THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Friday, August 5, 1994 TAG: 9408050780
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY JOE JACKSON, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 275 lines
A General District Court judge has accused the city attorney and the commonwealth's attorney of discrimination by refusing to prosecute in his court violent misdemeanor crimes against black and women victims.
In a 200-page report sent Monday to the state attorney general, Judge Charles R. Cloud alleged that Norfolk's prosecutors consistently refuse to try misdemeanor assaults from poor, black neighborhoods, assaults against women, and assaults in the City Jail.
He also alleges that the commonwealth's attorney refuses to assist in criminal mental evaluations, as required by law.
``Without adequate protection from the justice system, many will see that potential victims in black communities continue to be encouraged to take justice into their own hands,'' Cloud wrote.
``Is there any correlation between the neglect and indifference suffered by black victims of crime in the past, and the present reality that inner city areas of Norfolk . . . are the most violent areas? Is this an explanation of why affluent Caucasian communities which receive more attention and protection are the more peaceful?''
Cloud concluded: ``Serious felony crimes such as murder persistently start out as misdemeanor crime. It is often the root cause.''
Commonwealth's Attorney Charles D. Griffith Jr. denied Cloud's allegations Thursday, saying that his decision not to prosecute misdemeanors is based on a lack of resources.
``I do not base any decisions Imake on race, religion, creed, nationality or gender,'' he said in a written statement.
City Attorney Philip Trapani is on vacation and could not comment. Other lawyers in the city attorney's office did not respond to a reporter's calls.
Cloud's report to Attorney General James S. Gilmore III charged that a ``constitutional crisis exists'' in the city's administration of justice. He asked for an opinion on whether prosecutors can refuse a judge's order to try a case.
Cloud also has asked for opinions from several state law schools. Based on these opinions, he said, he may cite Griffith and Trapani with contempt of court if they refuse his requests in the future.
Prosecutors' refusals to try these cases also may constitute civil rights violations, Cloud wrote. His report does not include statistics on the number of cases prosecutors have refused to try, but rather is based on his observations from the bench.
``Over the past few years, this trial court has noted the substantial number of incidents which allege serious misdemeanor crime related to'' handguns, battered women and simple assaults, Cloud wrote. Yet both Trapani and Griffith have refused to prosecute most of these cases, claiming they lack the manpower or jurisdiction, Cloud said.
``Neither public prosecutor acknowledges his duties to all members of the public required by rules, statute, general law and our Constitution,'' Cloud wrote. ``A disproportionately high number of African-Americans make up those who are denied this protection and assistance. There is a perception that because of this our justice system is racially biased.
``Battered women and their problems are usually ignored. There is a perception that gender bias exists. . . . Public prosecutors are not above the law.''
Don Harrison, a spokesman for the attorney general, said Wednesday that Gilmore could not comment until an opinion was released.
According to Cloud, violent misdemeanors in which prosecutors have refused to participate included:
Violent assaults against women. On June 15, Cloud said, he watched as an assistant prosecutor said she would try a misdemeanor sexual battery case in which the victim was white. Yet the same assistant prosecutor sat through another sexual battery case in which both the victim and defendant were black, Cloud wrote.
``The defendant was indigent, and a defense lawyer had been appointed,'' Cloud wrote. ``No public prosecutor or police officer assisted the alleged victim, and she had to prosecute the case alone, even though a public prosecutor was present and able to participate.''
Cloud wrote: ``Battered women are still essentially ignored (by) public prosecutors in this trial court. . . . Victims of misdemeanor domestic violence might say that the best way to secure the services of a public prosecutor is to be murdered!''
Violent assaults in poor, black neighborhoods. Cloud cited several assaults of black victims in 1993 and 1994. One victim was choked, threatened with a knife and pinned to the ground. In another case, a man jumped out of a car and started hitting the victim with a metal baseball bat.
In a third case, the defendant pointed a shotgun at a woman and her infant son and started yelling racial and derogatory statements to her and her boyfriend. Prosecutors did not try any of these, Cloud said.
``Victims of threats to kill backed with the pointing of handguns are not treated seriously by public prosecutors,'' Cloud wrote. ``Victims are more likely to see a public prosecutor appear in an animal, housing or health violation case.''
The commonwealth's attorney's refusal to participate in criminal mental evaluations. State law requires the commonwealth's attorney to provide psychological evaluators in criminal cases with a copy of the warrant; names and addresses of prosecutors, defense attorneys and judges; information about the charges; and a summary of the reasons for the mental evaluation. Cloud cited three evaluations in which Griffith's office allegedly refused to provide this information.
In the 1994 case of Barry Thomas Land, psychologists at Eastern State Hospital in Williamsburg requested the information after Land was found to be violent and delusional and transferred to the hospital from the City Jail. Psychologists made repeated requests to Griffith's office for information, without success.
``Without the required information, we are unable to perform the requested evaluations . . . ,'' a psychologist complained in court records. ``We are discharging him back to jail.''
In his written reply to Cloud, Griffith wrote, ``I know of no instance . .
Beatings and rapes in Norfolk City Jail. Cloud has complained since last year about the failure of prosecutors to try cases in which jail inmates beat or raped other prisoners. He said the practice continues, and he accused the City Attorney's Office of duplicity in trying to dodge such prosecutions.
A June 13 letter from Chief Magistrate Reid Carawan to Cloud states that in 1993, ``Deputy City Attorney Andre Foreman came to see me and requested that in the future we use the state code when issuing assault warrants for prisoners vs. prisoners.'' Cloud said this was done so the city would not have to prosecute, but it would fall to the state instead.
Later, some magistrates mistakenly did as Foreman requested, Carawan said.
As a result, Trapani's office claimed it could not prosecute jail cases because it lacked jurisdiction, Cloud said. Griffith's office refused to try these cases because of a manpower shortage, Cloud added.
The practice was reversed in June and now jail assault warrants are issued in the city code, Carawan's letter showed.
State law says the commonwealth's attorney has a duty to prosecute felonies but may, ``in his discretion,'' prosecute misdemeanors. There is also a city charge for assault and battery, but most simple assault warrants are issued by magistrates under the state code. Thus, the city attorney can legally claim that these charges do not fall under his jurisdiction.
Yet even when an assault warrant is issued under the city code, the city attorney's office can, and does, refuse to prosecute, Cloud said.
One case cited by Cloud is the alleged beating of a man in January by welterweight boxing champion Pernell ``Sweetpea'' Whitaker. In an April 28 letter to Cloud, Trapani wrote that, ``Given past practice and the limited resources available to me . . . I respectfully decline to prosecute.''
This undermines victims' faith in the justice system, Cloud said. Victims often come to court without a lawyer, while defendants can, and often do, request court-appointed counsel. In addition, misdemeanor victims are rarely helped by police officers, Cloud said.
Thus victims, most of whom do not understand the law, often lose their cases. Other times, Cloud wrote, they are so intimidated at the prospect of facing the court alone that they do not show up for hearings and the cases are dismissed.
``Lay victims in this trial court become so frustrated that they often speak out,'' Cloud wrote. ``By their comments and demeanor, African-American misdemeanor crime victims often perceive that this justice system is racially unfair.''
Cloud would not comment on his request to the attorney general, saying he is barred by law from speaking publicly about pending cases. His request focused on 11 pending assault cases, which Cloud has continued indefinitely until a prosecutor can be found to try them.
On Thursday, Griffith said in a written statement, ``Apparently, Judge Cloud wants the participation of my office to be more extensive. Unfortunately, I do not have sufficient resources to devote to the prosecution of misdemeanors in Judge Cloud's courtroom. . . . Without additional personnel, I cannot justify the dedication of my staff from the prosecution of the felony cases to misdemeanors in Judge Cloud's court.''
Griffith said that race and gender have nothing to do with his office's prosecution of misdemeanors. ``All of my decisions are made based upon a full evaluation of the substance of the particular matter under consideration,'' he wrote.
Griffith has asked the state and the city for emergency funding for an extra prosecutor and secretary to handle Cloud's misdemeanor cases, but so far the requests have been denied, Griffith said. Cloud, however, said he only asks for an average of one misdemeanor prosecution a month, and this does not require a full-time staff position.
Griffith said his practice of refusing misdemeanor prosecutions is in line with that of other commonwealth's attorneys. But Cloud said prosecutors try serious misdemeanors to a greater extent in Hampton, Falls Church, and Roanoke and Albemarle counties than they do in Norfolk.
Cloud said he intends to require a prosecutor ``to screen the docket for cases of serious misdemeanor violence'' each day. In these cases, the prosecutor would decide whether the maximum punishment could be jail or a fine. If the latter, the court would not have to appoint a defense lawyer, he said.
``The result would be a substantial reduction of the number of cases in which lawyers must be appointed,'' Cloud wrote. ``Thousands of dollars in public funds will thereby be saved.''
Cloud's concern about discrimination in his court began with the issue of jail beatings, in which most victims were black. In May 1993, Cloud wrote to the attorney general, alleging that Trapani's office may have hidden problems at the jail by mishandling the prosecution of six inmates charged with assaulting fellow inmate Carl Lucky.
The next month, the attorney general said he would not investigate the city attorney's office because he lacked evidence.
In January, however, Cloud was partially vindicated when new Sheriff Robert McCabe revealed numerous health, safety and civil rights violations at the overcrowded jail.
After the attorney general refused Cloud's complaint, the judge was in turn investigated by the state Judicial Inquiry and Review Commission on charges of misconduct while in office, based on a complaint by Deputy City Attorney Foreman.
In November, the state panel held a hearing in which no legal action was taken against Cloud. ILLUSTRATION: Photos
A report by Judge Charles R. Cloud, above, targets Norfolk Common-
wealth's Attorney Charles D. Griffith Jr., top left, and City
Attorney Philip Trapani.
Graphic
GRIFFITH'S RESPONSE
Excerpts from Commonwealth's Attorney Charles D. Griffith Jr.'s
letter responding to accusations of racial and gender bias by his
office:
Pursuant to Va. Code Section 15.1-8.1(B), participation by the
Commonwealth's Attorney in misdemeanor offenses is discretionary. It
has been the practice in the Norfolk Commonwealth's Attorney's
Office during my administration as Commonwealth Attorney, as well as
during the administration of past Commonwealth's Attorneys, to
prosecute misdemeanors which are factually connected to felony
matters and misdemeanor offenses which have been appealed from the
District Court to Circuit Court. This practice is necessary because
we do not have sufficient resources to adequately handle the entire
misdemeanor caseload which exists in District Court. As far as I
know no judge has ever expressed dissatisfaction with this practice
in the past. I also point out that the practice of this office with
regard to the prosecution of misdemeanor offenses is similar to the
practice of other metropolitan area Commonwealth's Attorney
offices.
Apparently, Judge Cloud wants the participation of my office to
be more extensive. Unfortunately, I do not have sufficient resources
to devote to the prosecution of misdemeanors in Judge Cloud's
courtroom. During the last legislative session I was able to obtain
funding for five (5) additional attorney positions which are
dedicated to the prosecution of violent crime. As yet, not all of
those positions are filled. Additionally, the funding for the new
attorney positions specifically does not permit me to re-direct any
of my existing prosecution resources as a result of obtaining the
new positions. Therefore, in order to attempt to accommodate Judge
Cloud's concerns, I have asked the Commonwealth of Virginia and the
City of Norfolk for emergency funding for an attorney and a
secretary to handle Judge Cloud's misdemeanor docket.
Without additional personnel, I cannot justify the dedication of
my staff from the prosecution of the felony cases to misdemeanors in
Judge Cloud's court. I have not heard from the state Compensation
Board or the City of Norfolk regarding my request for emergency
funding.
I was, however, contacted this week by the Honorable George
Heilig, Delegate, who advised me that he has learned that my request
for emergency funding has been denied by the State Compensation
Board. Mr. Heilig related to me that he was told that the funding I
requested was not available because the State Legislature has a
stated policy against funding such positions due to fiscal
constraints. He further advised me that it would be unfair to
provide special treatment to Norfolk when similar treatment cannot
be provided to other jurisdictions within the Commonwealth.
. . . As for Judge Cloud's contention that I can adequately
assist him without additional personnel, I disagree. If I am going
to assign a prosecutor to handle misdemeanors, I am not going to
pick and choose who among the citizens gets the help of a
prosecutor. Further, decisions to prosecute or not, whether a case
calls for a jail sentence or not, and other such decisions cannot
effectively or adequately be made by merely scanning the docket. I
think it is important to point out that it can take as much time to
interview a witness in a misdemeanor case as it can in a felony
case.
To the extent that there is a claim that Judge Cloud suggests
that my decision to continue the practice of past Commonwealth's
Attorneys and not participate in the prosecution of misdemeanors in
Judge Cloud's court is motivated by racial or gender considerations,
that is untrue. I do not base any decisions I make on race,
religion, creed, nationality or gender. All of my decisions are made
based upon a full evaluation of the substance of the particular
matter under consideration.
As for any claim that my office does not participate in mental
evaluations, I know of no instance in which a statute required or
the court has asked for participation by my office in such matters
in which we failed to assist.
KEYWORDS: NORFOLK COMMONWEALTH'S ATTORNEY NORFOLK GENERAL
DISTRICT COURT by CNB