Lawyers say evidence blunders led to wrongful conviction

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Defense lawyers say mistakes and misconduct kept an Albemarle County jury from hearing evidence that should have exonerated a former grocery store manager convicted of drugging and kidnapping a young woman.

Instead, the jury last May convicted Mark Weiner of abduction with intent to defile and recommended a 20-year sentence.

With new lawyers, Weiner now is asking the judge to throw out the jury’s verdict and either acquit him or order a new trial.

Weiner was convicted based on his accuser’s claim that he drugged her with a cloth over her face and took her to an abandoned house, where she escaped.

The lawyers claimed the crime never took place and the alleged victim made up her story to get attention from a boyfriend.

“It is a ludicrous story, unworthy of belief,” one of Weiner’s lawyers said.

Among their evidence, Weiner’s lawyers pointed to cellphone records and out-of-court statements which they said could have undermined the accuser’s testimony.

Weiner’s trial lawyer admitted in an affidavit that he failed to take steps needed to get cellphone location evidence to the jury and failed to appreciate how other phone records also would have contradicted the accuser’s story.

Weiner’s new lawyers also said the jury never heard scientific evidence that would have weakened her account of being knocked out by an anesthetic drug. The jury never saw texts with the boyfriend suggesting she was inventing a melodrama for his benefit.

Weiner’s motion was filed Monday by Richmond lawyers Steven D. Benjamin and Betty Layne DesPortes.

Jury heard competing accounts

Weiner was found guilty nearly a year ago despite a lack of any physical evidence tying him to the alleged crime scene or to the alleged victim’s cellphone.

After Weiner’s conviction at the end of a four-day trial, attention focused on claims by the defense that Commonwealth’s Attorney Denise Y. Lunsford had blocked the use of critical cellphone location data that undercut the state’s case.

The motion to set aside the verdict goes further, revealing other information supporting Weiner’s account of events on Dec. 13, 2012.

Weiner, then-manager of a downtown Charlottesville Food Lion store, said he was driving home when he spotted the 20-year-old alleged victim by the road. He said he gave her a ride to her mother’s apartment just east of Charlottesville and then drove to his own home in Green County.

According to the accuser, however, Weiner put a cloth over her face and she blacked out, waking up at an abandoned house further east of Charlottesville. She claimed she jumped out of the house while Weiner was distracted, escaped into some woods, and made it back to her mother’s apartment.

“Mark Weiner was convicted of a crime that never occurred,” his lawyers said in their motion. They contended the accuser – whose husband was in prison – fabricated the abduction to provoke a boyfriend who had refused to let her stay at his apartment.

Because the accuser “was permitted to testify falsely, and because cellphone records and other evidence were not admitted that would have proven her lies, the jury was denied material evidence of her perjury and Mark Weiner’s innocence,” wrote Benjamin and DesPortes.

Motion centers on cellphone data

The cellphone evidence is a linchpin of the defense motion.

The prosecution had evidence from a phone company representative that the accuser’s cellphone was still functioning at a time when she said the phone had died, the defense contended. The records of her cell phone use did not square with her testimony about her calls, the motion said.

Cellphone location information also showed the phone being used near the mother’s apartment, not in the area of the abandoned house, the motion said.

“By preventing the evidence in the cellphone records from being presented to the jury to prove the falsity of [the accuser’s] testimony, the prosecution committed constructive fraud upon the court,” Weiner’s lawyers said.

Information from Weiner’s own cellphone also could have helped his defense, his lawyers said. GPS data reportedly showed the phone was 17 miles away from the abandoned house a short time after Weiner was last seen at the house, according to the accuser’s story.

Other potential evidence

Other evidence tends to disprove the state’s case, Weiner’s lawyers said. Their allegations include:

• An anesthesiologist stated there is no “volatile anesthetic” which would have rendered an adult female completely unconscious in 10-15 seconds.
• A phone number written on a matchbook cover was discovered by Weiner’s trial lawyer and would have supported his account that he wrote down the accuser’s number as he let her out.
• A text message from her boyfriend shortly after the incident read, “why did u lie to me…”
• In two recorded conversations with her imprisoned husband, the accuser gave inconsistent versions of the events. In another unrecorded conversation, the lawyers said, the accuser admitted her story was an “elaborate scam” that had gone “horribly wrong.”

“Her story was pure fiction and an affront to common sense,” Weiner’s lawyers said. Evidence of Weiner’s innocence is “overwhelming,” they contended.

Trial lawyer admits fault

Weiner’s new lawyers claim his trial lawyer, Charlottesville’s Ford Childress, was ineffective in several ways, including:

• He failed to subpoena the alleged victim’s cellphone records;
• He failed to get expert help with the available cellphone records;
• He failed to get proper authentication to introduce cellphone records at trial;
• He failed to get the matchbook into evidence to corroborate Weiner’s account of writing down a phone number; and
• He failed to produce expert evidence on the effect of volatile anesthetics.

Lunsford said she is considering the defense motion and will file her response by a May 5 deadline.

Both sides confirmed that they had talked as the defense investigation turned up new information.

Benjamin said the defense lawyers laid out their case for innocence and asked for any rebuttal. “We reached out to the prosecution. We asked for explanations. None were provided,” Benjamin said.

Lunsford contended that some of the cellphone data fails to support the conclusions derived by the defense. She said she intends to examine the other new evidence before taking a position.

After Weiner’s conviction last year, Albemarle County Circuit Judge Cheryl V. Higgins delayed sentencing to allow for post-trial motions. Weiner has remained in jail since Dec. 14, 2012, the day after the alleged incident occurred.

Higgins will hear arguments April 30 on whether she will consider evidence of ineffective assistance of counsel.

Lunsford contends those arguments are appropriate only at the habeas corpus stage of post-conviction motions, while Benjamin said the trial judge always has jurisdiction to consider whether there has been a denial of fundamental rights.

“It will be a whole new day if she allows this to happen. I expect we’ll be seeing a lot more of these,” Lunsford said.

Benjamin praised Childress for assisting in Weiner’s new arguments, a move that required acknowledging shortcomings in his trial defense.

“It is the right thing to do. No lawyer’s perfect. The only way we can assume the awful responsibility of criminal defense work is by accepting that we’re not perfect and doing all we can to correct our own mistakes,” Benjamin said.