A tale of two Counties (Henrico and Surry)

A disorderly conduct charge against a young Charlottesville man who stripped to show wording from the 4th Amendment on his chest in protest of airport security procedures was dropped today in Henrico General District Court.

The charge was not prosecuted at the request of Commonwealth's Attorney Wade Kizer and Aaron B. Tobey's lawyer, Steven D. Benjamin, who appeared before Judge Archer L. Yeatts III.

Kizer said outside the courtroom that he did not believe Tobey's behavior rose to that required to be in violation of the disorderly conduct law. "He was looking for attention and he got it," said Kizer.

Benjamin said, "He simply wanted to make a statement, which is his right," While "American citizens have to submit to airport security measures," said Benjamin, "we're still American citizens and we still have the right to protest."

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• Henrico County's Commonwealth's Attorney himself was involved, appearing in court on a misdemeanor charge, instead of allowing a subordinate to handle this.
• Kizer himself asked the court to dismiss (nol pros) the case because the conduct for which Tobey was arrested did not rise to the level "required to be in violation of the disorderly conduct law."
• The Surry County prosecutor (Poindexter) could have come to court and done the same thing himself - but did not.
• Justice was served today in Henrico; justice still waits in Surry.

Repeater said:

Compare what happened today to Aaron B. Tobey to what happened to skidmark earlier this month:

Charge against airport protester dropped



Observations:

• Henrico County's Commonwealth's Attorney himself was involved, appearing in court on a misdemeanor charge, instead of allowing a subordinate to handle this.
• Kizer himself asked the court to dismiss (nol pros) the case because the conduct for which Tobey was arrested did not rise to the level "required to be in violation of the disorderly conduct law."
• The Surry County prosecutor (Poindexter) could have come to court and done the same thing himself - but did not.
• Justice was served today in Henrico; justice still waits in Surry.

As an aside, I wonder if Tobey has grounds for a lawsuit?

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wylde007 said:

The mother should have been put down, not the bears.

Disgraceful.

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Grapeshot said:

Henrico - we want to do the right thing and be up front about it.

Surry - we will do it our way, like we always have, our deals are made behind closed doors.

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peter nap said:

I wouldn't hold Henrico up as a poster child just yet. While they are light years ahead of Surry, they could fertilize a small country with the skeletons in their closet.

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Grapeshot said:

True enough, Peter, but like the light on your boat, Henrico can see where they have been. Surry, on the other hand, does not have a clue where they are going.

Can you see the difference? :lol:

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Grapeshot said:

True enough, Peter, but like the light on your boat, Henrico can see where they have been. Surry, on the other hand, does not have a clue where they are going.

Can you see the difference? :lol:

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peter nap said:

That's a cannon, not a light:lol:
But yep, I see the difference.

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Grapeshot said:

Wrong end, Peter. Look at tother one. VDOT and Surry can tell where they have been, but can't see where the are going. A lighted stern section doesn't help much even in the Johnny House. :uhoh:

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peter nap said:

I wouldn't hold Henrico up as a poster child just yet. While they are light years ahead of Surry, they could fertilize a small country with the skeletons in their closet.

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Grapeshot said:

Sometime days the only time I open my mouth is to change feet.

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Repeater said:

As an aside, I wonder if Tobey has grounds for a lawsuit?

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VAlitigator said:

Malicious prosecution is a valid ground for a lawsuit, but they are not favored by the Virginia courts. The elements are:
1. former prosecution was initiated or started by the defendant.
2. former prosecution was without probable cause.
3. former prosecution was terminated in plaintiff's favor.
4. former prosecution was malicious (may be established by showing the original prosecution was motivated by ill will, malevolence, grudge, spite, wicked intention, or conscious disregard for rights). So, it's not enough to show the cops were bone-headed; you gotta show they were out to get you.

His lawsuit would be against the police officers. Prosecutors have absolute liability, so they would not be the defendant (besides, in general district court cases, they bring before the court the charges the cops brought, and the CA did the right thing by dropping the charge).

In this case, he would be better off first getting the charge expunged from his record before considering a civil lawsuit (he has 2 years to bring a civil lawsuit).
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Expungement of police and court records.

Provides that dismissed charges may not be expunged if the court found the evidence sufficient to find the person guilty, and that charges that result in a conviction for a lesser included offense or that are subject to amendment or substitution by charge or indictment resulting in a conviction may not be altered or expunged.

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Repeater said:

As always here, you provide sage advice. Your suggestion for expungement is a good one. Current law is also pretty good.

That could change.

Delegate Todd Gilbert has introduced the ironically designated HB 1776, that's right: 1776):



Thus, if a person is arrested and the case is dismissed (a nolle prosequi), the prosecutor could still cause problems for the petitioner by insisting to the court the person could still have been found guilty.

How many Virginia gun owners are subjected to what is known as Contempt of Cop arrests? It would appear that fighting such false charges, and then attempting to restore one's reputation, would be more difficult if this bill were to become law.

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VAlitigator said:

I would bet the bill is designed to stop expungements in situations as follows (and insert any "pound of flesh" in place of community service):

1. Accused and prosecutor agree that the accused will do community service or something else to get charge dismissed.
2. Prosecutor allows accused to defer plea and entry of findings but requires accused to stipulate that there are facts sufficient to convict him (so if he doesn't do the service, prosecutor doesn't have to prove up the case).
3. Court agrees.
4. Accused does the community service.
5. At next hearing, prosecutor and accused agree that accused has done the community service; judge dismisses charges.

So, the charge is dropped, no plea was entered, the court entered no findings re guilt/innocense, BUT accused agreed on the record there were facts sufficient to convict him.

Not saying I agree with the bill at all. But I could see how prosecutors could want it.

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