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Portsmouth — A judge ruled Monday that Portsmouth police cannot subpoena the city’s elected prosecutor as a witness in the criminal case stemming from a protest and vandalism at the downtown Confederate monument.
The ruling means Commonwealth’s Attorney Stephanie Morales can handle the case as long as she doesn’t find during her own review of the evidence that there is a conflict of interest.
Had the court ruled Morales could be called as a witness, it would likely have forced her entire office to recuse itself, leading to the appointment of a special prosecutor.
Morales was listed in court documents by a Portsmouth police detective as a “potential material and eyewitness… likely to be called to testify by either the prosecution or defense,” the prosecutor’s office said. A William & Mary law professor called the move “very unusual.”
Morales told The Virginian-Pilot she was not at the scene of the protests or vandalism June 10. She had asked a judge to stop the subpoena from being issued.
[ Previous coverage: Portsmouth prosecutor fights effort to subpoena her in Confederate monument case ]
The felony charges police announced Aug. 17, including against veteran Democratic state Sen. Louise Lucas, NAACP officials, several public defenders and a city School Board member, led to a firestorm of criticism from elected officials and advocates. Lucas, who is Black, has been an outspoken proponent of police reform, and allies of hers called the charges — which came a day before a General Assembly special session — a thinly veiled attempt to intimidate her.
In all, 19 people have been charged.
Since then, Police Chief Angela Greene has been — at least temporarily — removed from her post. City Manager Lydia Pettis Patton resigned under apparent threat of being fired by the City Council. And the council fired City Attorney Solomon Ashby.
At Monday’s court hearing, Morales' lawyer, Edward J. Ungvarsky, said police had shared no information with her about why she was being subpoenaed, and she wasn’t present for the protest.
“She wasn’t there,” he said.
He also argued that proper procedure for subpoenaing a lawyer was not followed. In Virginia, police officers can’t subpoena lawyers. An attorney has to do it, notice must be given and a Circuit Court judge has to hold a hearing before the subpoena can be made, Ungvarsky said.
Claire Cardwell, a General District Court Judge from Richmond, said it’s the prosecutor’s job to determine if she should be disqualified and remove herself from the case. She said it was appropriate to grant Morales' request and ordered that the subpoena not be issued. She also ordered evidence in the case be turned over to Morales' office.
Cardwell — who was appointed by the state Supreme Court to hear the cases after Portsmouth’s General District judges recused themselves — noted police were seeking to subpoena Morales only in Lucas' case.
Also Monday, Cardwell ruled that evidence in the cases must be preserved. This came at the request of Doug Ramseur, an attorney for one of the public defenders charged, and Don Scott, one of Lucas' lawyers.
Ramseur asked for the preservation of evidence, documents and communication from a number of agencies, including local and state police, Sheriff’s Office, the City Council and the offices of the city manager and city attorney.
The lawyers said it was important to know about any issues of bias or whether there was “undue influence” from any outside forces in the case.
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“Politics has been driving much of this prosecution,” Ramseur said.
Morales said she had no objection to preserving evidence in the case.
After the hearing, Scott said outside the courthouse: “This is all politics. The judge saw it for what it was, that the commonwealth’s attorney should never have been subpoenaed in this matter, and she rightfully quashed the subpoena.”
Wearing green T-shirts, a handful of Greene supporters stood outside the courthouse before and after the hearing, at times arguing with supporters of the 19 people charged. A woman shouted: “Recall Lucas now,” and “Support Chief Greene. Reinstate her now.”
The judge on Monday set deadlines for attorneys to file motions and responses, and hearing dates on those motions were set for November. Dates for preliminary hearings have not been set.
Lucas, several NAACP leaders and School Board member Lakeesha “Klu” Atkinson will appear in court Nov. 16. The three public defenders charged are scheduled for a hearing Nov. 23, along with several others. Additional people charged in the case will appear Nov. 30.
Margaret Matray, 757-222-5216, margaret.matray@pilotonline.com