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PORTSMOUTH — Before a trial even began, a judge on Tuesday dismissed two misdemeanor charges against Vice Mayor Lisa Lucas-Burke, agreeing with her lawyer that an investigation of an elected official must be undertaken at the request of the governor, attorney general or a grand jury — not by a member of the public.
The charges against Lucas-Burke were brought by 42-year-old Portsmouth resident Tommy Dubois, who went before a magistrate in August. He accused her of violating the city charter this summer when she called for the police chief’s firing after police charged 19 people — including state Sen. Louise Lucas, the vice mayor’s mother — in vandalism at the city’s Confederate monument in June.
Under the law, Dubois cannot appeal the judge’s dismissal, but he could try to seek charges in one of the allowed ways, which he said he plans to do.
In General District Court on Tuesday, the vice mayor’s lawyer, Michael Massie, asked the judge to throw out the charges without a trial, arguing there are only three entities that can present cases against elected officials in Virginia.
Robert Carter, a retired Chesapeake judge assigned to hear the case, looked at the law Massie cited and asked Dubois if he got permission to bring the charges.
“No, sir,” Dubois replied.
Carter said the code section blocks the charges, unless Dubois goes through the governor, the attorney general or a grand jury. Before dismissing the case, the judge told Lucas-Burke that he didn’t know what happened but reminded her the City Council can only hire and fire certain officials who report directly to them, such as the city manager and city attorney.
“Don’t let anger set your tongue on fire because it will ultimately burn you,” Carter said.
Dubois accused Lucas-Burke of unlawfully directing or requesting then-Police Chief Angela Greene’s removal. The city charter section he cited says City Council members can’t take part in or “direct or request” the hiring or firing of city workers employed by the city manager.
Dubois said one of the counts stemmed from comments Lucas-Burke made at a rally in August and the other from an email she wrote. He previously told The Virginian-Pilot he heard about the city charter section on Facebook.
Had Lucas-Burke been convicted, she would have lost her position on the City Council. She’s currently running for reelection in November. The charges carried a possible fine of up to $500, but no jail time.
Lucas-Burke said she learned a lesson from the case: “I’m going to take it and be better for all of the citizens of Portsmouth.”
Massie described the climate in the country and city as one in which “people need to be better.”
“The love of God says that we all are the same. And when people recognize that there’s no distinction — that you’re not better or more powerful because your skin is a different hue — then we will live together in a very peaceful climate and environment,” Massie said outside the courthouse. " ... Things in this country have suggested — and we all know the history of this country — that things have just been volatile. And African Americans have gotten just pretty much fed up. And so we’ve seen some of that in Portsmouth as well. We all could be better, we all can be different, we all can be more loving.”
After the hearing, Dubois said he felt it was “plain stupid” that citizens who vote in the city can’t keep check on the officials they vote into office.
“I think it’s garbage,” Dubois said. He said he plans to research further and pursue charges through other channels.
Dubois, who is white, has said his decision to seek charges against Lucas-Burke, who is Black, had nothing to do with race but was “about right and wrong.”
Many of those charged in the June 10 protest at the city’s Confederate monument are Black. Many Black officials, activists and historians have said they view the criminal charges as the most recent example in a lengthy history of white people using the criminal justice system to intimidate powerful Black leaders.
Virginia Democrats and activists also questioned the timing of the charges, announced a day ahead of a special legislative session during which Louise Lucas and others were set to discuss criminal justice reform.
In all, 19 people are charged with felonies in the vandalism, including Lucas, NAACP leaders, several public defenders and a School Board member. Their cases are still pending in court.
The afternoon of June 10, people spray painted the monument ahead of a planned rally. Lucas told police at the scene that they couldn’t arrest protesters. Hours later, after Lucas left, protesters beheaded four statues of soldiers attached to the monument and pulled one down with a tow rope. A man was seriously injured when the statue fell on him.
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Neither the city manager nor Portsmouth’s elected commonwealth’s attorney knew the charges, announced two months after the protest, were coming.
In the aftermath of the protest and charges, much has happened: Then-city manager Lydia Pettis Patton temporarily removed Greene from her position. Days later, Pettis Patton resigned, and the City Council fired City Attorney Solomon Ashby. Both moves happened with no detailed public explanation.
Twice, NAACP leaders tried but were rejected in their efforts to file the same criminal charges Lucas-Burke faced against two other City Council members, Bill Moody and Elizabeth Psimas, alleging they violated a different clause of the same charter section by telling the police chief to charge protesters.
Both council members have said they were expressing their opinions and did nothing wrong.
The NAACP officials suggested the magistrate’s decision not to grant charges, when Lucas-Burke was charged with violating the same section, shows a racist double standard.
Staff writer Margaux MacColl contributed to this report.
Margaret Matray, 757-222-5216, margaret.matray@pilotonline.com