Immune system: Weiner sues Lunsford for prosecutorial misconduct

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Then-Commonwealth’s Attorney Denise Lunsford talks with reporters outside of the Albemarle Circuit Court after Mark Weiner’s sentencing was delayed in July 2014. Mark Weiner exits the Albemarle-Charlottesville Regional Jail in July 2015 after he spent more than two years in jail for a crime he says never took place.
Staff photo Then-Commonwealth’s Attorney Denise Lunsford talks with reporters outside of the Albemarle Circuit Court after Mark Weiner’s sentencing was delayed in July 2014. Mark Weiner exits the Albemarle-Charlottesville Regional Jail in July 2015 after he spent more than two years in jail for a crime he says never took place. Staff photo

The man who was convicted of abduction with intent to defile and who spent two-and-a-half years in jail before the alleged victim’s story fell apart filed suit July 14 against the former commonwealth’s attorney who prosecuted him.

Mark Weiner, now living in Maryland, filed a civil lawsuit in federal court July 14—exactly two years after the day he was released from jail—against Albemarle County, the commonwealth’s attorney office and Denise Lunsford.

In December 2012, former Food Lion manager Weiner offered a ride to then-20-year-old Chelsea Steiniger, whose boyfriend had refused to let her spend the night. Steiniger claimed that Weiner put a cloth over her face with a mysterious agent that rendered her unconscious, used her phone to send taunting texts to her beau, and that she awakened in an abandoned house on Richmond Road, where she grabbed her phone, leaped off a second floor deck and escaped.

After Weiner was convicted in May 2013, his lawyer complained that Lunsford prevented him from entering exculpatory cell tower records that showed Steiniger was likely at her mother’s house.

The case became a national story and was a major factor in Lunsford’s unsuccessful bid for a third term in the November 2015 election, when Republican Robert Tracci unseated her.

Weiner’s civil attorney, Barton Keyes, is a member of a wrongful conviction practice in Columbus, Ohio.

Despite the formidable immunity Lunsford had as prosecutor, Keyes says, “We think in this case, the circumstances will let us hold her accountable.”

The complaint did not specify monetary damages but Keyes says, “Mark spent over two years in prison. We’re talking substantial damages.”

Lunsford sent a statement through her Richmond McGuireWoods attorney and says she conducted her duties as commonwealth’s attorney “diligently, ethically, and to the best of my abilities.” She says she’s proud of her service in protecting the interests of justice and safety in the community. “As a private citizen now, I intend to defend my personal and professional reputation in court, and not in the press,” says Lunsford.

Tracci issued his own statement: “Because the office I serve is named in this suit, I will reply to its merits when appropriate and in due course. Without speaking to the merits of this suit, my personal views concerning the handling of the Mark Weiner case are widely known and a matter of crystal clear record.”

Experts say prosecutorial immunity will be a tough hurdle for Weiner to overcome.

“The main legal obstacle to holding prosecutors accountable for misconduct that leads to wrongful convictions is that they have absolute immunity for civil damages for their lawyering in the courtroom,” says UVA Law’s Brandon Garrett. It’s even harder to know if prosecutors concealed evidence of innocence “because in states like Virginia, they need turn over so little of what is in their files,” he adds.

Steve Rosenfield was an attorney in one of the few successful civil suits waged in a wrongful conviction, in which his client, Earl Washington Jr., came within nine days of execution. Rosenfield says Weiner “is on solid footing morally. Legally, he’s likely to run into serious barriers.”

Deirdre Enright heads UVA’s Innocence Project Clinic, and three years ago she said Weiner’s case “had all the earmarks of a bad case because it didn’t make sense.”

Immunity makes prosecutors and police “Teflon to meaningful consequences,” even though their misconduct is a leading cause of wrongful convictions, she says. “The average citizen will pay a fine for a broken taillight, but most prosecutors won’t pay a dime for their role in wrongfully convicting someone, however nefarious their conduct.”

Keyes says Lunsford proceeded to prosecute “despite clear evidence that contradicted [Steiniger’s] story. Most egregious, he says, was that it appears “the prosecutor was thinking her sole role was to secure a conviction when in reality a prosecutor’s job is to secure justice.”

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