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Plaintiff is Culpeper’s top prosecutor

IN THE COURTROOM

Plaintiff is Culpeper's top prosecutor

Defendant extradited from California


Confusion reigned for a brief time after Emalia Bevil left court July 23.

“I won’t be here,” Judge Carpenter announced after learning that General District Court Judge Dale Durrer had earlier disqualified himself from hearing the commonwealth’s case against Bevil. “I’ll be sitting in Goochland that day,” Carpenter said.

Bevil is the 25-year-old California woman accused of sending threatening messages to Culpeper County Commonwealth’s Attorney Megan Frederick.

Carpenter had just set September 29 as the next date Bevil would have to appear in court when he learned Durrer could not participate in the case against Bevil.

Carpenter said that no one had told him Frederick was the alleged target of the threatening messages which created the reason for Durrer to pull himself out of the case.

Durrer had served seven months as Deputy Commonwealth's Attorney under Frederick before he himself had been elevated to the bench.

Judge Carpenter then ordered bailiffs to call back into court Bevil’s defense attorney Fred Henshaw and the special prosecutor appointed for the case, Charlottesville Commonwealth's Attorney Dave Chapman.

“They caught me as I was leaving the door,” Henshaw told the court upon returning. Chapman could not be found having already left the courthouse. Bevil did not return to court but remained in jail where she has been held since her return to Virginia in June.

Judge Carpenter and Henshaw then set October 1 for Bevil’s next appearance with Henshaw given the additional task of informing Chapman of the new date. The court clerk’s office also independently informed Chapman of the change in dates, according to the court file.

Bevil’s alleged contact with Frederick allegedly stems from the 11-year-period when Frederick worked for Child Protective Services in Virginia Beach.

Bevil was living in Victorville, California when she was extradited by Virginia and brought to Culpeper to face two counts of making threats in writing under a Class 6 felony punishable to a prison term of one to five years and/or a fine up to $2,500. Two Culpeper deputies were sent to California on a three day mission to pick up the woman and bring her back to Culpeper--all at state expense.

Henshaw, Bevil’s court appointed attorney, requested a mental evaluation of his client which led to the courtroom appearance last week. Judge Carpenter granted the request and ordered the results of the examination to be returned to the court for the Oct. 1 hearing. The special prosecutor, Chapman, did not object to the evaluation which will be performed by Charlottesville psychologist Jennifer Rasmussen, at state expense.

In his motion for the evaluation, Henshaw wrote that Bevil “has deep seated psychological issues that stem from when she was removed from her biological parents and put in the Foster Care System.” The motion is to determine Bevil’s sanity at the time of the alleged offense.

The petite Bevil appeared in court, her feet and hands shackled, and dressed in red and white striped jail clothing. Frederick sat at a table in the courtroom and watched as the proceedings took place. Once Bevil left Frederick did as well returning to her office. Deputy Commonwealth's Attorney David Barrado and Assistant Commonwealth's Attorney Margarita Wood remained in the crowded General District courtroom.



What does “Recuse” mean?

The short answer is that it means to remove oneself from the position of judging or prosecuting a case.

The commonwealth’s case against California resident Emalia Bevil creates legal and ethical pitfalls not apparent to those outside of the legal profession. Thus the flurry of substitutions that Culpeper residents have seen take place as first the Commonwealth's Attorney, a special prosecutor and then the General District Court Judge all have removed themselves, or recused themselves, from prosecuting or hearing the allegations against Bevil.

Durrer faced two issues when confronted with the case. First, he had worked for the alleged victim in the case, Megan Frederick, as recently as last year, prior to being appointed as a judge. The outside observer could think that the previous working relationship between the two might in some way influence his rulings as the case progressed.

Secondly, Durrer is the sitting judge in the county where Frederick’s office prosecutes before him every week. Again, the outside observer might think that he could be influenced by that regular contact between him and Frederick’s office.

One of the rules that Durrer has to observe is not only must he avoid any real conflict of interest that might arise between him and someone who comes before him, but the appearance of a conflict of interest, even if none exists, is enough to require a judge to remove himself from hearing a case. The proper term being to “recuse” himself.

Judges often recuse themselves from hearing a case and it is understandable. No one would want to see a judge hearing a case against his or her spouse, relative, friend or business associate. Which explains one of the main complaints heard from judges upon taking the bench: the isolation often required of them to effectively perform their duties. Besides the requirement that judges refrain from political activities, they often find themselves withdrawing from bar and social activities so as not to create situations that could create a real or perceived conflict of interest between the judge and those who appear before him.

Commonwealth's Attorneys have to live under the same rules but obviously to a lesser extent because, if for no other reason, the office is elected and requires some political involvement in the community. Even so, prosecutors are required to remove themselves from prosecuting defendants with whom they have a relationship that outside observers could think would cloud their judgment either for or against the defendant.

In the Bevil case, Frederick is the alleged victim. Should the case go to trial she may be required to testify. Any outside observer could question Frederick’s impartiality in deciding whether Bevil should be charged, whether she should be extradited and whether Bevil should be offered a plea agreement. And, it would prove awkward for all involved, if Frederick were questioned on the stand by one of her employees during a trial.

Frederick, like Durrer, had to remove herself and the Culpeper Commonwealth's Attorney’s office from the case to prevent any appearance of impropriety to the outside observer.

Judges who recuse themselves generally trade among each other for court dates when a conflict occurs. Usually they trade places, exchanging one court for the other, since each often have court duties on the same day but in different counties. Judge Carpenter holds court in several counties as does Durrer. He is a regular substitute for Culpeper when Durrer cannot hold court here.

Commonwealth's Attorneys, when they see the need, apply for a special prosecutor to be appointed by the Circuit Court Judge of the county. In this case Circuit Court Judge Susan Whitlock first appointed Commonwealth's Attorney Jeff Haislip of Fluvanna County May 12. One month later Haislip asked to be removed from the case due to “circumstances (that) have arisen that have caused him to deem it improper for him….to participate in the prosecution of… (Bevil).”

Judge Whitlock then appointed Charlottesville Commonwealth's Attorney Dave Chapman to prosecute the case.

Commonwealth's Attorneys are not compensated for their work in other counties but they must agree to the appointment. They are reimbursed by the court for traveling expenses.


Gary Close is a freelance contributor with the Culpeper Times. You may reach him at g57close@aol.com.

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