THE VIRGINIAN-PILOT
Copyright (c) 1994, Landmark Communications, Inc.
DATE: Wednesday, October 5, 1994 TAG: 9410050512
SECTION: FRONT PAGE: A1 EDITION: FINAL
SOURCE: BY MARC DAVIS, STAFF WRITER
DATELINE: NORFOLK LENGTH: Long : 106 lines
Judge Charles R. Cloud has suffered a double setback in his effort to force prosecutors to take violent misdemeanor cases in his court.
First, a retired Circuit Court judge in Courtland - after an unusual Saturday morning hearing in his home - ordered Cloud to temporarily stop his efforts. That will maintain the status quo until a full hearing can be held.
Then, the state attorney general issued an advisory opinion, saying a General District Court judge has no authority to order the city attorney or the commonwealth's attorney to prosecute misdemeanors.
Cloud is one of two judges who hear criminal cases in Norfolk's General District Court.
Attorney General James S. Gilmore III faxed his opinion to Cloud on Monday, then released it publicly Tuesday.
Cloud said Tuesday that he was disappointed by the opinion but will seek advice from an outside attorney on whether to press his case in Circuit Court.
``Any opinion from the attorney general is persuasive,'' Cloud said, ``and for me it's highly persuasive. . . . But there is a valid issue here.''He said the issue could ultimately be decided by the state Supreme Court.
Commonwealth's Attorney Chuck Griffith, who had asked for the Circuit Court order, could not be reached for comment Tuesday.
The unusual series of events was triggered by Cloud's campaign to get public prosecutors for victims of violent misdemeanors.
City attorneys and commonwealth's attorneys are not required to prosecute misdemeanors in General District Court. In Norfolk, prosecutors decline to do so, saying they lack staff.
That means a victim who files charges with a magistrate must prosecute his own case in General District Court. The defendant sometimes has his own lawyer, and often that lawyer is appointed by the court.
``The bottom-line issue is fair trials for victims of crimes,'' Cloud said Tuesday. ``I feel the victim needs a lawyer when the defendant has a lawyer.''
Over the past year, Cloud has asked prosecutors to participate in some violent misdemeanor cases, but Griffith and City Attorney Philip R. Trapani have refused.
Last Wednesday, Cloud forced the issue by ordering Griffith and Trapani to participate in such cases in his court.
Griffith received Cloud's order Thursday. On Friday, he asked the Circuit Court for a writ of prohibition, an order that would overrule Cloud. Griffith also asked for a temporary injunction to stop Cloud from enforcing his order before a full hearing could be held.
Norfolk's nine Circuit Court judges disqualified themselves, and the Supreme Court appointed retired Courtland Judge Benjamin A. Williams Jr. to hear the case.
On Saturday, Williams held a hearing in his home. Cloud said he was visiting his daughter at Virginia Tech and was unaware of the hearing. He was not present.
On Sunday, Williams ordered Cloud to stop trying to enforce his order so the issue could be heard properly.
Such a weekend hearing in a judge's home is unusual, Cloud said, ``but the issue is unusual.''
Cloud said he will seek an attorney to represent him in future hearings. Normally, the attorney general represents judges in legal matters, but that cannot happen in this case because Attorney General Gilmore and Cloud differ on the merits of the case, Cloud said.
Gilmore issued his advisory opinion Monday, two months after Cloud had requested it.
The attorney general concluded that state law gives city attorneys and commonwealth's attorneys sole discretion on whether to prosecute misdemeanors. A General District judge cannot usurp that discretion, Gilmore wrote.
Gilmore also refused to judge the performance of Norfolk's city attorney and commonwealth's attorney, noting that the former is appointed by the City Council, the latter elected directly by voters.
Gilmore noted that none of Norfolk's other 18 judges has complained about Griffith or Trapani.
``Even if it were appropriate for the attorney general to comment on the performance of a commonwealth's attorney or city attorney,'' Gilmore wrote, ``I would be reluctant to do so on the basis of personal observations of only one of the 19 judicial officers'' in Norfolk. ILLUSTRATION: Color photo
Judge Cloud
Graphic
WHAT HAPPENED
LAST WEDNESDAY: Judge Charles R. Cloud orders Commonwealth's
Attorney Chuck Griffith and City Attorney Philip R. Trapani to
prosecute serious misdemeanors in his court.
THURSDAY: Griffith and Trapani receive the order. Cloud releases it
publicly.
FRIDAY: Griffith asks the Circuit Court to stop Cloud's order.
Norfolk judges disqualify themselves. The state Supreme Court
appoints retired Judge Benjamin A. Williams Jr. of Courtland to hear
the case.
SATURDAY: Williams holds a hearing in his Courtland home. Cloud is
not present.
SUNDAY: Williams orders Cloud to stop enforcing his order until a
full hearing can be held.
MONDAY: Attorney General James S. Gilmore III issues an advisory
opinion against Cloud.
TUESDAY: Gilmore releases the opinion publicly.
by CNB