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A new player in judicial elections

Child advocacy group cites sentencing data

Peter Vieth//December 24, 2012

A new player in judicial elections

Child advocacy group cites sentencing data

Peter Vieth//December 24, 2012//

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There is a new player at the table when it comes to the reelection prospects of judges in Virginia.

A child advocacy group based in Tennessee commanded the attention of legislators at judicial interviews earlier this month by citing data in a special report it prepared for the General Assembly and distributed prior to the Dec. 14 interviews.

The group, “PROTECT,” based in Knoxville, clearly learned from its efforts to lobby last year, when it was essentially dismissed and shut out from the process.

This year, armed with numbers, the group challenged two judges up for additional terms, saying publicly available data shows the judges have at times imposed little or no jail time for offenders convicted of abusing children.

A PROTECT spokeswoman group also claimed Virginia’s sentencing guidelines are too lax, with several legislators expressing agreement.

At a series of interviews of 35 judges seeking reelection on Dec. 14, members of the General Assembly’s courts committees listened closely to PROTECT’s presentation and invited judges to respond to critical comments.

Two circuit judges were singled out for showing “troubling and potentially dangerous patterns of sentencing on crimes against children,” in the words of the group’s report.

Those targeted judges, Junious P. Fulton III of Norfolk and William R. O’Brien of Virginia Beach, both defended their records before the legislators. “I think the criticism is misdirected,” O’Brien said.

Another circuit judge targeted by PROTECT already had announced plans to retire and did not appear before the Assembly committees. Isaac St. C. Freeman of Smyth County was highlighted in the group’s report as having been “repeatedly criticized” for rulings involving “predatory criminals.”

In an interview with Virginia Lawyers Weekly, Freeman disputed the group’s characterization of his record and invited review of his cases. “Let me just say what was printed about me was inaccurate,” he said.

It wasn’t all bad news for judges. Alexandria Circuit Judge Lisa B. Kemler came in for praise from the group for sentences “markedly more in line with the values of average Virginians.”

The PROTECT report said Freeman, Fulton and O’Brien allowed offenders to avoid jail time for serious sex crimes such as aggravated sexual battery of a victim under 13, aggravated sexual battery of an incapacitated person and indecent liberties with a minor. Lobbyist Camille Cooper highlighted the numbers before the legislators.

O’Brien and Fulton each defended their records. Of 27 cases, only two sentences were below the guidelines, O’Brien said.  “I always question both sides” when a case involves a possible sentence below the sentencing guidelines, he added.

While he expressed agreement with the group’s effort to protect children, “I disagree with their numbers,” O’Brien said.

Fulton said six of the cases attributed to him with no effective jail time involved plea agreements.

Fulton told committee members that, as a former prosecutor, he is aware of the damage to child victims of sex abuse. “I’m very sensitive to Ms. Cooper’s concerns,” he told the legislators.

Both O’Brien and Fulton were offered the opportunity to submit additional responses to the two courts committees.

PROTECT is the lobbying arm of the National Association to Protect Children, headquartered in Knoxville, Tenn. Through the efforts of Cooper, the group’s director of legislative affairs, PROTECT has advocated since 2003 for tougher Virginia laws against those who victimize children.

The group claims victories in Virginia this year with increased law enforcement spending, a new law targeting materials that can be used by predators to target children, and expanded reporting requirements on court actions.

Cooper’s message on judges may have gained more traction this time around. In January, Sen. Thomas J. Norment Jr., chair of the Senate Courts Committee, resisted what he saw as an “ambush situation” when the group criticized judicial sentencing during the interview process.

Norment, R-Williamsburg, also questioned the group’s dependence on figures from a state database. “We’re not going to let someone in with a computer” to criticize a sentencing record, Norment said at the time.

Cooper said Norment was “much more comfortable” this year when the group prepared a written report explaining its data. Norment did not return a call for comment as of press time.

“They raise very important and very serious issues,” said Del. Benjamin L. Cline, R-Amherst. “I’m grateful to Camille and PROTECT for providing the data for us.”

Cooper acknowledges some of the criticism of judges could be misdirected. One of the legislators was concerned that light sentences attributed to Fulton might have been imposed by substitute judges.

Cline said sentencing statistics don’t always tell the whole story. “There are always additional aspects of a case that make it unique,” he said.

Del. David B. Albo pointed out the group does not have access to the factual scenarios of the cases, the basis for plea agreements or pre-sentence reports on the defendants. He noted the statute punishing aggravated sexual battery covers a wide range of situations, from relative innocuous behavior to extremely harmful.

“They still have done a great service because of the problem they’ve identified with sentencing guidelines,” Albo said.

Albo agreed with the group’s criticism that the use of historical sentencing data to generate sentencing guidelines means the guidelines become too lenient. Some sentences are reduced for reasons other than the seriousness of the crime, such as problems with evidence.

Albo said the only fix is to increase mandatory minimum sentences, and that costs money. Tougher mandatory sentences mean the state budget has to be adjusted to account for more people behind bars.

At the judicial interview session, Cooper fielded questions from legislators about the group’s methodology.

The group developed a database of more than 300 defendants to assemble figures for individual circuit judges. Much of the information came from a ground breaking Virginia program called the Virginia Child Protection Accountability System.

Operated by the Virginia Department of Social Services, the project requires state agencies to collect and report data annually on their child protection performance at the county or circuit court level, according to the PROTECT report. The administrative arm of the Supreme Court of Virginia is now among the agencies which contribute data to the project. DSS publishes the data on a public website.

The system was created as part of “Alicia’s Law.” Named for a child abuse victim, the 2008 law is best known for creating a funding source for child protection efforts.

“We wanted to make sure people were comfortable we knew what we were talking about,” Cooper said.

She pledged to continue the effort. “We going to go further and further into the weeds and we’re going to be more comprehensive in our approach,” she said.

Aside from the PROTECT report, the judicial interviews were marked by questions about judges’ use of deferred dispositions, the burden of more widely available protective orders, and the impact of an ongoing study of judicial caseloads.

Cline led the questioning about judges’ use of the so-called Hernandez authority to take cases under advisement and later dismiss charges. The judges said they did not entertain requests for deferred disposition without the agreement or acquiescence of the prosecution.

Lynchburg General District Judge R. Edwin Burnette Jr. said the number of protective order requests seems to have reached a plateau since an expanded law went into effect last year. “We find in my court it’s a little more manageable now.”

Nevertheless, Burnette added it is not uncommon for the clerk’s staff to spend 20 minutes on one request for a protective order.

“Quite frankly, they are time consuming,” he said.

His comments generally were echoed by other general district judges.

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