Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: FRIDAY, July 29, 1994 TAG: 9407290087
SECTION: VIRGINIA PAGE: VIRGINIA EDITION: METRO
SOURCE: By RICHARD FOSTER STAFF WRITER NOTE: below
DATELINE: LENGTH: Long
The widow of a Bedford County man who was killed in a neighborhood feud two months ago says she finally knows whether Bedford County Commonwealth's Attorney Jim Updike will prosecute her husband's killer.
But she promised Updike not to disclose the decision until he makes a public announcement, probably within three days.
Darlene Allen met with Updike on Thursday for almost three hours. She said he "was very informative. He helped me tremendously and he answered all my questions."
Updike declined to comment.
Aubrey Allen, Darlene Allen's husband, was shot and killed June 5 by Paul Abbott in the Chamblissburg subdivision of Scenic Acres. The men had been feuding in and out of court for almost four years.
Abbott contends he acted in self-defense; Darlene Allen says it was murder.
Tom Blaylock, Abbott's attorney, said Updike has not told him or his client of the decision. ``I assume if [the decision] was against my client, he'd tell us.''
In her quest for prosecution of Abbott, Darlene Allen has written or phoned the Federal Bureau of Investigation, Sen. John Warner's office and the U.S. marshal's office. All have told her they could not help.
Roger D. Groot, a law professor at Washington and Lee University who specializes in criminal procedure, said, "Can you force a prosecutor to prosecute? No."
That decision is only the prosecutor's. No state or federal law holds a prosecutor to a deadline for making it or requires him to publicly announce it.
Generally, Groot said, "If you have a questionable case of self-defense, the tendency is to let a grand jury look at it."
He theorized that Updike could have been waiting for the next Bedford County grand jury to meet next Friday before bringing charges against Abbott.
Groot said a grand jury, whose delibarations are closed to the public and media, also would let Updike disclose information about the case that he might be reluctant to reveal at a public hearing.
Another reason Updike's decision could have been stalled is the time it takes to run forensic tests on firearms. Friends of Abbott said they saw Bedford County sheriff's deputies recover a gun from Allen's hand.
Bill Conrad, a firearms specialist with the state Bureau of Forensic Science, said examinations of guns don't take more than a day. Because of a backlog, though, it usually takes six to eight weeks to do the work on a gun that is sent to the lab. If more work is needed, an investigation could take several months.
Last week, Darlene Allen said she thought Updike was stalling because he's not willing to prosecute the killer of an HIV-positive ex-convict. Allen was convicted of attempted murder for firing a gun into an occupied vehicle in Salem in 1976. He was diagnosed as HIV-positive in 1991.
Allen contends Abbott killed her husband in part because of his HIV-positive status.
She said neighbors in the subdivision would call her husband "queer, gay; They would say 'you faggot.' Paul [Abbott] would drive by and say, 'you queer [expletive].'"
She said her husband was not gay and was unsure how he had contracted the virus.
Updike has said Allen's HIV status would have nothing to do with his decision.
Blaylock contends the killing was an act of self-defense that had nothing to do with prejudice against AIDS.
He added, "It's a terrible situation. My client doesn't feel good about it."
Nevertheless, if Updike chose not to prosecute Abbott, AIDS bias may be an option Allen's family will have in trying to get the case into court.
The only way to bring criminal charges against Abbott if Updike doesn't, Groot said, would be for Allen's family to make a complaint to the civil rights division of the U.S. Justice Department.
If they found probable cause that the killing was a hate crime and deprived Allen of his civil rights, the federal government could prosecute. But, Groot said, "It's going to be a hard case to find federal grounds" for prosecution.
Beatrice Dohrn is legal director with New York City-based LAMBDA, a legal defense and education fund for gays, lesbians and HIV-positive people. She said she didn't know of any HIV-related hate crimes that have been tried as civil rights cases.
She said most hate crime laws and civil rights laws are written in such a way that the prosecution must prove the victim was chosen for attack because of who he is. She said Allen's family "might be able to induce the feds to prosecute" on those grounds.
Kent Willis, director of the Richmond-based American Civil Liberties Union of Virginia, said, "We certainly will investigate this case but we need a lot more facts before we can commit the ACLU's involvement.
"Law-enforcement officers have an obligation to prosecute cases on an equal basis," he said. "If, in essence, they feel [Allen's] killing is unworthy of prosecution [because he was an HIV-positive ex-convict], then that's a basic constitutional violation."
Groot said Allen's family could file a civil suit against Abbott for damages. A civil suit could be easier to try and would be helped by a guilty verdict if criminal charges are going to be placed against Abbott.
But if criminal charges are not going to be placed, a civil ruling for Allen's estate would not be grounds to file criminal charges.
Levi Browning, a neighbor, said, "I think the sheriff and Updike feel their problems are over" now that Allen is dead. "It's a lot quieter here, [in the Scenic Acres subdivision] but justice hasn't been served."
Browning was identified in an article Thursday as a friend of Allen's. He said that was incorrect. He says he was not friends with Allen; he's just interested in seeing justice carried out in the neighborhood where he lives.
by CNB