Judge remains defendant in civil rights lawsuit

Judge John Marshall

A Henrico County judge will remain as a defendant in a lawsuit alleging he and two siblings abused the protective order process to temporarily banish their father’s second wife from her home. A Henrico County police officer also is named in the federal civil rights action.

The incident arose out of family suspicions of elder abuse focused on the second wife of the late Watson “Bubba” Marshall, a retired Richmond lawyer who died in 2018 at age 80.

Circuit Judge John Marshall – a son of Watson Marshall – is accused of helping his brother and one sister persuade authorities to order the wife out of her home while family members removed personal items from the house. U.S. District Judge David J. Novak ruled March 1 that allegations in the lawsuit were sufficient to allow the case against three Marshall family members and the officer to survive motions to dismiss.

“The complaint in this case alleges a shocking abuse of the state judicial system to remove a 57-year-old woman from her home, while her enfeebled husband lay incapacitated in his death bed in the hospital. That this occurred in a jurisdiction where one of the Defendants serves as a Circuit Court judge renders it even more disturbing,” Novak wrote.

Novak’s 53-page opinion allowing the case to advance is Marshall v. Marshall (VLW 021-3-081).

Father estranged from children

The pleadings and Novak’s opinion depict a painful family schism over the decision by Watson Marshall to divorce his wife of 58 years in 2014 and then marry a woman 19 years his junior. His four children were upset that Marshall essentially replaced their mother and moved in with a new wife. The new wife, Cynthia, perceived “open hostility” from the children of her husband.

Relations soured to the point that Marshall told his children he would not see them outside Cynthia’s presence, according to Novak’s opinion citing allegations of the suit. Son John Marshall reportedly said he would abide by the rule, but said it meant he would no longer see his father. Through pleadings filed by his counsel, Marshall said that he loved and supported his father “despite choices Watson Marshall may have made that resulted in pain to their family.”

In 2018, about three years after marrying Cynthia, Watson Marshall’s health began to decline, the opinion recounted. He was hospitalized for several days and signed an advance directive giving Cynthia the power to make health care decisions. The Marshall children came to suspect elder abuse by Cynthia.

Watson was readmitted to the hospital a few weeks later. Cynthia kept a vigil in his room, but on July 21 she was persuaded by one of Watson’s daughters to go home to rest, Novak summarized. With Cynthia out of the way, the Marshall children allegedly summoned a lawyer to the hospital room to have the elder Marshall execute a new power of attorney giving broad authority to Marshall’s two sons.

Using the new POA, the lawyer filed for divorce on behalf of Watson Marshall, and the family blocked Cynthia’s access to him at the hospital, Novak said. When she came to visit, hospital security forced her to leave.

Protective order

The Marshall children then sought an emergency protective order, or EPO, to bar any contact between Watson and Cynthia. The complaint alleged that one purpose of the EPO was to bar Cynthia from her home – at that time jointly owned by the couple – and allow the Marshall children to “take what they saw fit” from the home.

The EPO states that Watson Marshall was granted possession of the premises, despite being hospitalized with little immediate likelihood of returning to the home, Novak said.

Henrico officers served the EPO shortly after 11 p.m. on July 26, 2018, and advised Cynthia she needed to leave her house within eight minutes and could not return until the EPO expired four days later, the complaint alleges. An officer demanded a key and gave it to one of the Marshall children, the suit claims.

The next day, using the key, one of Marshall’s daughters allegedly “ransacked” the house and carried away a number of items, including things unrelated to any suspicions about elder abuse by Cynthia.

The eviction was unconstitutional, Cynthia contends in her complaint. John Marshall – the Henrico judge – faces claims of conspiracy to cause unconstitutional eviction, unconstitutional conspiracy to deprive of property and common law conspiracy to deprive a lawful owner of property.

‘Manipulation’

Allowing those and other claims against three of the four Marshall siblings to continue, Novak brushed aside protests that the EPO itself was valid. He pointed to what he called “extreme manipulation” in getting the order issued.

“According to Plaintiff’s allegations, Defendants schemed to acquire power of attorney from a feeble, incapacitated and dying man. Presumably using this questionably acquired authority, they then submitted an unsigned divorce complaint on behalf of their father who they days later described as being “in hospital/hospice care” and “incapable of filing a petition on his own behalf,” Novak wrote.

“In turn, they used this unsigned divorce complaint as an exhibit to support their EPO petition…. This was all accomplished in the same court system and district where one of the Defendants serves in the very powerful and influential position of a Circuit Court judge,” Novak continued.

Novak rejected the defense that the complaint was merely an attempt to relitigate a matter already resolved in state court.

Officer remains in case

Novak ruled claims against the Henrico police officer also would stand.

“That Henrico County police officers watched as Andrea and Robert looted Plaintiff’s home with impunity renders Officer Holmes’ conduct even more suspect, particularly if discovery reveals that he directed his colleagues to stand idly by as the plundering occurred. Surely, police officers in executing the EPO could not have reasonably believed that this temporary order that – by its explicit terms – did not affect title to any property named therein would allow others to pillage a citizen’s home during the three-day period of its pendency,” Novak wrote.

An EPO is intended to allow the court system to protect the safety of a domestic abuse victim on an emergency basis, the judge said. “It does not serve as a mechanism by which disgruntled citizens may claim the protections of the court system to further the ends of their private grudges and wreak havoc on the lives of their personal enemies without consequence,” Novak wrote. A reasonable officer would have known better, the judge said.

A settlement conference is scheduled for April 12.

Counsel

Cynthia Marshall is represented by civil rights attorney Victor M. Glasberg of Alexandria, who declined to comment on Novak’s ruling.

John Marshall – the circuit judge – is represented by Caroline V. Davis and other lawyers from Duane, Hauck, Davis, Gravatt & Campbell PC of Richmond. Marshall’s attorneys were unavailable for comment. In pleadings, however, Marshall rejected the premise of the lawsuit.

“While it is all too common for perpetrators of domestic abuse to blame their victims and those who support them, it is entirely unacceptable to allow them to use the court system for unwarranted retaliation and vengeance,” Marshall’s legal team said in a brief.

Glasberg said in a brief that Cynthia Marshall was investigated by authorities who found all charges of elder abuse to be “meritless.”

Other Marshall children are represented by S. Keith Barker of Glen Allen, William D. Bayliss of Williams Mullen in Richmond and Irving M. Blank of Blank & Marcus in Richmond. The Henrico County police officer – T.W. Holmes – is represented by Senior Assistant County Attorney John D. McChesney.

Marshall was appointed as a general district judge in 2005 and named to the circuit bench in 2015.