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Portsmouth — Portsmouth police have listed the city’s top prosecutor as a potential witness in the felony cases they filed Monday against state Sen. Louise Lucas and 13 others in a June protest at Portsmouth’s Confederate monument.
The move could effectively block Commonwealth’s Attorney Stephanie Morales and her office from being involved in the prosecution of the cases.
Morales is listed in court documents as a “potential material and eyewitness… likely to be called to testify by either the prosecution or defense,” her office wrote in a news release Tuesday afternoon.
William & Mary law professor Jeffrey Bellin called the move “very unusual.”
“It is the prosecutor’s job to decide whether charges are justified and the voters elect their local Commonwealth Attorney precisely for this purpose,” Bellin wrote in an email. “Unless there is a clear justification for disqualification, this action will further undermine confidence in the justice system at a time when that confidence is critically important.”
A Portsmouth police spokeswoman, Victoria Varnedoe, did not respond to an email asking why Morales was listed as a potential witness.
In a phone interview Tuesday, Morales said she was not at the scene of the June 10 protests. If she is served with a subpoena, Morales said she plans to file a motion to quash it. If the judge does not grant that request, Morales and her office would not be able to prosecute the cases, and a special prosecutor from outside the city would have to be called in.
Morales said a special prosecutor is not accountable to the city because he or she is not elected by Portsmouth residents.
Morales said she couldn’t say whether she would prosecute the cases if she and her office are not blocked from doing so. She said her office has not received any investigative files from Portsmouth police, so she doesn’t have enough information to make a prosecutorial decision. She also said she wants to address the potential conflict of interest — being listed as a possible witness — first to ensure she can act appropriately in the case.
“It’s OK with me to do the difficult work,” Morales said. “I want to do that. That’s what my city elected me to do.”
Morales recused herself in 2017 from the case involving then-City Councilman Mark Whitaker, who was later convicted of forgery. But she has handled other high-profile cases involving city officials or activists, including the prosecution of a Portsmouth officer, Stephen Rankin, who killed an unarmed man in 2015. Morales’ office also moved to drop earlier misdemeanor trespassing charges stemming from the Confederate monument protest against two NAACP leaders who were among those charged by police Monday.
The charges against Lucas, one of the most prominent Democrats in the state and a Black lawmaker who has publicly called for police reforms, were immediately called racist by many fellow Democrats.
Morales, who is likewise Black and a Democrat, has also called for changes in policing. She is one of 11 commonwealth’s attorneys who make up the “Virginia Progressive Prosecutors for Justice,” a group calling for changes including restricting “no-knock” search warrants, expanding prosecutors’ discretionary powers and police accountability measures.
Morales said her office didn’t know charges were coming when police announced them late Monday afternoon.
Police charged 14 people with felony injury to a monument, and eight of them also face a conspiracy charge. Those charged in the cases: Lucas, NAACP President James Boyd and Vice President Louie Gibbs, School Board member LaKeesha “Klu” Atkinson, Public Defender Brenda Spry, assistant public defenders Meredith Cramer and Alexandra Stephens, Amira Bethea, Kimberly Wimbish, Dana Worthington, Lakesha Hicks, Raymond Brothers, Hanah Renae Rivera and Brandon Woodard.
The charges stem from a protest June 10 at the city’s Confederate monument, located at Court and High streets. In the afternoon, demonstrators began spray painting the monument ahead of a Remove the Stain rally that was scheduled for that evening. As people protested, the Portsmouth City Council postponed a decision on moving the monument, a long-standing issue of debate. Council members have since voted to move it.
Several of those charged Monday were present on the day of the protest, but it’s not clear whether any of them are accused of being present hours later, when people beheaded the statues and a man was seriously injured by a falling piece of the structure. Lucas had left hours earlier.
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Lucas was in Richmond Tuesday for the start of the General Assembly’s special session, during which they plan to address criminal justice reform.
In a written statement Tuesday, the Virginia State Conference of the NAACP said it was “deeply troubled” by the charges.
“The actions of the Portsmouth City Police Department further the necessity of meaningful reform,” Robert N. Barnette Jr., state conference president, said in the statement. “These charges demonstrate the latest pattern of injustice which shows that African Americans are subjected to a totally different justice system.”
When charging someone with a crime, police can go before a magistrate to establish probable cause and obtain warrants, as they did in this case.
Police also can bring their investigative file to prosecutors, who decide whether to present evidence to a grand jury and seek an indictment. Morales said Portsmouth police did not present her office with any investigative files. Portsmouth prosecutors don’t initiate charges on their own because they don’t have an “intake unit,” according to the office.
Staff writer Ana Ley contributed to this report.
Margaret Matray, 757-222-5216, margaret.matray@pilotonline.com