THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Thursday, September 29, 1994 TAG: 9409290491
SECTION: LOCAL PAGE: B3 EDITION: FINAL
SOURCE: BY LYNN WALTZ, STAFF WRITER
DATELINE: VIRGINIA BEACH LENGTH: Medium: 74 lines
When Deputy Commonwealth's Attorney Albert Alberi secretly subpoenaed members of a citizens panel on obscenity to testify in court Tuesday, he circumvented established procedure and rules, said court officials and defense attorneys.
Alberi said in an interview Tuesday that he purposely issued the subpoenas in such a way that the names of the panel would not be revealed.
In doing so, he has opened himself to criticism by defense attorneys who say that his actions violate a defendant's constitutional rights to confront his accusers and know who the witnesses are against him. Defense attorneys also said Wednesday that Alberi may have violated state code and the rules of the Virginia Supreme Court.
``The whole idea of a secret panel hand-selected by a prosecutor, I end up sputtering just to talk about it,'' said W. Thurston Harville of Norfolk, a member of the Due Process and Fair Practice Committee of the Virginia College of Criminal Defense Attorneys. `It's just reprehensible. It's just trampling on the spirit of the Constitution.''
Court officials in Virginia Beach said this was the first time they had heard of subpoenas being issued secretly.
``The commonwealth's attorney's office has issued subpoenas on their own before, but then we get a record of it,'' said Clerk of Court Curtis Fruit on Tuesday. ``I would try to find out where their legal authority comes from. It's got to be statutory. I don't recall any situations where the commonwealth's attorney issued a so-called secret subpoena that nobody had any record of.''
When Alberi was asked in a telephone interview Wednesday to provide a legal authority for his actions, he hung up. Alberi did not respond to faxed questions asking for legal authority, case law or precedent that would apply.
A state statute reads: ``In a criminal case, a summons for a witness may be issued by the attorney for the commonwealth, provided however that any attorney for the commonwealth who issues such a summons shall, at the time of the issuance, file with the clerk of the court the names and addresses of such witnesses.''
Clerks in the Circuit Court said Tuesday they had no records of any witnesses being subpoenaed from the panel.
Alberi used police officers to serve the subpoenas, two members of the citizen panel said. Subpoenas are normally served by the sheriff's department.
The sheriff's office said Wednesday that it would be in violation of state statute for deputies to return copies of executed subpoenas to the commonwealth's attorneys office rather than the clerk of the court's office.
``They've never asked us to do that,'' said Sgt. Dorothy Simmons. ``We can't do that.''
The citizens panel of about nine people was convened last month to determine if sexual aids seized from bookstores were obscene. All but two determined they were.
Alberi said panel members were subpoenaed for Tuesday's trial of a bookstore owner. However, the defendant pleaded guilty and no witnesses were called.
The defendant, Louis Krbec III, agreed to sell his three stores before Nov. 30 in return for no jail time and reduction of felony charges to misdemeanors.
Three other owners still face charges from last spring's investigation in which police seized sexual aids.
Alberi has said he will make the panel members' names available at the close of all the trials.
Defense attorneys said Wednesday that the idea of ``secret subpoenas'' violates a defendant's rights to know who his accusers are.
William S. Geimer, a law professor at Washington and Lee University, said Alberi's move ``clearly circumvents the process.''
``There's a return on subpoenas because that is the way finally the defendant finds out who's going to testify against him,'' Geimer said. by CNB