Both John and Lorena Bobbitt were brought up on criminal charges, and the same Virginia prosecutor — Prince William County Commonwealth’s Attorney Paul Ebert — oversaw both cases. (In Virginia, a commonwealth’s attorney is the equivalent of a district attorney, or DA.) John Bobbitt was tried first on charges related to Lorena Bobbitt’s allegation that he raped her on the night she retaliated against him. But the judge barred the jury from hearing testimony that John Bobbitt had abused her. He was acquitted.
Ebert — who just recently announced that he’ll be retiring after more than 50 years as a commonwealth’s attorney — then tried Lorena Bobbitt on charges of malicious wounding, which could have resulted in 20 years in prison and almost certainly would have led to her deportation. She, too, was acquitted after successfully arguing that the abuse she had endured made her temporarily insane at the time she attacked her husband.
The problem is that the documentary paints Ebert as, if not a hero, at least as a sympathetic figure. That’s because just before Lorena Bobbitt’s trial was set to begin, a former customer of the nail salon where Lorena Bobbitt worked called Ebert’s office to describe an interaction the two had on the morning before the infamous penis-cutting. She described bruises on Lorena Bobbitt’s arms and behavior that seemed consistent with someone in crisis. The documentary gives Ebert credit for passing this witness’s name onto Lorena Bobbitt’s defense team, and for putting her in touch with one of the state’s forensic psychologists, who then changed his testimony based on the woman’s story. Viewed against the backdrop of Ebert’s career — more on that in a moment — the act probably does look rather magnanimous. But that’s an awfully low standard. In truth, he merely did what every prosecutor in the United States is obligated to do under the U.S. Constitution.
The documentary then implies that Ebert didn’t really think Lorena Bobbitt (who now uses her maiden name, Gallo) should have been convicted at all — that in putting this witness in touch with the defense, he may have intentionally tanked his own case. (Ebert played coy when he was asked about it all on camera).
But that actually makes him look a lot worse. A prosecutor has enormous discretion in choosing what charges to bring, or whether to bring any charges at all. Ebert could have decided that given her credible allegations of repeated rape, physical abuse and persistent threats, as well as the unlikelihood of her committing a similar act in the future, it wasn’t in the interest of justice to charge her with a crime. If he feared that approach risked endorsing vigilantism, he could also have charged her with a misdemeanor. Instead, he charged her with a serious felony. (Before her trial, he did offer a plea bargain to a lesser felony — but because it was still a felony, it still would have resulted in deportation.)
Lorena Bobbitt’s acquittal was far from a given. To this day, the jury’s foreman says he thinks she was guilty. Fulfilling his ethical duty to turn over exculpatory evidence doesn’t make Ebert a hero. Instead, we should be asking why he pursued a case that could have imprisoned a woman he appears to think didn’t deserved to be convicted.
The Bobbitt documentary is far from the first time Ebert has been cast in the spotlight. Usually, it’s for acts quite a bit more nefarious than fulfilling his Brady obligations. Ebert, for example, has sent more people to death row than any prosecutor in Virginia history. For a while, Prince William County was one of the killingest counties in the country. In what may have been the most high-profile and important case of his career, the trial of “D.C. Sniper” John Allen Muhammad, an appeals court found that Ebert had withheld exculpatory evidence, though it also ruled that his misconduct would not have affected the outcome of the trial. In 2014, Ebert’s office attempted to charge a 17-year-old boy for sending an explicit video of himself to his 15-year-old girlfriend. Ebert’s office sought and — incredibly — obtained a warrant that would have had police apprehend the boy, take him to a hospital, and submit him to an injection to force an erection so that Ebert’s office could match his aroused penis to the penis in the video.
Longtime readers will also know that Ebert prosecuted Ryan Frederick, accused of killing a police officer during a drug raid on his home. In that case, Ebert used a jailhouse “informant” even after “another prosecutor in Virginia stepped forward to inform Frederick’s attorney that [the informant] had a long history of lying and that no local prosecutor trusted him” and he also “sought to exclude video of Frederick’s post-raid interviews at the police station, where a clearly despondent Frederick bursts into tears and vomits upon being told that he had killed a cop.” (Frederick was convicted of voluntary manslaughter and sentenced to 10 years — a relatively light sentence for someone accused of killing a cop. A friend of his told me he was released in 2016.)
And one of the more brazen examples of prosecutor misconduct in recent memory came courtesy of Ebert and his subordinates in the trial of Justin Wolfe. Wolfe had been tried and convicted of hiring a hit man to kill a Northern Virginia man in 2001. Ebert’s office withheld from Wolfe’s defense team an agreement not to seek the death penalty against the man who carried out the killing — Owen Barber — in exchange for Barber’s testimony against Wolfe. They also withheld evidence that Barber had a long-running feud with the victim, that Barber himself had once put out a hit on the victim, and that Barber had told his roommate that he acted alone. Wolfe was convicted and sentenced to death. Barber recanted years later, giving Wolfe new hope. A federal appeals court judge excoriated Ebert’s office, overturned Wolfe’s conviction and ordered the state of Virginia to either drop the charges or retry Wolfe within 120 days. The court wrote that Ebert and his team’s actions were “not only unconstitutional in regards to due process, but abhorrent to the judicial process.” Ebert’s team recused itself after that ruling.
Back in 2011, Ebert was honored with a painted portrait that still hangs in the Prince William County courthouse. When he finally leaves office at this end of this year, he’ll undoubtedly be honored again with tributes and editorials and paeans to his public service. And now he’s memorialized as a near-heroic figure in a popular documentary about a trial that was a pop culture touchstone. That a prosecutor with Ebert’s history would get that sort of treatment for merely fulfilling his constitutional obligation speaks volumes about what we expect from people in Ebert’s position. This is a job that rewards punitiveness, pugnaciousness and truculence. In that environment, even the faintest gesture toward fairness or equity is hard to miss.