Judge's authority at issue in appeal of Norfolk murder conviction

RICHMOND

State Supreme Court justices questioned lawyers closely Tuesday on whether a Norfolk judge had the authority to sit in another city to preside over the capital murder trial of a man accused of killing a police officer.

Thomas A. Porter, 32, was convicted and sentenced to death last year in the killing of Norfolk Officer Stanley Reaves, who was shot in Park Place as he responded to a complaint in October 2005.

Circuit Judge Chuck Griffith ordered that Porter's trial be held in Arlington because of publicity surrounding the case. Jurors there recommended the death penalty, which Griffith imposed during a hearing in Norfolk in July.

Justices first heard Porter's appeal in January, when lawyers argued over whether jurors should have been allowed to consider a lesser charge of second-degree murder and whether heavy courtroom security prejudiced the jury.

The Supreme Court was expected to rule on Porter's appeal in February, just days before Griffith was to face a panel of state legislators to fight for reappointment to his Circuit Court seat. Lawmakers removed Griffith's name for consideration after hearing complaints about his courtroom demeanor and reviewing opinions from the state's Supreme and Appeals courts that overturned some of his rulings.

Griffith was not reappointed, and his eight-year tenure on the bench ends this month.

For the Supreme Court, holding a second round of arguments in an appeal is unusual. But on March 6, the justices asked lawyers to return to address whether Griffith had the authority to preside over Porter's trial after it was moved to Arlington.

The justices noted that "there is no order in the record entered by this Court or any other court that designates" Griffith to preside in Arlington's Circuit Court.

The justices asked whether that omission voided the orders Griffith entered in either court; whether either court had jurisdiction over the case; and whether the failure of Porter's lawyers to object to Griffith presiding in Arlington during the trial rendered moot the jurisdictional questions.

Mary Calkins, one of Porter's lawyers, said Porter's conviction should be vacated.

Case law on the questions posed by the justices is unclear, Calkins said. But she pointed to an 1888 state Supreme Court decision that overturned a judge's ruling because he had not been designated as a judge of the court where the ruling was made.

Calkins also pointed to the death penalty trial of John Allen Muhammed in the Beltway sniper case. The Prince William County judge presiding over that case sought a special designation that permitted him to hear the trial in Virginia Beach, she said.

Griffith "just decided he could go and he didn't obtain a designation from anyone," Calkins said.

"So you're saying a defendant can just sit back passively, let a whole trial take place, get the death penalty, and then say there was no subject matter jurisdiction?" asked Justice Barbara Milano Keenan.

Senior Assistant Attorney General Matthew Dullaghan argued for the state that Porter's conviction should stand. He acknowledged that case law on the questions posed by the justices is sparse. But, he said, the change of venue did not change the fact that the crime happened in Norfolk.

Thus, Dullaghan said, it remained a Norfolk case that could be heard by a Norfolk judge, despite its relocation to Arlington. In his written brief to the court, Dullaghan said Arlington had invited Griffith by providing a courtroom, staff and other facilities during the three weeks the trial was held in February and March 2007.

"Not until this court ordered further briefing did the defendant decide to complain," Dullaghan wrote.

The justices are expected to issue their opinion next month.

Michelle Washington, (757) 446-2287, michelle.washington@pilotonline.com