ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Tuesday, July 9, 1996 TAG: 9607090089
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE: LAURENCE HAMMACK STAFF WRITER
A JUDGE WILL DECIDE today if a former Roanoke magistrate should be convicted of forging a criminal warrant.
The Roanoke magistrate's office, where people are charged with crimes ranging from shoplifting to murder, is an unlikely place for friendships to be forged - especially between the person writing the warrant and the one named in it.
But that's just what happened with Magistrate Noel Painter and Melanie Foutz, a woman who frequently was brought before him on charges of public drunkenness.
After meeting Foutz during one of his midnight shifts, Painter gave the woman a ride home. In the following months, he found her a place to live, let her borrow his car, arranged for her to get professional help for her drinking and even took her out to dinner.
Painter said he was just trying to help. "In retrospect," he testified Monday in Roanoke Circuit Court, "I should have stayed away from her with a 10-foot pole."
As a result of their relationship, Painter lost his job, is on the verge of bankruptcy and - in perhaps the worst predicament for a quasi-judicial figure - faces a felony conviction. A judge will decide today if Painter is guilty of forging a public document.
Painter, 41, was charged after he told a fellow magistrate in February that he used the colleague's name to sign a warrant that he had issued the previous night, when he charged Foutz with being drunk in public.
In testimony Monday, Painter explained that if Foutz saw his signature on the warrant, she would demand that he see her - and cause a disruption in the jail by screaming and cursing if he did not.
On the night in question, he said, Foutz did not know who the magistrate on duty was because she was being held in an adjoining room. On previous occasions, Foutz would "kick and scream and cuss and spit" after learning that he was on duty, Painter said. Those outbursts happened after he tried to end their friendship, he said.
So when he signed the name of another magistrate on Foutz's warrant the night of Feb. 21, Painter said, "I thought I was doing everybody a favor. ... That was the only way to have her calm down and shut up so everybody could have some peace.
"Obviously, I made an error in judgment."
His attorney, Jonathan Rogers, asked Judge Robert P. Doherty to dismiss the charge because there was no evidence that Painter forged the document with intent to defraud, as required for a conviction.
As opposed to trying to hide his conduct, Painter actually told the arresting officer and Magistrate L.H. McClain, whose name he signed, exactly what he did and why he did it, Rogers argued.
"Was it an error of judgment? You bet. ... But was it criminal intent to defraud? No, sir."
Chief Assistant Commonwealth's Attorney Betty Jo Anthony responded that there was at least one person defrauded - Foutz, who spend the night locked up under the impression that another magistrate had put her there.
"But the commonwealth's position was that there was a far greater fraud," Anthony added - one of deliberately falsifying public records that are based on sworn testimony.
After hearing both sides of the case, Doherty said late Monday afternoon that he needed time to review case law before making a decision. He is scheduled to take the matter up again today at 4p.m.
Magistrates, who are appointed by a panel of Circuit Court judges, work in an office in the Roanoke City Jail. They are responsible for issuing criminal warrants after hearing testimony from police officers who make arrests, or residents who go to the office to swear out charges themselves.
Painter began working in the office in 1991. Although he first insisted that he had done nothing wrong, he later resigned after Chief Magistrate Bobby Casey said he would ask the judges to terminate his term as a result of the incident.
Anthony had argued that the reasons Painter gave for his actions didn't add up. She also suggested that there was more to Painter's relationship with Foutz than what he described Monday.
"For whatever reason, he had some sort of relationship with Ms. Foutz," she said, "the nature of which is probably beyond the scope of why we are here today."
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