Due Process – Part 2
Due Process – Part 1 offered some of the testimony and facts regarding the agreement Drew, his former attorney, my husband and I had with the Assistant Commonwealth Attorney (ACA). Today’s post shares the judge’s decision and his reasoning.
Before the due process motion was heard my husband and I submitted affidavits to the court detailing our recollection regarding the agreement with the ACA. We were called to the stand and testified under oath. Individually, we gave our detailed recollections of what was said in the anteroom. Both of us made it clear that the agreement was for Drew to receive treatment in lieu of prosecution.
Drew’s defense attorney summed up the testimonies to the judge:
Defense Attorney: Judge, I would note to the court we certainly have four people whose credibility is quite strong. You have (former attorney/substitute judge) who has no dog in this fight. He’s not counsel. He has served this court in several capacities. He’s been doing this a long time and he says no question this was so clear that the agreement had been reached and that he was comfortable in making the recommendation to the family. Spend your money this way. Don’t spend it on trial preparation and send him for the treatment. If he does this, this case is going to be dismissed or not prosed. He has no equivocation about that. He didn’t in his affidavit. He didn’t today. That was not an issue. The bond had already been agreed upon, the fact that it was going to be granted and ultimately it was. It didn’t require them to put up any money.
Judge: (Mr. attorney), let me ask you something about that. This may be a convoluted question. On the October 1, 2012, date the parties are appearing in general district court to address bond. What I’ve understood, as I previously said, that counsel may well have had an agreement among themselves that it would be appropriate to grant a personal recognizance bond so Mr. Harrison could go to California for this program. First you’ve got to get the judge to agree. As you well know, because it’s reported here, I guess you weren’t involved, but Judge O’Berry said, No, way, and maybe more strongly. You went down to Judge Dodson to get the bond. So the question that I’m trying to formulate is there you’re there for bond. Even though counsel may agree, you have no idea if the judge will. Indeed, the first judge didn’t. So when parties have alleged that they have this firm, positive agreement, it’s either counting chickens before they’re hatched or cart before the horse. You’ve got to get the bond. You’ve got to get him to California. You’ve got to get some favorable discharge summary. There are several steps, none of which are anything like certainties until you can even begin to decide how to resolve the case.
The judge said, this may be a convoluted question? I agree, especially since at the time the judge is arguing his logic he has heard testimony that every example he cited had indeed been accomplished! The judge is implying that parties can’t reach an agreement if it’s contingent upon a subsequent event. Using this logic two people can’t agree to play tennis without knowing if the weather will allow it. Or, in the case at hand, the judge’s argument is that a treatment/nol pros agreement could not be reached without knowing if a judge will grant a PR bond. Furthermore, the judge reports that our agreement had several steps that had to be carried out prior to resolution. Well, 1. Drew received bond (check), 2. Drew went to California and entered the program (check), 3. Drew received a favorable discharge summary (check). The final step was for the ACA to honor her agreement. She did not do that and evidence became irretrievable.
Now I’ll share part of the judge’s rational for not believing there was an agreement with the ACA to dismiss the charges.
Judge: I think the participants in the meeting have materially differing recollections of what was said and what commitments, if any, were made. I don’t cast dispersions on any participants in the meeting, but this in my hearing today seems a classic example of parties hearing what they want to hear. That wishful thinking, for lack of a better word, I believe colors recollections. Parenthetically it’s interesting to me that Mr. John Harrison, the father of the defendant, wrote a statement attached as Exhibit 4 to the motion to set aside the verdict and said twice that (ACA) said, and the gentleman put it in quotation marks, other than the misdemeanor, I don’t think a crime has been committed here. That’s on the first page. On the second page, again in quotation marks, (ACA) stated, quote, I don’t think a crime has been committed here. So those are two statements in Mr. Harrison’s, John Harrison’s written statement that are substantially similar, alleging that (ACA) said, I don’t think a crime has been committed here. What’s very interesting to me today, Mr. John Harrison said twice on this record in this court that (ACA) allegedly said, I’m not even sure a crime has been committed here, other than a misdemeanor. Again, I’m not casting dispersions. I’m simply illustrating through this example that there’s a material difference between an allegation that somebody said, I don’t think a crime has been committed here, and I’m not even sure that a crime was committed here. I think there’s a material difference. I think that, again, is an illustration that parties’ recollections can vary. Indeed the way parties express statements made by another can vary and have varied, as this illustrates.
This is the discrepancy the judge focused in on:
My husband recalled what the ACA said to us in the anteroom. He stated 1. in his affidavit, and 2. under oath. Here are the two statements:
- I don’t think a crime has been committed here.
- I’m not even sure that a crime was committed here.
That’s the discrepancy he zoomed in on! He cited this as a material difference and used it to illustrate how recollections can vary. This was his illustration of parties hearing what they want to hear.
These are the discrepancies and facts the judge either didn’t notice, or chose to ignore:
In the Commonwealths Response To Defendants’s Motion to Set the Aside Verdict the ACA states: “No such promise would have ever been made by this Attorney for the Commonwealth without being able to consult with the complainant first. Further the plea bargaining process should bestow each side with some benefit. The negotiations as alleged by the Defendant extends no benefit to the complainant in the case or the Commonwealth.”
Under oath the ACA states that she feels confident that she didn’t have an agreement because her practice is to meet with the victim first whenever she negotiates a sex case. Yet, she makes it clear that she met with the woman prior to our meeting in the anteroom. The ACA’s under oath statements indicate that questions were asked or a discussion was had as to how this woman wanted to proceed – “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.” In her response to the motion the ACA noted that the bargaining process should benefit both sides. The young woman wanted wellness for Drew. The program in California did just that and it required Drew to work hard for two months. The woman did not want a long period of incarceration. The agreement between defense and the ACA accomplished that. So, the negotiation did indeed benefit the complainant. This is what she wanted according to the ACA’s own words. The ACA could not tell the court she didn’t reach an agreement. On the other hand, Drew’s attorney who is also a substitute judge testified under oath that there was an agreement!
Which seems like the most important discrepancy to you? My husband stating the same message with a synonym difference…or the ACA’s discrepancies? Any legal minds out there want to weigh in? I have an email linked to this blog. Feel free to write to me.
Okay, back to part of the judge’s rational:
Judge: It is also an unfortunate fact that there is simply no contemporaneous writing of any nature of what happened on October 1. There’s not a note on the outside of a case file. There’s not a follow-up text, email. There’s not a follow-up letter. Casting no dispersions, there’s not even a follow-up comment between counsel wherein the defense might say something like, Here’s a progress report on Mr. Harrison. I think this puts him on the path to the favorable disposition we discussed. I’m just making that up. But that’s the sort of language that I think is sometimes typical. I did acknowledge in (former attorney’s) letter something about the matter being concluded, but that’s a fairly generic statement in my understanding of the context.
What?!? This is simply not true! Perhaps the ACA didn’t share with the judge all of the letters and updates she was sent from Drew’s former attorney. The attorney sent her letters including Drew’s progress both in California and upon his return to resume therapy in Virginia (his psychologist was present in the courtroom). The dates of these letters are: October 25, 2012, November 28, 2012, December 18, 2012, December 20, 2012, and January 11, 2013. Five letters with updates in the course of a little over 3 months. Drew’s attorney was diligent in sending written updates to the ACA. He even requested that the ACA let him know if anything further was needed to conclude this matter on January 14, 2013. Conclude…bring something to an end.
The practice of not getting agreements in writing is reported to be an acceptable method at the district court level at the Chesterfield County Courthouse. The judge and I might agree that this is far from best practices. However, I have a hard time accepting that my son’s life should hinge upon this district court practice.
Judge: To summarize, we have a verbal discussion that remembered materially differently by the participants. I think there is no meeting of the minds. For that first reason, I’ll respectfully deny the motion.
The judge explained his second reason for denial. This is the relevant excerpt from the motion transcript. The judge was referring to the forensic company:
Judge: The invoice doesn’t tell us what they decided, what they found, what they didn’t find, what they were unable to find, what had been rendered irretrievable in some interval. It just doesn’t say that. The letter from Sensei that I’ve referred to probably more than once, April 2, 2014, letter attached to Defense Exhibit 3 doesn’t tell us anything. It simply says the closer to alleged deletion date that a device is provided for analysis the much greater chance we have for successful recovery of that deleted information.
The judge further stated that there’s no proof that electronic communications became irretrievable. Well, this is what he did have: he had the Verizon records, proof that hundreds of text messaging went on before and after the night in the apartment, so they did indeed exist. He had a sample of text messages that the woman cut and pasted for the court. He had the book (admitted into evidence) she pointed out for Drew to buy, post event – The Claiming of Sleeping Beauty by Anne Rice. In this erotic BDSM novel the prince awakens Beauty not with a kiss, but by having sex with her while she is sleeping! The judge knew the topic. He had nothing from my son because nothing from the dates in question was found on his devices by this company. And, the reason we had nothing was because of the ACA’s agreement with us to spend our money on treatment, not a trial.
Here is the judge’s third reason for denial:
Judge: Finally, as a third and independent ground for denial of the motion, I don’t find that there has been any conduct of the Commonwealth that led to any alleged loss of evidence.
For all of those reasons, I’m going to respectfully deny the motion.
Seriously? He didn’t find any issue with the conduct of the Commonwealth? The Commonwealth made an agreement with all of us not to spend money on preparation for a trail, but instead to spend it on treatment. She made an agreement and shook our hands. Relying upon her words we spent about $50,000 on treatment instead of preparing for a trial. By the time she reneged on the agreement, and made it clear we were going to trial, the retrieval of data was not successful.
With a stroke of his wand (gavel) the judge tried to shift focus to my husband’s mole hill of synonyms, ignoring the mountain of meaningful discrepancies by the ACA. With another stroke he turned the clear forensic statement of ‘the sooner the better’ and the detailed financial receipt from the forensic company that laid before him, into a maze of questions. And, with the final stroke of his wand made the ACA’s unethical actions disappear within his courtroom. But, the courtroom audience wasn’t fooled. They knew exactly what happened. We continue to hear from many of them expressing how painful the injustice still is, and that they keep us all in their prayers; especially Drew.