But when the defendant appealed to circuit court, Fairfax County prosecutors again declined to participate and didn’t notify Karau of a new trial date in January, according to court records. When Karau failed to show for the proceeding, defense attorneys moved to have the charge dismissed.
Fairfax County Circuit Court Judge Randy I. Bellows rejected that motion in a new opinion, writing that the office of Commonwealth’s Attorney Steve Descano failed in its legal obligation to keep Karau abreast of court proceedings. Bellows ordered prosecutors to inform Karau of any future hearings.
Karau declined to comment, but the legal opinion echoes critiques of advocates, police and some attorneys who worry Descano’s move to withdraw from some misdemeanor cases his predecessor handled could shortchange some victims.
“The Virginia Constitution states that ‘officers of the courts’ will accord victims ‘fairness, dignity and respect,’ ” Bellows wrote in his opinion. “There would be nothing ‘fair’ in dismissing a case for the nonappearance of a victim when the victim did not receive the advance notice of the trial date to which he was legally entitled.”
Descano’s office said in a filing it tried to notify Karau but did not have his contact information. Bellows pointed out in his opinion that it was readily available from police and in the case file. Descano’s office also argued it had no legal obligation to assist Karau because it declined to participate in the case.
Descano said in a statement he would like to handle all misdemeanor cases, but he simply doesn’t have the staffing to do so properly. His office has said it needs to focus its resources on felonies and more serious misdemeanors such as domestic violence, sexual battery and drunk driving. The new policy went into effect over the summer.
“Having one of the lowest per-capita funding levels of all the state’s Commonwealth’s Attorneys’ offices has made it impossible for this office to meet the fundamental ethical obligations associated with participation in all misdemeanor cases, but I have always maintained my desire to handle these cases should the County provide the resources necessary,” Descano said in his statement.
At a hearing in September, Descano told the Board of Supervisors that the prosecutor’s office had been underfunded for years and that it was affecting his ability to effectively do his job, especially as prosecutors were facing the time-consuming new commitment of reviewing body-worn camera footage from police. The board approved 15 new positions tied to the rollout of the cameras.
Descano’s office also pointed out that Virginia law does not require county prosecutors to handle misdemeanor cases and said commonwealth’s attorneys in many jurisdictions don’t. He says his office is still doing more than required by law.
Karau’s case began one afternoon in August, when he pulled into a Chick-fil-A parking lot in the Backlick Shopping Center in Springfield, according to a police report. Another man, Sherrell Chastain, told a Fairfax County police officer that Karau had cut in line at the drive-through and that he had a confrontation with Karau.
The police officer wrote in the report that Karau admitted to cutting in line but claimed Chastain repeatedly approached his vehicle, including one time when Chastain told him he believed in his Second Amendment rights, pounded his hand on his hip and slammed his hand on Karau’s car. Karau told police he thought he was being threatened with a gun.
Chastain told the officer he did not threaten Karau with a weapon but that he did have a concealed-carry permit and had a pistol on his person at the time of the incident, according to the police report.
The officer did not charge either man, but later that day Karau went before a Fairfax County magistrate and swore out a misdemeanor assault charge against Chastain. At a December trial, Chastain was found guilty of assault and sentenced to five days in jail. Chastain and his attorney did not respond to multiple requests for comment by phone and email.
After filing the appeal, Chastain’s attorney moved to have the charge dismissed at the January retrial in circuit court because Karau did not show up to testify. Bellows told Chastain’s attorney and Descano’s office to provide legal briefs on whether he could dismiss the case under the unusual circumstances.
Correction: An earlier version of this story incorrectly reported the Chick-fil-A's location in Springfield. It is located in Backlick Shopping Center, not Backlick Plaza.