Like a scene in a movie, the kidnapper allegedly knocked out his female victim with a chemical-soaked rag and hauled her to an abandoned house where he seized her cell phone and began taunting her boyfriend with text messages. “She’s so sexy when she’s passed out,” read one. “IMMa warm her up,” read another.
It would be an unusual abduction strategy for anyone, particularly for a 52-year-old grocery store manager and Barboursville-based family man. Yet despite a lack of any physical evidence tying him to the scene and despite a reported later admission by the alleged victim that her tale was “an elaborate scam,” Mark Lawrence Weiner, now 53, was convicted of abduction with intent to defile and has been jailed for more than 18 months.
His long-running legal ordeal, detailed in the transcript from his May 2013 trial and in a variety of records filed with the court, has only intensified now that Albemarle County Circuit Court Judge Cheryl Higgins, who presided over the trial, declined to set aside the conviction, even though the prosecutor blocked the jury from hearing cell phone tower evidence that the defense claims would have proven the alleged victim was lying.
“A man’s innocence, a person’s innocence, should always be the key to their freedom,” said Weiner’s Richmond-based attorney Steve Benjamin outside the courthouse after Judge Higgins, ruling that her court lacked jurisdiction, denied the motion on June 3.
While the accuser stands by her story, the defense team has amassed an array of evidence that contradicts it, thrusting the case and Virginia’s legal system into the media spotlight. His attorneys point out that Virginia’s legal procedures could force Weiner to spend years in prison for a crime he not only didn’t commit but which, they assert, never even occurred.
Ride gone wrong
It was a chilly December night when Chelsea Steiniger’s boyfriend, Michael Mills, told her she could not spend the night in his Region Ten housing on Grady Avenue, according to trial documents. At 11:30pm on December 12, 2012, with temperatures just above freezing, according to weather records, she began walking to her mother’s townhouse on Pantops, texting back and forth with Mills as she walked, asking him if she could come back to his place if she and her mother fought—“I can’t do that I’m sorry,” Mills texted back at 11:50pm—and discussing her efforts to find her own apartment.
At Lucky 7 convenience store on Market Street, she encountered Weiner, a Forest Lakes Food Lion manager who’d taken a business class that evening at Piedmont Virginia Community College. According to his testimony, the married father of a 9-year-old son had been to Wendy’s after class, and drove around smoking the cigarettes of which his wife disapproved. He was leaving Lucky 7, which he knew was right across the street from the Charlottesville Police Department, when he saw the 20-year-old Steiniger in the parking lot on the cold and windy night. “She looked like she needed a ride,” he testified.
Steiniger and Weiner both agree she accepted his offer of a ride toward Pantops, but from that point, their stories wildly diverge.
Weiner said he dropped Steiniger off at her mother’s Carriage Hill residence behind the Giant grocery store, less than three miles from the Lucky 7—a five-minute ride—and that she willingly gave him her phone number, which he wrote on a matchbook cover, in case he had a job opportunity for her at Food Lion.
Steiniger, however, testified that her night took a terrifying turn soon after she got into Weiner’s van.
At 12:10am, Steiniger texted her boyfriend that “some dud[e]” was giving her a ride. Eight minutes later, at 12:18am, she texted, “he tried to get in my pants,” accordingto court records of her messages. At 12:21am, she texted on her 10-digit Tracfone, “just pulled up he wont let me out of the car,” and at 12:22am, she texted her boyfriend that they’d driven past Pantops and she didn’t know where she was going. Exactly one minute later, at 12:23am, the tone of the texting changed.
“[S]he doesn’t have her phone,” read a message allegedly typed by Weiner and sent from Steiniger’s number, according to the phone records.
Steiniger testified that as they drove towards Pantops, Weiner slowed down and put a chemical-soaked cloth over her face that rendered her immediately unconscious. The texting record suggests it had to have happened in that one minute and that somehow, while Weiner drove, he had also managed to subdue Steiniger and take control of her phone.
The defense calls that story “pure fiction,” and in the motion to set aside the verdict, they included affidavits from two expert anesthesiologists who said there’s no volatile chemical that will render an adult female unconscious in 10 to 15 seconds. That debunks the classic movie trope in which a victim is rendered instantly helpless by a chloroform wielding bad guy.
Another local case bears that out. In 2006, banker Kurt Kroboth pleaded guilty to attempted murder for a 2004 Halloween night attack on his estranged wife. Kroboth, who served seven years for the attack, admitted he cut the power and phone lines to his estranged wife’s house, then broke in wearing a vampire mask and attempted to subdue the sleeping woman with a chloroform-soaked rag to her face. His wife awakened and successfully fought him off, even as he attempted to throw her over a second-floor balcony.
According to the affidavit by Dr. John R. Janes supporting the defense motion in the Weiner case, it could take up to five minutes of continuous inhalation of a chemical like chloroform to render an adult unconscious and during that time—as Kroboth discovered— the victim would have the ability to struggle and to recall the events.
The disturbing texts from Steiniger’s phone continued for 10 minutes, according to court records, as Mills became increasingly concerned.
12:27: “Shes so sexy when shes passed out”
12:28: “She was a fighter ill give her that much”
12:36: “Ill let her wake before i let you talk to her”
Mills demanded answers. “What did you do?” he texted at 12:37, and at 12:38, “w[h]ere are you taking her”.
“[S]hes in my house she said she was cold so IMMa warm her up,” came the reply.
Steiniger said she woke up in an abandoned house off Richmond Road and heard the “click click” of Weiner using her phone to send the taunting texts to her boyfriend. According to court records, Steiniger claimed Weiner left the room and abandoned her cell phone, and she documented her escape through additional text messages.
“Baby,” came the first text to Mills at 12:49am after Steiniger said she awoke. “I cant Answer hell find me,” she texted at 12:51am, followed by “Im going out the window… hold on,” at 12:52am.
Steiniger said she escaped by leaping off a second-floor balcony and walking to her mother’s apartment two miles away. Steiniger, who, according to court documents, has at times been homeless, grew up in Fluvanna County and said that when she escaped, she recognized the stretch of U.S. 250 East that goes by the abandoned house and was therefore able to navigate back to her mother’s. Although she had her phone in hand, she didn’t call 911, but Mills already had.
The Emergency Communications Center (ECC) called Steiniger at 1:07am and left a voice message, and called again at 1:08am, according to court records. AT&T records show Steiniger checked her voicemail at 1:09am.
At 1:27am, Mills texted her again to ask where she was, and he told her to call the police so they could find her. Using a different phone, Steiniger called Mills around 2am and also talked to the police, according to court documents.
She was examined by a nurse that night and no evidence of sexual assault was found.
Steiniger testified that she stopped responding to texts after she escaped because her phone battery died after the 12:52am message. Weiner’s defense contends that according to AT&T records, she talked to Mills and listened to the ECC message on her voicemail during the time she said the battery was dead.
In a defense motion, Weiner’s lawyers also said that AT&T records show Steiniger’s cell phone accessed two towers near her mother’s Carriage Hill home dozens of times that night and never pinged from a tower close to the abandoned house at 2184 Richmond Road.
Albemarle Commonwealth’s Attorney Denise Lunsford successfully kept out those records, according to Ford Childress, who represented Weiner during the trial. That’s not all the jury didn’t hear.
Childress said Lunsford asked two local detectives to analyze the cell tower records. Charlottesville Detective Blaine Cosgro was the first, according to Childress, and he told Lunsford there was a problem with the case, concluding that the tower records suggested the text messages were not sent from the abandoned house as Steiniger claimed, but more likely originated from her mother’s address. According to Childress, during the trial, Lunsford then consulted Albemarle police Detective Mark Belew, who came to the same conclusion. Lunsford did not call either detective to testify, and when Childress tried to call Cosgro as a defense witness, Lunsford had him disqualified as an expert.
“I believe the jury would have had an entirely different outcome had they heard Cosgro’s testimony,” said Childress soon after the verdict.
In a motion to set aside the conviction filed in April, Weiner’s current lawyers, Richmond attorneys Steve Benjamin and Betty Layne DesPortes, lay out a slew of accusations and describe problems with the case. They argued that Steiniger lied about the abduction, that Lunsford allowed Steiniger to testify falsely and failed to disclose exculpatory evidence, including the cell phone records that indicated Steiniger used her phone during a period when she said its battery was dead, and that Childress provided ineffective counsel to Weiner.
Childress filed an affidavit supporting the motion and setting out the ways in which he failed his client. The matchbook, upon which Weiner said he’d written Steiniger ‘s number, was not found by police and the prosecution had accused him of lying about it. Childress later found it in the van, according to the affidavit, but he did not enter it into evidence, so the jury never learned of its existence.
Childress also cited his failure to obtain expert assistance to testify as to the impossibility of Steiniger’s story concerning instant unconsciousness by volatile anesthetic. He also did not summon an expert to interpret the AT&T Mobility Usage records, according to the affidavit.
Lunsford, however, fired back in a response to the motion denying that Steiniger lied and disagreeing with the defense’s interpretation of phone records. “I believe [the defense] either misunderstands or misrepresents those phone records,” said Lunsford in her response, insisting that the defense’s only valid claim is the ineffective assistance of counsel by Childress. She asserted that complaints about legal counsel can only be handled through an appeal or a habeas corpus proceeding, which would take place after appeals had been exhausted. Both of those legal processes occur after sentencing and can take months or even years to complete.
At the June 3 hearing in Albemarle Circuit Court, Judge Cheryl Higgins did not dispute most of the allegations within the motion to set aside the verdict, but she sided with the Commonwealth in claiming she didn’t have jurisdiction to throw out the verdict.
Childress and Benjamin are troubled by her decision in the face of what they see as overwhelming evidence of Weiner’s innocence.
“The court has jurisdiction up until 21 days to set aside a verdict,” said Childress, referring to Virginia’s 21-day rule, which only allows new non-DNA evidence to be submitted within 21 days after sentencing. Although Weiner was convicted a year ago, he still has not been sentenced. “I disagree with her ruling,” said Childress.
“Trial judges are given the express power under state law to set aside jury verdicts for error or fraud,” said Benjamin. “This is consistent with a trial judge’s responsibility to ensure the proper conduct of a fair trial.”
The case is deeply troubling to Deirdre Enright, director of investigation for UVA School of Law’s Innocence Project Clinic, who attended Weiner’s recent hearing. “It had all the earmarks of a bad case because it didn’t make sense,” said Enright, who finds much to be skeptical about including the taunting texts alleged to have been sent by Weiner, such as “IMMa warm her up.”
“Do they really think a [52-year-old] man talks like that?” Enright asked.
That Steiniger started texting her boyfriend about a creepy guy and an abandoned house after he’d kicked her out and she faced a long walk home in the cold, said Enright, “seems to me the sort of thing young people do to get your boyfriend to be concerned. And jumping off the balcony without getting hurt? Her story is replete with problems.”
Enright was also troubled by Higgins’ decision.
“It’s really disheartening to me to hear the court say she has no jurisdiction.” The cell tower evidence was known about during the trial—a rare occurrence of falling within the 21-day rule. “How [Higgins] could say she didn’t have jurisdiction is mystifying to me,” said Enright.
Virginia’s notorious 21-day rule is just one factor that hampers relief to the wrongly convicted, say defense attorneys.
Johnathan Montgomery was falsely accused of sexual assault in 2007 in Hampton Circuit Court. Years later, when his accuser recanted, the judge who convicted him was unable to release Montgomery because of the 21-day rule, and it took an order from former Governor Bob McDonnell to set him free after he’d already served four years in prison.
“Virginia proves that its system is error-free by making it extremely difficult to prove error happened,” said Virginia Association of Criminal Defense Attorneys President Doug Ramseur. “And it’s very rare that a case is overturned on appeal.”
Once appeals are exhausted, the wrongly convicted can file a writ of habeas corpus, which translates to “where’s the body?” said legal expert David Heilberg. “You literally sue the warden of the facility” where the person is being wrongly incarcerated.
That’s how a federal judge ruled that Michael Hash, who was in prison for almost 12 years, was the victim of “outrageous misconduct” on the part of the Culpeper police and prosecutor to convict him of the murder of Thelma Scroggins.
One other little-known option is for Weiner to persuade a commonwealth’s attorney to go before a regular grand jury when it convenes and request an investigation into the circumstances surrounding the case, such as allegations of perjury. A special investigative grand jury can be formed when a single regular grand jury member requests it, and it must be formed upon request of a prosecutor or a majority of the grand jury. However, says Heilberg, that’s an unlikely remedy.
And writs of actual innocence are rare without DNA evidence, said Ramseur.
Why is the fate of the wrongfully convicted so grim in Virginia? The first thing Ramseur mentions is the low pay of court-appointed attorneys, which can make it difficult to put on an adequate defense. (That was not the case for Weiner, who retained Childress.)
Virginia also doesn’t make it easy for defendants to obtain the evidence that will be used against them. “Virginia has the most restrictive discovery in the country,” said Ramseur. “There’s no right for a defendant to get the list of witnesses who will testify against them or the police report. Basically it’s trial by ambush because you don’t know what witnesses will be called against you.”
Ramseur says the appeals process is also draconian because even a slight procedural error on the part of a defense attorney—a failure to note an objection at the proper time in the trial, for instance—can mean the appellate court won’t hear the case. “Defense attorneys could be saying, ‘We have a great case to show he didn’t do it,’ and there’s no remedy from the appellate court, [which says,] we care more about the process,” he said.
“Virginia has come under a great deal of criticism for a long time for its inability to fix things,” said Ramseur. “A lot of times in the legal system, finality is valued more than correctness, whether [or not] they got the answer right.”
In Virginia, commonwealth’s attorneys are elected constitutional officers with virtually no oversight other than the Virginia State Bar—and the voters. Ramseur said it’s “extremely rare” for defendants to claim prosecutorial misconduct.
“People complain about it more than they file motions,” concurred Heilberg. “It’s hard for a local attorney to make that allegation when it’s someone they work with every day.”
Withholding exculpatory evidence is not a criminal violation under Virginia code, said Ramseur, “but it’s unethical.” It could also violate the defendant’s constitutional right to exculpatory evidence. He maintains that even when complaints about prosecutors are filed with the state bar, little is done about it. In contrast, if a defense attorney improperly used funds he or she held in trust for a client, “they’d be disbarred,” he groused.
“That’s not fair,” said Ned Davis, who’s in charge of professional regulation with the Virginia State Bar. He estimates prosecutors are disciplined “once or twice every year,” and lists examples, such as Williamsburg Commonwealth’s Attorney Nathan Green, whom the bar publicly admonished last year for prosecuting the DUI appeal of a donor and local attorney when he should have recused himself for a conflict of interest. Fairfax Assistant Commonwealth’s Attorney Mark Sullivan was publicly admonished in 2012 for allowing testimony he knew to be false, but he held onto his license to practice law.
In Lunsford’s response to the motion, she strongly denied any wrongdoing and argued that the court would set a dangerous precedent if it set aside the verdict, asserting that Childress had access to the same information now available to Weiner’s current lawyers.
“The Commonwealth urges the court to restrict its consideration of the facts to those presented at trial. A determination to do otherwise will open every jury verdict to a challenge based on the evidence that the defense might have presented at trial,” she wrote.
Both Albemarle and Charlottesville prosecutors have an “open file policy” that allows the defense to see the evidence against the defendant. Childress contends that he could see—but not make copies of—documents in Lunsford’s file and that exculpatory evidence, including a recording between lead investigator Gregory Anastopolous and AT&T, in which the phone company rep explained Steiniger had accessed her voicemail during the period she said she was unconscious, “was not given to me,” said Childress.
Backed by Lunsford, Steiniger stands by her story.
“People have called me a liar and it’s just not true,” said Steiniger in a mid-June phone interview. “I feel like they’ve smeared my name all over. It’s affected me and my life a lot.”
According to court records, she said she didn’t call 911 after the abduction because she didn’t like police, based on a bad experience had by her husband Howard Steiniger, who was incarcerated in Dillwyn Correctional Center. According to the defense motion, Howard Steiniger claimed she confided that the Weiner incident was an “elaborate scam that had gone horribly wrong” in an effort to anger a man named Mike.
“She was just trying to piss this Mike guy off,” Howard Steiniger said.
And in text messages sent from Mills the day after the incident, the defense motion suggests, he already knew her story wasn’t true. “[W]hy did u lie to me?” he wrote.
Steiniger declined to answer specific questions about the incident, but in a previous interview, she called the police analysis of records that suggested her cellphone was closer to her mother’s apartment than the abandoned house, “bullshit.”
And she still maintains that Weiner is guilty. “I’m glad he’s off the streets,” she said. “He can’t do this to anyone else.”
Ford Childress, who has practiced law for 30 years, including 10 years in the Albemarle Commonwealth’s Attorney Office, says the Weiner case “is like a bad B movie.” He describes the affidavit with the lengthy list of how he provided ineffective counsel to Weiner “an ethical duty,” and his self-critical filing brings praise from another local legal professional.
“Ford fell on his sword and said he didn’t do due diligence,” observed attorney Heilberg. “It’s genuinely rare. Lawyers have a tendency to be defensive.”
Childress points out that there was no physical evidence tying Weiner to the abandoned house, nor was the mysterious unconsciousness-inducing cloth found. “There’s no corroborating evidence with Chelsea’s story,” he said.
And he’s still disturbed that Lunsford refused to let the police officers who examined the cell tower records testify—and prevented Childress from calling them as witnesses. “I’ve never seen a prosecutor try to keep that evidence out,” he said. “When they tell her she has a problem with her case and she ignores them, you have to question her judgment.”
Several local attorneys contacted by C-VILLE declined to comment on the record about Lunsford’s role in the Weiner case, but Childress is adamant: “I go to all the courts in central Virginia. I’ve never had a trial like this.” He compliments the attorneys who work in Lunsford’s office as “straight up” and “honorable,” but said, “I don’t want to take a case with Denise Lunsford again.”
Lunsford, who ousted Republican Jim Camblos from the commonwealth’s attorney seat in 2007 and was unopposed for reelection in 2011, has a connection to another potential wrongful conviction. A former defense attorney, she represented Robert Davis, the Crozet man convicted of murder because of what his current attorney calls a false confession. Two of his convicted accusers have since admitted they lied when they said Davis was present, and he’s had a clemency petition before the governor since 2012. Lunsford now serves as co-chair of the Virginia Association of Commonwealth’s Attorneys best practices subcommittee to avoid wrongful convictions.
Her co-chair, Arlington/Falls Church Commonwealth’s Attorney Theo Stamos, said that while she’s not familiar with the ins and outs of the Weiner case, “I have the utmost respect for Denise. I know her personally and professionally, and believe her to be a very careful prosecutor.”
Lunsford declined comment on the Weiner case. “I’ll have a statement after sentencing,” she said.
On a recent morning, Mark Weiner is led into a small room inside the Albemarle Charlottesville Regional Jail to be photographed for this article. A hulking man well over six feet tall, his demeanor is quiet and he appears resigned as he sits at a table, shoulders slumped forward. On the advice of his attorneys, he declines to be interviewed, but in a written statement provided to C-VILLE, he asserts his innocence. “I was convicted for something that never happened,” he wrote, expressing gratitude to his supporters. “We can only hope and pray that the criminal justice system will soon correct this terrible mistake,” he wrote.
His family says the case has been hard to bear for all of them, particularly after the latest setback in court, which means Weiner can anticipate several more years in prison.
“Devastating,” said his brother, Mike Weiner, of Judge Higgins’ refusal to set aside the conviction. “It was disbelief to hear that evidence of his innocence is not relevant.”
Mike Weiner has been driving up from Charlotte, North Carolina, once a month the past year-and-a-half to visit his brother. He described a very close family of five siblings, and his brother as a loving family man whom they called the “Gentle Giant.”
Weiner’s young son misses his father terribly, said Mike Weiner. And the impact on the family has been harsh. “They have lost everything—the family home, savings, retirement accounts,” he said. “When I say everything, I mean everything. There’s not an asset left.”
June 3, the day Higgins ruled, “was a very rough day for Mark,” said Weiner. “He was very upset.”
Weiner said his brother’s health is okay. Mentally, the family struggles to grasp the situation. “Having my brother locked away is a front-row seat to a tragedy,” he said. “There’s no crime that ever occurred. It’s based on a lie, a hoax.”
In the jury box, at least one other person came to the same conclusion.
Jurors speak out
“The whole thing was filled with reasonable doubt,” said Weiner trial juror Gary Oliveri. “There was no shred of forensic evidence.”
Oliveri, who was an alternate juror and was excused before deliberations began, said even without hearing the cell phone tower and phone record evidence, he had trouble believing aspects of Steiniger’s story. “They seemed improbable,” he said. “She’s texting her boyfriend while she’s being attacked or in fear of being attacked?” He had a hard time imagining Weiner texting the boyfriend, and it also seemed strange that she awoke in a dark room and “there’s her cellphone, which went dead, and then it wasn’t,” he said.
“I’m troubled and embarrassed to have anything to do with the whole mess,” said Oliveri.
Several of the jurors who convicted Weiner declined comment on what led to their decision, but one agreed to speak on condition that his name not be used. He recalls a “hard decision,” and said he might have felt differently had he heard about the cell tower evidence.
“Had his attorney presented a better case and presented other data, it could have gone another way,” said the juror, who disagreed with the defense motion to set aside the verdict. “I thought he had grounds for appeal. He’s not entitled to have the verdict set aside,” he said.
The juror said he was most influenced by the testimonies of Steiniger and Weiner.
“She was credible and he was not,” he said, noting he was bothered by Weiner driving around downtown after his night class at Piedmont Virginia Community College instead of returning to his family. “When you’re his age, you don’t creep around downtown after class,” he said. “You go home.”
The juror was surprised that the cell tower evidence was not entered. “The prosecution worked hard to suppress that information,” he said.
The Innocence Project Clinic’s Enright said that as prosecutor, Lunsford has two jobs: to prosecute the guilty and to seek justice. “Denise Lunsford could have been quite the hero and said, ‘We caught it.’ Now it looks so dishonest,” said Enright.
She remembers looking at Weiner’s family in court as they awaited Higgins’ decision on June 3. “They think it’s a mistake and will get corrected because that’s what rational people do,” she said.
Weiner is scheduled for sentencing July 22, and the jury recommended that he receive 20 years in prison.
“Every day we go to the office, we have to confront the fact that Mark is still in jail,” said attorney Benjamin. “It’s a fact, an injustice that we confront every day. It’s a terrible feeling of helplessness.”
Vowed the lawyer, “We’ll continue to fight. That I can promise.”