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PORTSMOUTH — A judge dismissed charges Monday against state Sen. Louise Lucas and all others charged in a June protest during which the city’s Confederate monument was vandalized.
Commonwealth’s Attorney Stephanie Morales and a team of prosecutors said that after reviewing the police investigation, they determined there was not enough evidence to prove the elements of the felony crimes, including intent and the dollar amount of damage each defendant was accused of causing.
Morales said the investigator in the case, Sgt. Kevin McGee, did not start investigating the value of damage until October, roughly a month and a half after he went before a magistrate to take out the charges. She said Portsmouth Police Chief Angela Greene wrote in a memo summarizing the event that protesters who spray painted the monument early that afternoon assumed they were acting without criminal intent.
“There is no proper evidence that the alleged actions of those charged … rise to the level of felony destruction of property or conspiracy,” prosecutors wrote in court documents.
Before dismissing the felony charges, Judge Claire Cardwell said Portsmouth police went around prosecutors to file charges and then sought to prevent Morales from prosecuting the case by trying to subpoena her as a witness.
Cardwell — a Richmond judge assigned to hear the case after Portsmouth judges recused themselves — said this was “of concern” to her and raised the prospect that something other than public safety was driving law enforcement’s efforts to prosecute the case.
Lucas and some of the others charged, as well as many Democratic officials and Black activists, have called the charges racist. They suggested the charges against Lucas, one of the state’s most prominent Black officials, were a thinly veiled attempt to intimidate someone who has pushed for police reform.
Cardwell said it was well within the prosecutors' discretion to ask for a dismissal, and the judge dismissed all charges with prejudice, meaning they cannot come back.
Much fallout continues in the wake of the case. As the court hearing unfolded Monday, Portsmouth Police Chief Angela Greene was fired, two months after she was placed on leave by then-City Manager Lydia Pettis Patton.
[ Previous coverage: Portsmouth Police Chief Angela Greene fired, plans to sue ]
Patton resigned in early September under threat of being fired by the City Council. The council did fire City Attorney Solomon Ashby.
In an email Monday evening, Portsmouth police spokeswoman Victoria Varnedoe said the department complied with the judge’s orders and the prosecutors' requests.
“... We fully respect the judicial process,” she wrote.
The felony charges against Lucas and 18 others — including local NAACP leaders, several public defenders and a School Board member — stem from a June 10 protest at the city’s Confederate monument in which demonstrators vandalized the statues.
After Monday’s hearing, those charged — collectively called the “Portsmouth 19” — and their lawyers gathered in front of the courthouse. Some held hands. Don Scott, one of the attorneys who represented Lucas, said the justice system had prevailed.
“Today was a victory,” said Scott, who also serves as a state delegate. “This is a day for the city of Portsmouth to move forward. To move forward together.”
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, and others will now “be able to go back and continue with their lives after this, what we consider to be a very malicious prosecution” by police, Scott said.
Lucas said she was grateful for the outcome. She said police officers involved in the case had made a “mockery of the justice system” by bringing the charges, which she called “bogus.”
“This gives people in the community hope that when they come to these courtrooms that they will be treated in a fair and just manner, even though you may have a rogue police department who intends to criminalize the justice system against people like me. This gives people hope,” Lucas said.
Scott said charges brought in the Confederate monument case were “nothing new.”
“Anytime leadership, especially people of color, start standing up, there are people who attempt to use the criminal justice system as a way to quell our voices,” Scott said. “We’re used to this fight, and we’re able to step up and meet that challenge.”
Many of those charged were Black.
Portsmouth’s police chief announced the charges in August, two months after the protest, to the surprise of the city manager and the city’s elected prosecutor, neither of whom knew charges were coming.
Activists and Virginia Democrats questioned the timing of the charges, which came a day before a General Assembly special session. Lucas, the president pro tempore of the Virginia Senate, has been an outspoken advocate for police reform.
After Monday’s hearing, Lucas and Scott said they were hopeful the Virginia attorney general would investigate the Portsmouth Police Department, referring to last year’s ouster of former Police Chief Tonya Chapman, who raised allegations of systemic racism within the department.
During the special session, the General Assembly passed a bill sponsored by Lucas that gives the attorney general authority to conduct a “patterns and practice” investigation of law enforcement agencies.
Several state Democrats voiced support for Lucas following Monday’s hearing, including Lt. Gov. Justin Fairfax and former Gov. Terry McAuliffe.
“Their opposition to the Portsmouth Confederate monument is exactly what the late John Lewis would have called ‘good trouble,’” McAuliffe said in a written statement. “All Virginians should be relieved today as justice was finally served. We must continue to fight for others in our justice system who have been wrongly charged.”
In court documents, prosecutors Teressa Murrell, Shaniqua Clark Nelson, Ryan Marion and CaShea Coleman outlined at length their reasons for asking the judge to dismiss the charges.
The charges weren’t supported by probable cause, and there was no evidence that those charged “intentionally came together to commit an actual felony,” according to prosecutors.
The probable cause summary filed by police “appears to be riddled with inaccuracies and conclusions drawn based upon the opinions of the investigating officers and not based solely on or even supported by evidence,” the prosecutors wrote.
In order to introduce video and photographs as evidence in court, prosecutors must be able to authenticate them. Officers can testify and authenticate police body camera footage, but the same isn’t true for other evidence collected in the case — such as screen shots of social media pages submitted by private citizens to police, prosecutors wrote.
The lawyers said some of those charged were identified solely through a combination of Facebook profile research, LexisNexis, DMV and prior arrest records, a law enforcement information sharing service and “an anonymous Crime Line caller.”
“It is clear that the detectives of the Portsmouth Police Department do not have personal knowledge necessary to identify the individuals listed above, and seen in the various video evidence and photographs, as the individuals that have been charged and will be present in court,” prosecutors wrote.
They also argued that prosecuting the charges would violate the due process rights of those charged. Law enforcement officials can’t punish conduct that “they endorsed, either expressly or impliedly,” prosecutors wrote.
“A number of city officials had given permission both expressly, as well as impliedly by the conduct of all governmental officials who were present on the scene at the time the incident began,” prosecutors wrote. “Additionally, a number of officers with the Portsmouth Police Department remained present on scene while observing various persons inflict damage on the monument and failed to intervene for several hours. It was only at the point where an injury was sustained that law enforcement intervened.”
Many questions still remain about the police investigation.
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Days after charges were announced, Pettis Patton told council members in an email that city police were supposed to drop the investigation because of a conflict of interest, although she did not say what that alleged conflict was.
Greene has said she tried to have an outside law enforcement agency investigate because of a possible conflict involving “elected city officials” who were at the protest. Greene said it was ultimately up to her department to investigate after “all efforts were exhausted” to have an outside group do it. She has said there weren’t any conflicts of interest for her department.
Roughly 24 hours after the protest, McGee — who would later file charges in the case — emailed council members and the city manager condemning Lucas and others and defending the police chief. McGee, who didn’t respond to an inquiry from The Virginian-Pilot, told HuffPost he wasn’t involved in the investigation when he sent the email and that he and the department could investigate “without bias and only present the facts as they are found.”
In the afternoon of June 10, protesters spray painted the city’s Confederate monument ahead of a rally that was planned for that night. While the protest continued, the City Council postponed a vote on moving the monument, a long-debated issue. Council members have since voted to move it, and work crews have dismantled and removed the structure.
Later that night, hours after Lucas left, protesters beheaded four statues of Confederate military personnel attached to the monument, and one fell on a man, seriously injuring him.
When she announced the charges, Greene cited the man’s injuries as a reason for bringing charges in the case. However, no one was charged with injuring the man.
Margaret Matray, 757-222-5216, margaret.matray@pilotonline.com