A civil lawsuit against the Arlington County sheriff has spun off into a possible criminal perjury investigation after three deputies failed to appear for the sheriff's trial, and a judge found that another deputy's explanation for the absences was "probably intentionally false."
The lawsuit was filed last year by a federal Treasury agent, Dennis W. Martel, against Arlington Sheriff Beth Arthur. Martel was working in the Treasury Department's inspector general for tax administration office in Falls Church in October 2000 when a series of events rapidly unfolded and led to the lawsuit.
On Oct. 24, 2000, according to court records, Arlington deputies drove a prisoner to a Falls Church dentist in the same building where Martel worked. The prisoner, Robert Kennedy Black, who was being held on multiple felony charges, was HIV-positive, federal records show.
While in the dentist's building, Black twice asked to use the bathroom, and on the second trip he escaped from Deputy Darryl Washington. Black fled down a stairwell, with Washington close behind, and emerged on the second floor, running into the lobby of Martel's Treasury office, court records show.
Martel heard the struggle between Black and Washington and rushed to help. In the chaos, Black bit Martel on the forearm, breaking the skin, then grabbed the deputy's pepper spray and sprayed Martel in the face, court records state. Black was eventually subdued and charged with assaulting a federal agent with a deadly weapon because he was HIV-positive. Black pleaded guilty in federal court in Alexandria in March and was sentenced to eight years in prison.
Martel, now 30, went through repeated testing and apparently did not contract the virus that causes AIDS. In his lawsuit, he claimed that he went through months of mental anguish and fear that he would not live long enough to care for his young daughter, whom he was raising as a single parent. Court documents indicate his medical bills and lost wages totaled less than $10,000.
Arlington responded to the suit by arguing that Arthur had sovereign immunity from a lawsuit because her deputies were merely doing their duty. The county also argued that Martel had caused his own injuries by negligently jumping into the fracas between Black and the deputy, thereby assuming his own risk.
The suit proceeded quietly toward a December trial date in Fairfax County, where the biting incident occurred. The only significant pretrial dispute occurred over Black's medical records, which Arlington resisted handing over and which a Fairfax judge ordered the county to provide under seal.
But when the trial began Dec. 10, the deputies subpoenaed by Martel's attorney, Rodney G. Leffler, did not show up. Jack L. Gould, the attorney representing Arlington County, claimed they had not been subpoenaed. The fight was on.
Fairfax Circuit Court Judge Arthur B. Vieregg Jr. stopped the trial and ordered Arthur to bring in the three deputies Leffler sought for testimony. Arthur also brought Officer S.E. Brooks, whom the returned subpoenas listed as the person who had accepted the subpoenas for the Sheriff's Office.
A process server testified that he handed the subpoenas to an Arlington sheriff's employee, who gave them to Brooks. The deputies testified that Brooks never told them he had received the subpoenas, which court records indicate were served on Nov. 26. Brooks testified that someone handed him the subpoenas and that "he didn't know what they were because he did not read them," according to a court transcript.
Vieregg was incensed. "I've heard testimony before but seldom testimony that was less believable than this gentleman," Vieregg said.
Vieregg added: "I find that Officer Brooks's testimony was false. Very probably intentionally false, or at least reckless, a circumstance that is suggested furthermore by all of the circumstances of this case, in that his testimony happens to favor his employer."
Then Vieregg ordered that a transcript of Brooks's testimony "be prepared and furnished to the Commonwealth's Attorney for whatever action is deemed pertinent."
Leffler said the judge's move to send a transcript to Fairfax Commonwealth Attorney Robert F. Horan Jr. was intended to launch a perjury investigation of Brooks. Horan said that he had not yet received a transcript, but that he has received similar requests from judges over the years to determine whether a witness has lied under oath. Horan said he would forward the case to the Fairfax police internal affairs unit, if he receives it, and have detectives investigate. He said his office has filed perjury charges arising out of judges' requests in the past.
But Gould said he did not think things would get that far. "The elements of perjury are not present in this situation, and I take the judge's comments to be an expression of frustration by the court," he said. He said he did not think there would be a perjury investigation.
Arthur declined to comment, and a sheriff's spokesman said Brooks was not available to comment.
Vieregg declared a mistrial, saying that "the conduct of the Sheriff's Office, whether it be carelessness or more, totally disrupted the plaintiff's [Martel's] case in terms of his attempt to call these witnesses." Arlington also failed to provide Black's medical records as ordered, and Vieregg said that could be an additional basis for a mistrial. He ordered Leffler to file a motion seeking to recover the costs of having to try the case a second time.
"I think it is a sad day when a sheriff is a party" to a lawsuit, Vieregg told Arthur, "and those subpoenas are accepted by her personnel . . . and then at this trial attempt to maintain that there was ineffective service on those subordinates."
Leffler said he hoped to prove ultimately that the Arlington Sheriff's Office had a systemic problem with safely transporting its prisoners. "I will prove the sheriff's culpability. Mr. Martel deserved to have the jury hear his case, and these deputies thwarted that."
Gould disagreed. "That's an irresponsible statement, in my view, particularly because Mr. Leffler knows that the judge found that the three deputies had not received subpoenas and had done nothing wrong by not appearing," Gould said.
Vieregg said that he did not necessarily disbelieve the deputies, including Washington, who said they did not receive their subpoenas. But he said earlier subpoenas, served the same way to Arlington, had resulted in sheriff's deputies appearing for court as summoned.
Gould agreed with Vieregg in calling the case sad. "It's a sad day when one law enforcement officer sues another," Gould said. "He's fine," he said, referring to Martel. "He's healthy. It's a money issue."
Gould said he would present an expert at trial to testify that HIV cannot be transmitted by a shallow bite.
Vieregg rescheduled the trial for late February.