THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Thursday, February 6, 1997 TAG: 9702060343
SECTION: LOCAL PAGE: B1 EDITION: FINAL
SOURCE: BY LYNN WALTZ, STAFF WRITER
DATELINE: NORFOLK LENGTH: 115 lines
A grand jury indicted psychiatrist Tobin Jones Wednesday in the murder of his wife Megan, restoring charges dismissed at a preliminary hearing last week.
Jones, who has remained in jail on another charge, now faces trial in Circuit Court, possibly within five months.
``I'm satisfied,'' said Commonwealth's Attorney Chuck Griffith. ``I felt like when we presented all available evidence we would get the indictment. Now we will schedule his case and pursue it.''
Jones was arrested in May outside the couple's Delaware Avenue house, where police found his wife's body rolled in a rug and left in an upstairs bedroom. She had been dead about a week.
Because Wednesday's grand jury proceeding was secret, defense attorneys still do not know what evidence prosecutors have that Jones committed the murder. At last week's preliminary hearing, Griffith presented so little evidence that a judge dismissed the charges, saying Griffith had not established probable cause that Jones was the murderer.
Griffith said presenting minimal evidence was a strategy to keep the heart of his case away from the defense, allowing him to go to trial with a stronger case.
While Griffith's strategy was not illegal or unethical, legal experts say, it has focused attention on a Virginia law that provides defendants the right to a preliminary hearing but also allows prosecutors to go directly to a grand jury regardless of the hearing's results.
Normally, a preliminary hearing reveals critical evidence in the case and provides defense attorneys with information about why defendants are being held.
Doing away with a preliminary hearing, defense attorneys say, amounts to a ``star chamber'' grand jury hearing that a defendant cannot attend to present evidence or ask questions.
``If a person is arrested and has a preliminary hearing, that is subject to scrutiny by the public,'' James Broccoletti, Jones' attorney, said. ``This is a doctor who was a respectable member of society. He has been vilified. He deserves the right to an open and fair hearing. We shouldn't close the courtrooms.''
Jones' parents, Bill and Frances Jones, are angry about the lack of evidence that has been presented in the case so far. They say they just want to know why their son is being held.
``We came up to see the evidence laid on the table,'' Bill Jones said last week after traveling from New Mexico for the hearing. ``We've always been told that's what a preliminary hearing is for . . . (but) there was no evidence that ever tied Tobin into the house at all.''
Griffith said he thought he had presented enough evidence at the preliminary hearing to justify sending the charges to a grand jury. ``My intent was not to sand bag,'' Griffith said. ``I would never go in there and throw a preliminary hearing.''
Preliminary hearings are not mandated by the U.S. Constitution, but by Virginia procedural rules. If a defendant has not been arrested, it is possible to go directly to a grand jury and bypass the hearing entirely.
Some experts say the General Assembly needs to re-examine a system that has loopholes allowing some prosecutors to circumvent the intent of the law.
``I almost feel it's a back-door way to do it,'' said Ron Bacigal, a law professor at the University of Richmond. ``If you don't think preliminary hearings add anything then, do away with them.''
But James Polley, of the National District Attorneys Association, said Griffith used the best strategy, given the facts of the case.
``You do the minimum to meet the requirements,'' he said. ``That way I don't tip my hand or give away my tactics. This sounds like a low-risk situation. The guy's in jail so he's not going to walk away free. Even if I lose (a preliminary hearing), there's no harm because I can still go before the grand jury.''
But that can turn the legal system into a ``star chamber,'' Broccoletti said.
``Is this a game?'' Broccoletti asked. ``When someone's liberty is at stake
Jones' attorneys said Griffith's strategy has hampered their defense. At a preliminary hearing, defense attorneys often learn the identities of prosecution witnesses and whether they are credible.
They can also use inconsistencies in testimony to their advantage later. And, they often find out the heart of the prosecution's case and can better mount a defense.
A defendant may not use a preliminary hearing for ``discovery,'' or finding out details of evidence, however. The law guarantees defendants the right to scientific reports, any evidence that points to innocence and copies of any statements the defendant made to police.
The spirit of the law is fairness, said criminal defense attorney and former prosecutor Denny Dohnal in Richmond. ``If you're going to arrest someone, you're required to provide a preliminary hearing. Don't un-arrest them. Don't play that tactical move.''
Maybe so, Bacigal said. But even if the loopholes were closed, who would ultimately decide whether a prosecutor had honestly tried to prove probable cause at a preliminary hearing?
``Maybe it hits you wrong on a gut level, but how do you know?,'' he said. ``The prosecutor says, `I thought what I did was enough.' How do you disprove that? He may have complied in good faith, taken a risk, but skirted the edge.'' ILLUSTRATION: [Color Photo]
Tobin Jones
The Strategy
Commonwealth's Attorney Chuck Griffith presented incomplete
evidence when he presented his case in a preliminary hearing. The
charges against Jones were dropped, but Griffith was confident the
charges would be reinstated by the grand jury. Because the grand
jury's proceedings are secret, the defense still does not know what
evidence Griffith has against Jones.
While that strategy is not illegal or unethical, defense
attorneys objected to the secrecy
``If a person is arrested and has a preliminary hearing, that is
subject to scrutiny by the public,'' said James Broccoletti, Jones'
attorney. ``This is a doctor who was a respectable member of
society. He has been vilified. He deserves the right to an open and
fair hearing. We shouldn't close the courtrooms.''
KEYWORDS: GRAND JURY INDICTMENT