Where there’s smoke…

A witness who was held in contempt after admitting to using marijuana before testifying at a felony assault trial saw the circuit court partially grant her motion to vacate her conviction.

Her 10-day jail sentence, however, was modified to time served.

The ruling from Loudoun County Circuit Judge James P. Fisher in Commonwealth v. Orndoff (VLW 022-8-001) was entered Jan. 14, more than three months after he found the witness, Katie Orndoff, in contempt of court and declared a mistrial in the felony assault case.

Fisher’s ruling at the time generated national headlines and sparked backlash and protests from groups and individuals who disagreed with the conviction of contempt.

Background

Orndoff was a witness in a felony jury trial where she claimed the defendant had assaulted her.

According to the opinion, Orndoff testified for more than an hour, during which “as time passed, her physical and verbal demeanor worsened.”

Fisher wrote that Orndoff’s answers were “circuitous, rambling and confused and somewhat incoherent” and that she “[made] peculiar hand, arm and facial gestures.”

The judge added that, by the end of Orndoff’s testimony, “she had volunteered nonresponsive, legally inadmissible, prejudicial information about the defendant 10 times.”

Defense counsel asked for a sidebar conference, and Orndoff admitted she had used marijuana prior to coming to court.

“The court, finding that her explanation did not excuse or justify her testimonial misconduct, convicted her of contempt,” Fisher wrote. He sentenced Orndoff to 10 days in jail, citing the fact that her testimony caused a mistrial in the case. She was released after two days.

Orndoff filed a motion to vacate the contempt conviction on Sept. 22, 2021. Loudoun County Commonwealth’s Attorney Buta Biberaj also filed written pleadings in support of Orndoff. A hearing was granted, and the court heard oral argument on the motion to vacate.

Motion to vacate

Fisher said the “precise question for this court is whether a witness who (1) appears for a felony jury trial in a voluntarily intoxicated condition, (2) testifies incompetently and with unfair prejudice to the accused despite admonitions from the court, and (3) consequently causes a mistrial, is guilty of direct summary criminal contempt pursuant to VA Code Ann. § 18.2-456 (1) and related authorities.”

The judge wrote, “Upon this court’s review of its prior findings of fact and conclusions of law, both on the record, and as set forth in its prior written orders, and upon a reconsideration of the same after argument of counsel, the answer remains yes.”

Fisher explained that Orndoff asserted three arguments for analysis: that even if she was intoxicated, she did “nothing that qualified as legally contemptable conduct because her actions did nothing to ‘obstruct’ the court or ‘interrupt the administration of justice’”; that she lacked the “specific intent to behave contemptuously or to otherwise purposefully disrupt the court”; and that the substances she used were used outside of the court, making this indirect contempt instead of direct contempt.

The main provision at issue — Va. Code Ann. § 18.2-456(1) — is divided into two clauses. One bans “misbehavior in the presence of the court,” while the other prohibits “misbehavior … so near thereto as to obstruct or interrupt the administration of justice.”

Fisher said that Orndoff’s conduct violated the first clause, and “simultaneously ‘obstructed’ or ‘interrupted’ the administration of justice.”

“The sum total of unfairly prejudicial testimony given by Orndoff, while voluntarily intoxicated, created the necessity of declaring a mistrial,” the judge wrote. “More particularly, the intoxication, along with the above-described manifestations of intoxication, constituted ‘misbehavior’ in the direct presence of the court.”

Fisher said that Orndoff’s “misbehavior” was her appearance as a witness “in an intoxicated condition that caused unfair prejudice within the trial.”

While intent is required to sustain a criminal content conviction, “contempt is not a specific-intent offense” in Virginia, the judge said.

“While she perhaps had no specific malevolent intent or purpose in disrupting the orderly conduct of the court’s business, no such intent is required,” Fisher wrote, adding that “the willfulness and recklessness” of consuming intoxicating substances prior to a known court appearance satisfies the intent element of contempt.

The judge said that “no portion of the court’s finding of contempt depended, in any way, upon knowing exactly how, when or where Ms. Orndoff became intoxicated,” adding that the court did not rely on her acknowledgment of having consumed marijuana.

Fisher also noted that questioning by the court during sidebar was not intended to obtain evidence; rather, it was to “allow [Orndoff] the opportunity to offer evidence of an excuse of justification in defense or mitigation of her misbehavior.”

As such, “this court finds, upon review of the record and the applicable law, that the questioning of Orndoff was properly a legitimate, if not standard, part of a summary inquiry in a matter of direct contempt,” the judge said.

Ultimately, Fisher denied the motion to vacate Orndoff’s conviction, but granted her motion to commute her sentence to time served, which released her from bail bond conditions imposed by the court.

LoudounNow reported last December that Orndoff’s release was on terms that included a $1,000 unsecured bond, regular drug and alcohol screenings and entry into a pretrial supervision program.

The initial ruling of contempt last fall led to calls for Fisher’s censure from critics of the decision and protests at the Loudoun County courthouse. In a statement at the time, Orndoff said she “learned that it does no good to report domestic abuse because the system and the courts appear to have no real interest in protecting victims and punishing abusers.”

Editor’s note: After this story went to press, Virginia Lawyers Weekly learned that Orndoff filed an appellant brief on March 25, 2022, identifying 13 assignments of error. Thomas K. Plofchan Jr. of Westlake Legal Group in Potomac Falls said the most notable assignment is that Orndoff has asked the Court of Appeals to determine whether Fisher’s findings of fact are credible as Orndoff asserts they are not supported by review of the video and audio tapes of the hearing. Fisher, in the opinion, asserts that his view of the situation should be considered more accurate than video and audio recordings. Orndoff challenges the logic of that assertion.