Judge Criticized for Undercutting Jury Sentence
Prosecutor Says Court Went Against 'Wishes of the Community' in Rape and Abduction Conviction

By Sandhya Somashekhar
Washington Post Staff Writer
Sunday, October 8, 2006

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.

The rape and abduction occurred Sept. 13, 2004, the day Milburn was released from prison after serving two years on the embezzlement charges, prosecutors said.

According to prosecutors, the victim picked Milburn up from the prison. An argument erupted, and he beat the victim and forced her to go with him to his brother's house in the District, where he tried to have sex with her. When his brother burst into the room, Milburn left the house, Wittmann said. She said he then took the victim to his Ashburn apartment, put a razor blade to her throat and raped her.

The Washington Post is not naming the woman because of its policy not to identify alleged rape victims.

Francis said he and his client take issue with the prosecution's version of what happened, but he declined to elaborate, saying he did not want to reveal details of an appeal he plans to file.

Commonwealth's attorneys from elsewhere in the state who were interviewed last week said they do not keep track of how often judges roll back jury's recommended sentences. But they said it is rare.

"It certainly doesn't happen very often," said Theo Stamos, chief deputy commonwealth's attorney for Arlington County. "Judges respect juries' decisions unless they are wildly off, which they don't tend to be."

Virginia law says that juries "fix" the sentences, a word that suggests their decision is more than simply advice to the judge, said John L. Costello, a law professor at George Mason University and author of "Virginia Criminal Law and Procedure," a guide to criminal law in the state of Virginia.

" 'Fix' means that's it. It's done," Costello said, although he added that a judge holds the power to reduce a sentence should the judge choose to show leniency.

Plowman, a Republican and a former Fairfax County prosecutor, was elected in 2004, defeating incumbent Robert D. Anderson. During his campaign, Plowman promised to bring more cases to trial and work more closely with law enforcement than his predecessor. Plowman said last week that he did not have Loudoun sentencing figures more recent than those for the first 16 months of his term.

McCahill has served on the Circuit Court for Loudoun, Fauquier and Rappahannock counties since 2000 and has an eight-year term. He spent almost 20 years as a lawyer in private practice before being appointed to the District Court's Juvenile and Domestic Relations Court in 1998, a position he held until securing his current position.