Virginia Lawyers Weekly VA Lawyers Weekly
In the wake of a 2017 boating accident that claimed the life of a young investment banker, an aborted plea agreement has raised questions over how much influence crime victims can have on the course of prosecution.
In a rare move, lawyers for the parents of Graham McCormick have moved to disqualify the commonwealth’s attorney prosecuting the man accused of causing McCormick’s death. The parents contend Lancaster County Commonwealth’s Attorney Jan C. Smith fumbled when he approved what they see as an overly generous plea deal with defendant John “Rand” Hooper.
Hooper’s lawyers, however, argue the parents have no standing to ask for removal of the elected prosecutor. The lawyers say recognizing the parents’ motion would open courthouse doors for victims to question the judgment and qualifications of any prosecutor in any case.
Plea deal hits snag
Hooper’s criminal prosecution has dragged on well past a speedy $4 million settlement of a civil lawsuit. Insurers for the Hooper family moved quickly last year to resolve tort claims that relied in part on the parents’ alleged tolerance of Rand Hooper’s reckless lifestyle.
The accident happened in August 2017. The lawsuit was settled in April of 2018. But Hooper was not charged with felonies until July 27 of last year. A grand jury returned indictments for aggravated involuntary manslaughter while operating a watercraft under the influence and failing to stop for a boat accident involving injury or death.
Some of the delay was attributable to the mysterious circumstances of the crash. Hooper at first denied any recollection of the fatal boat trip, then claimed to recall only that he and McCormick, 31, had set off together after friends had gone to bed.
A plea agreement was scheduled to be heard on June 19 as friends and family members of both Hooper and McCormick filled the Irvington courtroom. But Judge R. Michael McKenney surprised the gathering by announcing he would postpone the proceedings and recuse himself from the case.
McKenney said he received a letter from a citizen suggesting that the judge had already evaluated the evidence and looked favorably on a plea deal. The letter, and other reports, indicated that Smith – the commonwealth’s attorney – had signaled to interested persons that the judge thought a plea agreement was proper.
McKenney said the suggestion that he had prejudged the evidence called for him to step aside to ensure the appearance of fairness. A standing order calls for Judge Herbert M. Hewitt to sit in his place.
Family seeks disqualification
McCormick’s parents said they have long chafed at what they viewed as a turgid criminal prosecution of Hooper. The judge’s recusal and resulting delay prompted them to submit their concerns to the court through Gregory D. Habeeb of Richmond, one of the attorneys in their civil action.
In a July 2 “Motion to Disqualify Commonwealth’s Attorney,” the parents contended Smith should be replaced for the appearance of impropriety, the appearance of incompetence, the appearance of lack of impartiality and alleged improper communications with the court. They cited Virginia law affording rights to crime victims and witnesses.
The parents said Smith refused to step aside at their suggestion in November, when he acknowledged contact with the Hooper family. They claim he cited concerns about standing for re-election in 2019. The parents said he again refused to step down last month when they opposed his proposal for Hooper to serve a year in jail in exchange for guilty pleas.
Burke McCormick – Graham’s father – said in an affidavit that Smith told him that he had gone over the case with the judge and the judge had doubts about whether the prosecution could meet its burden on the manslaughter charge.
An affidavit from the owner of the accident site said Smith had told him the same thing.
Standing questioned
Hooper’s lawyers say the parent’s motion is misplaced and should be returned as “improvidently submitted” for lack of legal standing.
In a motion filed July 9, the defense team acknowledged the understandable concern of the grieving family, but they said the disqualification motion seeks to “usurp the collective judgment of the enlightened electorate of Lancaster County.”
The motion represents an “improper and impermissible effort to affect a fair review” of the case, the defense lawyers said.
“One can imagine the effect on our system of justice if in every case where one side or the other was aggrieved or felt slighted (virtually every case), they could file a motion demanding the removal of the elected and experienced professional prosecutor, or the jurist, or a counsel. Nearly every family of a sentenced criminal defendant would avail themselves of this method of a collateral attack,” wrote Craig S. Cooley of Richmond for the team that also included Jeffrey P. Matthews and James C. Breeden of Irvington.
Reached on July 10, Habeeb said McCormick’s parents contend that they have a right to be heard under Virginia Code § 19.2-11.01 and other statutes addressing the rights of crime victims.
August hearing possible
Other Virginia commonwealth’s attorneys declined to comment on the dispute, citing the pending case.
“We simply do not have all the facts at hand necessary to make an intelligent response,” wrote Michael R. Doucette, executive director of the Virginia Association of Commonwealth’s Attorneys. “It would be our hope that the issue will be fully and fairly developed in court so that a just decision can be made.”
A hearing scheduled for July 12 was cancelled late July 10. As of press time, a draft order had been prepared setting an Aug. 19 date, but no official action had yet been taken to alter the schedule, according to the clerk.
Smith was elected commonwealth’s attorney in 2015, defeating then-incumbent Robert L. Cunningham. In this year’s election, he faces opposition from former Caroline County Commonwealth’s Attorney Tony Spencer, a Republican, and from a former part-time assistant in Smith’s office, Margaret M. “Maggie” Ransone, an Independent.
