Judge Criticized for Undercutting Jury Sentence

Prosecutor Says Court Went Against 'Wishes of the Community' in Rape and Abduction Conviction

Loudoun County's chief prosecutor criticized a Loudoun Circuit Court judge last week for reducing the life sentence that a jury recommended for a man convicted of rape and abduction.

In a statement issued a day after the reduced sentence was handed down, Commonwealth's Attorney James E. Plowman accused Chief Judge Burke F. McCahill of disregarding "the very wishes of the community" by imposing a lesser punishment.

He also said it represented a disturbing pattern. During his first 16 months in office -- January 2004 through April 2005 -- Loudoun judges scaled back jury sentences in 10 of 28 felony cases, Plowman said in an interview. He said that although data from other counties were not immediately available, he thought the percentage of reduced sentences in Loudoun was unusually high compared with neighboring jurisdictions.

"I feel like I represent the people here in this matter, and I don't think they would be too happy with their wishes being rolled back 35 percent of the time," Plowman said.

At issue is the case of a Benjamin Milburn, 33, who was convicted in June of a rape and kidnapping in 2004. A jury recommended a sentence of life plus 30 years. On Tuesday, McCahill decided to reduce the life sentence to 20 years and eight months, and the 30-year sentence to 10 years, Plowman said.

Under Virginia law, judges can reduce a jury's sentence but cannot increase it.

McCahill did not return a reporter's phone call last week, which is not unusual for sitting judges. A transcript of his comments at Tuesday's hearing was not available last week, according to the court clerk's office and the court's private transcribing service.

Nicole Wittmann, the prosecutor in the case, said the judge explained in court that the revised sentence seemed more proportional to the crime. She added that she "respectfully disagreed."

The jury's sentence "seemed appropriate to me because . . . there was a significant amount of violence involved," Wittmann said.

But Milburn's defense attorney, John Francis, said that the jury's sentence was inordinately harsh and that McCahill's justification for reducing it, which he conveyed in comments that lasted 20 to 30 minutes, was well thought out.

"He is very thorough," Francis said of the judge. "He takes the role of reviewing these sentences very seriously."

The jury was told that Milburn had five prior felony convictions, including three burglaries, embezzlement and an assault on a police officer with a deadly weapon.