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Man can’t be reindicted just because prosecutor didn’t like jury

Alan Cooper//April 7, 2010

Man can’t be reindicted just because prosecutor didn’t like jury

Alan Cooper//April 7, 2010//

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A Richmond Circuit judge has dismissed a second round of indictments against a man accused of robbery and use of a firearm.

The commonwealth had nol prossed the charges earlier, based on a belief that a jury panel was biased against the commonwealth. But that belief wasn’t the “good cause” needed to justify that action.

Judge Clarence N. Jenkins Jr. last month dismissed with prejudice new indictments brought against Keith Linwood Travers Jr. after two charges each of robbery and use of a firearm in a felony were withdrawn.

The prosecutor, Deputy Commonwealth’s Attorney Tracy Thorne-Begland, was concerned on Oct. 1 that 12 of the 29 members of a jury panel had misdemeanor convictions or some other contact with the Richmond Police Department or the criminal justice system.

It only got worse for Thorne-Begland when 20 prospective jurors were placed in the box for voir dire. Two members of the venire expressed concerns because their sons had been prosecuted recently, and another had been a close friend of the defendant’s mother for more than 30 years.

Moreover, when Thorne-Begland asked the panel, “Has anyone here been prosecuted by my office?” no one responded, even though he knew that five of them had.

The prosecutor asked Judge Bradley B. Cavedo to strike a prospective juror who had been convicted recently of obstruction of justice and possession of marijuana, but Cavedo ruled that a misdemeanor record was not a basis for striking a juror for cause.

Thorne-Begland asked for individual voir dire of the venire members who had been prosecuted in Richmond, but Cavedo denied the motion.

The prosecutor then struck the friend of the defendant’s mother, the woman convicted of obstruction of justice and possession of marijuana, a woman who had been prosecuted for grand larceny and the woman who believed that her son had been wrongly convicted.

That left three members of the jury who had been prosecuted recently.

Travers’ attorney, Michael Morchower, struck four white members of the panel, and Thorne-Begland challenged the strikes as being based on race.

Morchower responded that three had connections to the legal profession and the fourth was likely to feel put upon because she had sat recently on a multi-day trial. Cavedo accepted Morchower’s explanations as being racially neutral.

Then, before the jury was sworn, Thorne-Begland moved to nol pros the charges

“[T]he Commonwealth feels that the jury pool is tainted with a number of individuals with criminal histories, all of whom have been prosecuted by the Richmond Commonwealth’s Attorney’s Office …,” he said. “I believe that the bias of those individuals prejudices the Commonwealth’s ability to proceed with this prosecution.”

Morchower objected. “To give the Commonwealth an opportunity to select another jury pool of people who may be more liking to their prosecution of the case is something I’ve never heard of in my life,” he said.

Cavedo said he thought Thorne-Begland had stated good cause and noted that all dismissals were without prejudice unless jeopardy has attached, so that the charges could be refiled.

Travers was indicted on the same counts in February, and the case was assigned to Jenkins.

At a hearing on March 30 on Morchower’s motion to dismiss, Thorne-Begland argued unsuccessfully that Cavedo’s ruling that good cause had been shown was binding on Jenkins. He also contended that the prosecution is always free to refile a charge to which jeopardy has not attached.

Jenkins disagreed, although he acknowledged that Thorne-Begland’s maneuver was in many ways analogous to a decision by a plaintiff’s attorney in a civil case to take a nonsuit when he is not satisfied with a jury panel.

“In a criminal action, the Court does not feel that it is appropriate for a showing of good cause to ask for a nolle pros because you don’t feel that a jury is to your liking,” Jenkins said. “There are a number of ways that those jurors could be questioned in order to find out whether they had any biases.”

Thorne-Begland said this week, “We’re looking at our options on this.” Appeal is not one of them, however, because the prosecution has no right of appeal in such circumstances. The only way to get an appellate ruling would be to seek a third set of charges and get a conviction, so that Morchower could raise the improper nol pros on appeal, he said.

The charges stemmed from the robbery of two cashiers at a Family Dollar store in South Richmond by a masked man armed with a handgun.

The robbery was recorded by a surveillance camera, and the mask slipped off the robber’s head as he left the store.

Police received a tip that Travers was the culprit, and the case turns largely on a grainy photo of the robber from the surveillance camera, and the identification of Travers as the gunman by the victims from a photo spread police showed to the victims.

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