Jason Kessler claimed that on January 22, 2017, as he was collecting signature on a petition on the Charlottesville Downtown Mall, he asked Jay Taylor to sign, and Taylor then attacked him. On March 3, 2017, after surveillance video was discovered that proved that Taylor did not assault Kessler, and that Kessler in fact assaulted Taylor, the charge against Taylor was dropped. In the meantime, Taylor swore out an assault warrant against Kessler, and Kessler wound up pleading “guilty” to that assault.
In October, 2017, the Albemarle Commonwealth’s Attorney, Robert N. Tracci, asked the grand jury to indict Kessler for perjury, alleging that the video showed that Kessler had willfully lied when he swore out the arrest warrant.
That case went to trial in Albemarle Circuit Court on March 20, 2018. Defense lawyer Michael Hallahan had noticed that the Commonwealth had never asked any witness where this crime had taken place, so he asked the Court to dismiss the case for failing to establish the venue (where the crime was committed). During a break, Judge Cheryl Higgins listened to the tape of the testimony again, and agreed that the Commonwealth had not proven venue. She therefore dismissed the case.
Judge Higgins was unquestionably correct that the evidence presented by the Commonwealth was silent on the question of where the affidavit was signed. She therefore dismissed the case against Kessler.
On Monday, April 2, Robert Tracci filed a motion asking for the court to reconsider its ruling and set it down for a new trial. That is pretty standard for defense lawyers, but it is almost unheard-of for the prosecution to ask for a new trial.
I’ll discuss later whether the prosecution can get a new trial, given the judge’s decision to strike the government’s evidence and the Double Jeopardy Clause (I am pretty sure that the court will conclude that she has no power to grant a new trial in such a case.)
But first, let’s look at the venue requirement.
One of the basic principles of Virginia criminal law is that a crime must ordinarily be tried by a jury chosen from that county or city. So prosecutors become ingrained with the necessity to prove venue — they usually ask the first witness some variant of “and where this happened.” The witness says, “Albemarle County,” and then venue is proven. Venue is not an element of the offense, which means that the government doesn’t have to prove it beyond a reasonable doubt to the jury. But they do have to present some evidence on the point — venue “must affirmatively appear on the face of the record.” Shelton v. Sydnor, 126 Va. 625, 630, 102 S.E. 83, 85 (1920); Owusu v. Com., 11 Va. App. 671, 673, 401 S.E.2d 431, 432 (1991). That requirement may be met with real testimony from a witness (the usual case), but if there is no testimony on venue, the Commonwealth has the right to reopen the case to prove venue, or to ask the judge to take “judicial notice” of the fact that a particular place is in Albemarle County. Mr. Tracci did not ask to reopen, but did ask Judge Higgins to take judicial notice that the Magistrate’s Office is in Albemarle County. Judge Higgins ruled that she could NOT take judicial notice that the Magistrate’s Office is in Albemarle County, because there had not even been any testimony that the allegedly false affidavit had been executed at the Magisrate’s Office. The record was silent, Judge Higgins ruled, on the question of where this happened, so if she took judicial notice of the fact that the Magistrate’s Office was in Albemarle County, but there had been no testimony that the affidavit was prepared and/or submitted at the Magistrate’s Office, that wouldn’t help the prosecution’s case.
Pretty much every prosecutor makes the mistake — usually only once — of failing to prove venue at some point, but for most prosecutors, that happens in a low-profile case in General District Court rather than in a high-profile case in Circuit Court. When Mr. Tracci took office as Commonwealth’s Attorney, he had basically no trial experience, so he made that rookie mistake out in a very public place.
WVIR (NBC29) has asked me whether there is any recourse for the prosecution, and my off-the-cuff opinion was that there was NO recourse. But on Monday, April 2, the prosecution filed a motion asking the judge to reverse herself, and arguing that a new trial would not violate the Double Jeopardy Clause. We’ll talk about that motion in the next blog post.
