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September 17, 2021

Judge jails alleged domestic violence victim for pot use

File Photo/Don Del Rosso
The General Assembly in 2019 appointed James P. Fisher, formerly Fauquier's chief prosecutor, to an eight-year term on the circuit court bench.
She did not admit to doing any illegal activity nor did she admit to being under the influence in the courtroom. There was no slurring of her words, nothing that indicated that she had taken some sort of intoxicant that affected her speech or muscular movement.
— Tom Plofchan, attorney
By Ned Oliver
The Virginia Mercury

A judge in Loudoun County interrupted the testimony of the alleged victim in a felony domestic violence trial last week to question her drug use, sentencing her to 10 days in jail for contempt of court after she said she had smoked marijuana earlier in the day.

She was then “physically removed from the witness stand by multiple deputies,” according to a brief filed by the commonwealth’s attorney’s office, which supports the woman’s motion to vacate the contempt charge lodged by Circuit Court Judge James P. Fisher, Fauquier’s former chief prosecutor.

The woman, who prosecutors say did not appear intoxicated, served two days in jail before she was released on $1,000 bond, according to court records.

“In the middle of a difficult (cross examination), she was detained, interrogated, arrested and removed from the courtroom,” wrote Assistant Commonwealth’s Attorney Elena Ventura, who argued the woman was “not treated with the respect, sensitivity or dignity required by law.”

Marijuana is now legal in Virginia and prosecutors wrote in their brief that their witness was just anxious and nervous during the approximately hour and a half of testimony she provided against her partner, who was found guilty twice before of abusing her. They said Judge Fisher’s inquiry followed “intense and assertive (defense) questioning focused on drug-addiction and infidelity.”

Prosecutors also wrote that Judge Fisher refused to hear from detectives who had interacted with her before the trial, who they said would have testified her “behaviors were consistent with all prior interactions and that she exhibited no signs of intoxication prior to her testimony.”

But the biggest issue, the commonwealth’s attorneys office said, was that Judge Fisher’s actions “may create a chilling effect surrounding victim willingness to testify in cases of domestic violence, an area of law already replete with victims recanting and/or refusing to cooperate, due to the extensive trauma domestic violence victims experience through the cycle of power and control, especially in cases where victims have mental health concerns, as … in the case at bar.”

Judge Fisher, the former commonwealth’s attorney of Fauquier and onetime chair of the county’s Republican committee, was appointed by the General Assembly to an eight-year term in 2019. Efforts to reach his office were unsuccessful and judges in Virginia rarely comment on proceedings.

It is not the first time Judge Fisher has jailed someone in his courtroom for contempt — a step that legal observers say is unusual in Virginia.

Judge Fisher had divorce lawyer Rachel Virk jailed overnight in January 2020 after finding her in contempt of court during a hearing in which she pressed him to clarify a ruling. The Virginia Court of Appeals dismissed her appeal of the charge on a technicality, finding that because the order jailing her was signed by the clerk of court rather than the judge, there was no jurisdiction to contest it. Ms. Virk has since filed a lawsuit against the clerk of court and sheriff, which is still pending.

Under Virginia’s summary contempt statute, a judge can immediately fine someone up to $250 and jail them for a maximum of 10 days for misbehavior, violence, threats of violence or “vile, contemptuous, or insulting language” in court.

In last week’s domestic abuse trial, the witness’ lawyers say her actions did not meet that standard. The Mercury is not identifying her because she is an alleged domestic violence victim and has not given permission to use her name.

“She did not admit to doing any illegal activity nor did she admit to being under the influence in the courtroom,” said Tom Plofchan, a Loudoun attorney who is representing her with Ryan Campbell. “There was no slurring of her words, nothing that indicated that she had taken some sort of intoxicant that affected her speech or muscular movement.”

Mr. Plofchan also questioned the timeline, noting it was an afternoon trial and there was no inquiry as to when in the morning she had used marijuana and how much she had taken.

Both parties also took issue with the way Judge Fisher questioned the witness, noting she was never advised of her constitutional and Miranda rights and that the “independent investigation” he conducted by asking her about her drug use is barred by judicial canon.

A hearing on the motion to vacate the contempt charge is scheduled for next week.

The case has not gone unnoticed by lawmakers from the region, who called Judge Fisher’s decision to jail a domestic abuse victim troubling.

“Just in general when dealing with domestic violence victims, there’s a history of not treating the victim with respect and dignity and we’re supposed to be protecting them first,” said Sen. Jennifer Boysko, a Democrat who represents parts of Loudoun.

Sen. Scott Surovell (D-Fairfax), an attorney, questioned whether the witness would have been treated the same way if she had said she had a beer that morning instead.

“When we passed the marijuana legalization statute, one of the things we tried to do was ensure marijuana would be treated the same as alcohol,” Sen. Surovell said. “I think it’s important going forward that everybody remember that marijuana possession and consumption is now legal.”

The case has also garnered attention from marijuana reform advocates, who called the case emblematic of the stigmatization cannabis users continue to face.

“In 2020, Virginia ended the practice of jailing individuals for using cannabis, and in 2021 made such use explicitly legal for those age 21 and older,” said Jenn Michelle Pedini, executive director of Virginia NORML, the state chapter of the National Organization to Reform Marijuana Laws. “Yet, these changes in code do not facilitate an immediate end to the stigmatization faced by those who choose to consume cannabis, many of whom will continue to be singled out for discrimination by those still wedded to longstanding stereotypes.”
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