Judge jails suspected victim of domestic violence for potty use

The 2019 General Assembly appointed James P. Fisher, former chief prosecutor for Fauquier, for an eight-year term on the circuit court.

By Ned Oliver
Virginia Mercury

A Loudoun County judge interrupted the testimony of the alleged victim in a domestic violence felony trial last week to question her drug use, sentencing her to 10 days in jail for contempt of court after saying she smoked of marijuana earlier in the day.

She was then “physically removed from the witness stand by several MPs,” according to a brief filed by the Commonwealth Prosecutor’s Office, which supports the woman’s motion to quash the contempt charge filed by the judge. Circuit Court James P. Fisher, former chief prosecutor of Fauquier. .

The woman, who prosecutors said did not appear to be intoxicated, served two days in jail before being released on $ 1,000 bail, court records show.

“In the midst of a difficult (cross-examination), she was detained, questioned, arrested and removed from the courtroom,” wrote Deputy Commonwealth Prosecutor Elena Ventura, who argued that the woman no. ‘had “not been treated with the respect, sensitivity or dignity required by law.”

Marijuana is now legal in Virginia and prosecutors wrote in their brief that their witness was just anxious and nervous for about an hour and a half of testifying against her partner, who was twice convicted of abusing her. . They said Judge Fisher’s investigation followed “an intense and assertive (defense) questioning focused on drug addiction and infidelity.”

Prosecutors also wrote that Judge Fisher refused to hear from detectives who interacted with her before the trial, who they said testified that “her behaviors were consistent with all previous interactions and that she exhibited no sign of intoxication before his testimony ”.

But the biggest problem, the Commonwealth Lawyers ‘Office said, was that Judge Fisher’s actions “may create a chilling effect on victims’ willingness to testify in domestic violence cases, an area of ​​law already filled with victims. retracting and / or refusing to cooperate, due to the many traumas suffered by victims of domestic violence through the cycle of power and control, especially in cases where victims have mental health issues, such as… in the present case.

Judge Fisher, the former Commonwealth of Fauquier lawyer and former chairman of the Republican County Committee, was appointed by the General Assembly for an eight-year term in 2019. Efforts to take office have failed and the judges de Virginie rarely comment on the proceedings.

This isn’t the first time Judge Fisher has jailed someone in his courtroom for contempt – a move that legal observers say is unusual in Virginia.

Judge Fisher had divorce lawyer Rachel Virk jailed overnight in January 2020 after finding her in contempt of court during a hearing in which she urged him to clarify a decision. The Virginia Court of Appeals dismissed her appeal from the prosecution on a technical point, ruling that because the jail order was signed by the court clerk rather than the judge, there was no jurisdiction. to challenge it. Ms Virk has since filed a lawsuit against the court clerk and the sheriff, which is still pending.

Under Virginia’s summary contempt law, a judge can immediately fine someone up to $ 250 and jail them for up to 10 days for misconduct, violence, threats of violence. or “vile, contemptuous or insulting language” in court.

In last week’s domestic violence trial, the witness’s attorneys said her actions fell short of that standard. The Mercury does not identify her as she is an alleged victim of domestic violence and has not given permission to use her name.

“She did not admit to having any illegal activity and did not admit to being under the influence in the courtroom,” said Tom Plofchan, an attorney for Loudoun who represents her with Ryan Campbell. “There was no smudge in her words, nothing to indicate that she had taken some kind of intoxicant that was affecting her speech or muscle movement.”

Mr Plofchan also questioned the timing, noting that it was an afternoon trial and that there had been no investigation into when in the morning she had consumed the drug. marijuana and how much she had taken.

Both parties also took issue with Judge Fisher’s questioning of the witness, noting that she was never made aware of her constitutional rights and of Miranda and that the “independent investigation” he conducted in the questioning about his drug use was prohibited by the judicial canon.

A hearing on the motion to quash the contempt charge is scheduled for next week.

The case has not gone unnoticed by lawmakers across the region, who have called Judge Fisher’s decision to jail a victim of domestic violence disturbing.

“In general, when it comes to victims of domestic violence, there is a history of not treating the victim with respect and dignity and we are supposed to protect them first,” said Senator Jennifer Boysko, a Democrat. which represents parts of Loudoun.

Senator Scott Surovell (D-Fairfax), a lawyer, asked if the witness would have been treated the same if she said she had instead drunk a beer that morning.

“When we passed the marijuana legalization law, one of the things we tried to do was make sure that marijuana was treated the same as alcohol,” said Senator Surovell. “I think it’s important in the future for everyone to remember that possession and use of marijuana is now legal.”

The case has also caught the attention of marijuana reform advocates, who have called the case an emblem of the stigma that cannabis users continue to face.

“In 2020, Virginia ended the practice of imprisoning individuals for using cannabis, and in 2021 made this use explicitly legal for people 21 years of age and older,” said Jenn Michelle Pedini, executive director of Virginia NORML, the state branch of the National Organization to Reform the Marijuana Laws. “Yet these code changes do not facilitate an immediate end to the stigma faced by those who choose to use cannabis, many of whom will continue to be discriminated against by those who are still attached to long-held stereotypes.”

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