But a lawyer for Orndoff and the Loudoun County prosecutor’s office said multiple witnesses said Orndoff did not appear impaired but was anxious and agitated because she was facing the man accused of punching her in the face and was testifying on emotionally charged matters.
Attorney Thomas K. Plofchan has filed a motion to vacate the contempt judgment, and the office of Loudoun County Commonwealth’s Attorney Buta Biberaj is supporting that effort. Orndoff spent two days in the Loudoun County jail before being released on bond and was required to submit to a drug test.
A brief filed by Biberaj’s office asserted that Fisher violated Orndoff’s due-process rights, Miranda rights, conducted an illegal investigation, and violated Virginia law requiring that crime victims be treated with dignity and respect.
“The events were concerning to us as to the message it sends to victims,” Biberaj said. “It is nearly impossible to get domestic violence victims to testify already. This event may chill them from using the court process even further.”
Fisher declined to comment, saying judicial ethics rules preclude him from giving interviews about cases.
Orndoff, 33, of Fredericksburg, Va., accused her former partner, James Paige Phillips, of punching her in the face twice in July 2020, causing her nose to bleed, as the pair were driving in Loudoun County, according to a criminal complaint.
Phillips was charged with felony domestic assault and battery. What was supposed to be a two-day jury trial began Sept. 7, according to court records. Phillips pleaded not guilty to the charges. His public defender declined to comment.
Plofchan said Orndoff had smoked marijuana at home roughly around 9 or 10 a.m. before going to the courthouse on Sept. 7 for the trial.
Two detectives who interacted with Orndoff around 1 p.m. said she did not appear intoxicated, according to the motion filed by Biberaj’s office. The detectives said Orndoff was animated, nervous and jittery, as she had appeared on previous occasions.
Orndoff was called to testify and spent 1½ hours on the stand, according to the motion filed by Biberaj’s office. Orndoff did not slur her words, fall asleep or exhibit other signs of drug use, the prosecutor’s office contended.
A motion by Phillips’s public defender asserted that Orndoff’s answers during the testimony were “circuitous, contradictory and nonresponsive” and that she had failed to abide by an order that barred her from discussing alleged previous bad acts committed by the defendant.
Orndoff was facing a difficult cross-examination that touched on issues of infidelity and drug addiction when Fisher halted the proceeding and then called an afternoon recess around 2:40 p.m.
While Orndoff was still on the stand, Fisher told her she appeared to be under the influence of narcotics and asked her whether she had taken or used any intoxicant, according to an audio recording of the trial.
Orndoff eventually answered that she had recently come off all her medications, including antidepressants and mood stabilizers, and that this was affecting her, according to the recording. Fisher again pressed Orndoff on the topic of drug use.
“I mean, honestly, I smoke marijuana, and that’s what I did,” Orndoff said on the recording. “You can search my car.”
Fisher continued to question Orndoff about her marijuana use, before holding her in contempt and sentencing her to 10 days in the Loudoun jail, according to court filings. Sheriff’s deputies removed Orndoff from the stand and took her into custody.
“What am I supposed to do?” Orndoff can be heard saying as she sobs on a recording of the trial. “I don’t understand.”
The court briefly recessed.
When it reconvened, Fisher declared a mistrial in Phillips’s case. Prosecutors tried unsuccessfully to get Fisher to reconsider the contempt finding and allow them to present evidence that Orndoff was not intoxicated. They also asserted that she was entitled to legal counsel in the contempt matter.
“The witness was incoherent, her body language was such, she was rocking forward in her chair, rocking back. When I asked her a question, she almost tipped her chair over. She clearly manifested signs of intoxication,” Fisher said on the audio recording. “She admitted to smoking marijuana prior to coming over here.”
Fisher held that Orndoff was in “summary contempt of court order” by “testifying while voluntarily intoxicated,” according to court records filed later. She was required to submit to a blood draw to be tested for drugs.
It has been legal to possess, grow and consume small amounts of marijuana in Virginia since July. Fisher told the attorneys in the courtroom that it was problematic that Orndoff had appeared to be intoxicated, not that she had smoked marijuana.
Biberaj’s office contends that Fisher’s treatment of Orndoff was deeply flawed. The prosecutors say Orndoff should have been advised of her Miranda rights and right to counsel. In their view, Fisher did not establish that Orndoff was actually intoxicated at the time of her testimony and had no authority to conduct an investigation.
Plofchan said he was able to get bond for his client on Sept. 9, but the experience has been devastating for her.
Through Plofchan, Orndoff declined to be interviewed. But in a statement, she said she had “learned that it does no good to report domestic abuse because the system and the courts appear to have no real interest in protecting victims and punishing abusers. The judge has sent me a clear message.”
A hearing is set in Loudoun Circuit Court on Thursday on the motion to vacate the contempt finding. Biberaj’s office also has filed a motion opposing the court’s declaration of a mistrial.
Fisher has been a circuit court judge in Loudoun County since 2019. He previously was the commonwealth’s attorney in Fauquier County and served as the head of the county’s Republican Party.
Fisher previously has held people in contempt of court, among them a divorce attorney with whom the judge clashed during a court proceeding in 2020.