ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Thursday, April 11, 1996 TAG: 9604110036
SECTION: VIRGINIA PAGE: C-3 EDITION: NEW RIVER VALLEY
DATELINE: RICHMOND
SOURCE: DAVID M. POOLE STAFF WRITER
MEMO: NOTE: Shorter version ran in Metro edition.
Claiming legislative privilege, Suffolk Del. Robert Nelms won a temporary reprieve Wednesday from an indecent exposure charge.
Emerging from the courtroom, Nelms said he may lead efforts to repeal the very immunity statute that moments earlier had shielded him from prosecution.
"I would love to be treated like everyone else," Nelms told a pack of reporters.
A judge dismissed the indecent exposure charge against Nelms, ruling that police had no right to detain him briefly in a Richmond park on Feb. 15 because the state constitution gives legislators immunity from arrest while the General Assembly is in session.
Prosecutors did not contest the ruling, saying they would seek to reinstate the charge by presenting evidence before a Richmond grand jury on May 6.
"There is no immunity from prosecution," deputy commonwealth's attorney Claire G. Cardwell told reporters outside the courtroom. "It's [just] immunity from arrest during the General Assembly."
Nelms, 36, has been battling to regain his image as a pro-family Republican since his arrest in Byrd Park, a known spot for illicit sexual activity.
Wednesday's brief hearing shed no new light on the charge against Nelms. The arresting officer was not called to testify.
Nelms has said he did nothing wrong. He has said he went to the park seeking some fresh air during a break in his assembly duties and stepped off a walking path to relieve himself.
This is his second incident at Byrd Park since he entered the General Assembly in 1992. He was robbed at gunpoint there four years ago.
Before the latest incident, Nelms had such a solid hold on his legislative district that Democrats did not bother to challenge him last fall. Now, some GOP leaders worry what his arrest will mean for his re-election chances in 1997.
"I hope the best for him in this situation," said Kenny Carpenter, the newly elected chairman of the Suffolk Republican committee.
"Of course, in our system a man is innocent until proven guilty. But the perception of people is a different thing. I think he will have a tough time either way - whether is found guilty or innocent."
In a brief statement outside the courtroom, Nelms claimed he has been "subjected to a statewide lynching" by the media willing to rely on gossip and innuendo.
"Now we are going to find out if the law is the law or politics is politics," he declared, reading from notes scrawled on the back of a business card.
As Nelms tried to leave the courts building, reporters cornered him near the front door. A television reporter thrust her microphone and demanded to know if Nelms, by claiming legislative immunity, was placing himself above the law.
Nelms replied that he would lead the fight to repeal the law giving lawmakers limited immunity from arrest, if that was the General Assembly's desire.
Until then, Nelms - describing himself as a "poor country boy from Suffolk" - said he is entitled to the same rights as any lawmaker.
"The law is the law," he said.
The immunity statute has its roots in English history when kings sought to disrupt Parliament by having its members taken into custody.
A.E. Dick Howard, a constitutional scholar from the University of Virginia, said the purpose of the modern law is to ensure the General Assembly conducts its business without members being distracted by court cases or legal proceedings.
Cardwell, the Richmond prosecutor, said the Nelms case stretches the law's intent.
She said the undercover officer detained Nelms for a few minutes, but not long enough to interfere with his legislative duties.
But James C. Roberts, a well-known trial attorney hired by Nelms, argued that the constitution and a corresponding law leave no room for legislators to be taken into custody while the General Assembly is in session.
Judge Lemuel DeBerry agreed to dismiss the case, but not without an editorial comment.
"If the founding fathers," he said, "had any idea that Richmond would turn out like this and we would have incidents like this, they would have left the capitol in Williamsburg."
The misdemeanor charge against Nelms is headed for Richmond Circuit Court. Next month, Cardwell will ask a grand jury to issue an indictment untainted by questions of legislative immunity.
But Roberts indicated he would fight against any effort to try the case.
"Whether she has the authority to reinstate in another manner is an issue for another day," he said.
LENGTH: Medium: 92 lines ILLUSTRATION: PHOTO: AP. Del. Robert Nelms, R-Suffolk, (right) speaks withby CNBhis attorney, James C. Roberts, just before addressing a group of
reporters Wednesday about his dismissed indecent exposure charge.