not having the best evidence for a fair defense? You decide. In my next post I’ll present the judge’s decision and his rationale.
