News Reporting Is Not What I do. However,…
I just read a front-page article in The Washington Post (Friday, September 11, 2009: Loudoun Judge May Set Legal Precedent) that may interest you — especially if you are a paralegal or an attorney. The sub-head states Dead Man Won’t Be Cleared — Yet. Tom Jackman, a Washington Post staff writer, went on to report that the incest conviction of a former civil rights leader will stand, despite that fact that he has died. Now that, folks, is a county judge setting precedent!
Jackman writes that federal courts demand the dismissal of charges when a defendant dies and his case is on appeal. (For example, Enron executive Kenneth Lay in 2006.)
James L. Bevel, convicted last year of having sex with two of his teenage daughters, was sentenced to 15 years in prison. He died while his case was on appeal. His attorney, Loudoun County Public Defender Bonnie H. Hoffman, asked the appeals court for an abatement — in other words a dismissal. Reportedly, Virginia’s attorney general did not file a response. The Virginia Court of Appeals ordered Loudoun Circuit Court Judge Burke F. McCahill to hold a hearing, and to abate the prosecution ab initio, unless good cause is shown by the Commonwealth not to do so, reports Jackman.
Loudoun prosecutors, to show “good cause”, brought forth two of Bevel’s victims, says Jackman. [Those victims, it should be understood, were his daughters, upon whom he was convicted of perpetrating incest.] One of them had previously testified that her father had had sex with her when she was 14 0r 15, reports Jackman.
Both sides agreed that Virginia case law is silent on the handling of a case in which the defendant dies while the case is on appeal, and further, that federal precedent does not necessarily bear upon state law. At the same time, they agreed that the appeals court had not clarified “good cause”, writes Jackman.
Deputy Loudoun Commonwealth’s Attorney Nicole Wittman observed “What kind of … justice is it when the rights of [the dead] supersede the rights of someone who is alive?” Jackman reported.
Judge McCahill, reported Jackman, noted that a trial conviction is a final judment and that a successful appeal cannot be presumed….The verdict of the fact-finder [jury] must be respected. Jackman reports him as saying.
For the Commonwealth, attorney Wittman commented, “I think there’s a real chance for Virginia to take the lead in this unique area of law by setting out a good-cause exception and the ability to examine these cases one at a time.”