Loudoun Judge May Set Legal Precedent After Hearing on Clearing Dead Man's Name
Friday, September 11, 2009
The incest conviction of a former civil rights leader will not be erased, a Loudoun County judge ruled Thursday, setting the stage for a new legal precedent in Virginia.
The ruling defied years of precedent in federal courts that demand the dismissal of charges when a defendant dies and his case is on appeal. That's what happened with the conviction of Enron executive Kenneth Lay in 2006.
The sensational case against James L. Bevel, who was convicted last year of having sex with a daughter when she was a teenager and sentenced to 15 years in prison, was on appeal when Bevel, 71, died in December of pancreatic cancer. Bevel's attorney, Deputy Loudoun Public Defender Bonnie H. Hoffman, then asked the appeals court for an "abatement," in which the case is completely dismissed.
Virginia's attorney general, whose office handles all criminal appeals, did not file a response, Loudoun Circuit Court Judge Burke F. McCahill said. So the Virginia Court of Appeals last month ordered McCahill to "hold a hearing and to abate the prosecution ab initio [from the beginning], unless good cause is shown by the Commonwealth not to do so."
Loudoun prosecutors latched on to the phrase "good cause" and brought in two of Bevel's victims to remind McCahill of the gravity of the case.
Both sides agreed that Virginia case law is silent on what to do when a defendant dies while the case is on appeal, and federal precedent doesn't necessarily control state law. They also agreed that the appeals court had provided no guidance on what, exactly, "good cause" means.
So Aaralyn Mills, who testified last year that her father had sex with her when she was 14 or 15, took the stand again, reminding the judge that it was difficult to testify publicly, especially against a man widely respected for his work alongside the Rev. Martin Luther King Jr. in the 1960s.
"To have it just thrown out, like it never happened," Mills said, "it undermines that effort. . . . The conviction was affirming. It brought closure. Having it brought to society, and society saying, 'No, that's unacceptable.' It was like, "Okay, we're not the crazy ones.' "
Chevara Orrin, another of Bevel's 16 children who said she was sexually abused by him, said the family spent years trying to confront and resolve the issue with their father without going to the authorities. Throwing out the case, Orrin said, "would invalidate all of our efforts. It would feel like it was wiped away, like it never happened."
Hoffman pointed out that numerous media accounts and public records make note of Bevel's incest conviction, and she submitted a 10-page list of Internet sites mentioning it. "The concept of abatement doesn't disappear history," Hoffman said. "The obituaries are not going to be rewritten. The photographs are not going to disappear."
Deputy Loudoun Commonwealth's Attorney Nicole Wittman said, "What kind of system of justice is it when the rights of someone who is dead supersede the rights of someone who is alive?" She wondered whether the next step, if the case were abated, would be to expunge Bevel's record completely.
Wittman theorized that the appeals court sent the case back to Loudoun to show that "Virginia's going to be different. We're not going to follow some arcane rule. We're not going to ignore victims' rights. They are carving out this 'good cause' exception, that 'If your honor finds good cause, then you don't have to follow that rule.' "
McCahill noted that a trial conviction is a final judgment and that a successful appeal cannot be presumed. He called abatement a "judicial sleight of hand which, in my view, at best ignores reality and at worst revictimizes the victims by judicial declaration. The verdict of the fact-finder [the jury] must be respected."
The judge said Mills showed "a good deal of courage" for testifying against her father, adding that "the offense was particularly heinous" and that Bevel showed a "lack of remorse."
Hoffman said she didn't know whether she will appeal the ruling without a client. She asked McCahill to appoint a stand-in for Bevel, but the judge declined.
Wittman said, "I think there's a real chance for Virginia to take the lead in this unique area of law by setting out a good-cause exception and the ability to examine these cases one at a time."