Tuesday afternoon brought a major development in a local case that continues to grab national headlines: Albemarle County Commonwealth’s Attorney Denise Lunsford announced that she would charge Jesse Matthew with capital murder in the death of UVA second-year Hannah Graham. That means Matthew, who was in court for a hearing to set his trial date on first-degree murder and abduction charges in the case, could now face the death penalty.
“The Commonwealth received some additional forensic information in late February that led to this increased in charge,” Lunsford told a throng of reporters gathered outside the county courthouse.
February was when a grand jury indicted Matthew on charges of first-degree murder, abduction with intent to defile and reckless driving in connection with Graham’s death. The 18-year-old went missing in the early morning hours of September 13, 2014 after a night out with friends. Security camera footage shows she ended up on the Downtown Mall, apparently disoriented, where witnesses saw her outside a bar with Matthew, who was charged with her abduction soon after and arrested on September 24 near Galveston, Texas. After weeks of searching by volunteers and law enforcement officials from around the state, Graham’s skeletal remains were found on a rural property off Old Lynchburg Road on October 18. A medical examiner declared the death a homicide.
Matthew is also facing attempted murder and rape charges stemming from a 2005 assault in Fairfax County. DNA from that assault has been linked to Morgan Harrington, the Virginia Tech student who disappeared in 2009 and whose remains were found three months later in a field a few miles from where Graham was found. No charges have been filed in that case.
When the indictment in the Graham case came on February 2, Lunsford took care to note that Matthew had not been charged with a capital crime.
“A great deal of serious thought went into the decision, including the impact on the Grahams, on the community and the ability to have a fair trial,” Lunsford said then.
She did not elaborate yesterday on the specific evidence that has prompted the Commonwealth to put the death penalty on the table now. But David Heilberg, one the few attorneys in the Charlottesville area who is certified to defend capital cases, said it’s possible that investigators discovered some kind of biological evidence that could help them prove what he refers to as “murder-plus.” That’s what a capital murder charge requires, said Heilberg, who is not directly involved in the Matthew case: not only willful, deliberate and premeditated killing, but proof of an additional element, such as a second homicide, robbery, sexual assault, abduction or some other crime.
“I can only speculate,” said Heilberg, “but maybe there’s some kind of DNA evidence, biological evidence on her clothing or her, that could improve their case”—because it supports a charge of rape or some other crime.
Heilberg can’t recall the last time the county pursued capital charges in a murder case. There’s no question, he said, that the already high-profile trial will now see much more scrutiny—and will cost taxpayers much more. According to various reports, James Camblos, the former Albemarle County prosecutor who has represented Matthew since his arrest, has been replaced by Doug Ramseur of the Virginia Capital Defender Offices and local attorney Michael Hemenway. Both are highly respected defense lawyers, said Heilberg, and have the experience and qualifications for such cases.
“There’s an expression: ‘Death is different,’” he said. “So much is at stake, and so much more can happen. It requires specialized training. Not more than a half dozen people in the Charlottesville area can do them.”
Another attorney with such experience and certification? Denise Lunsford. Contrary to what was reported in the Washington Post this week, the prosecutor did handle capital cases during her years as a defense attorney here. She defended Dorian Lester, the former Patricia Kluge bodyguard convicted of murdering a jeweler in 1997, as well as Craig Nordenson, who killed two people in a notorious shooting at the coal tower near downtown Charlottesville in the summer of 2001, among others. Both were sentenced to life without parole—the only other sentencing option besides death in a capital case.
Lunsford confirmed in an e-mail Wednesday that she was also a mitigation expert on a number of other death penalty cases. In that role, she would have served as a kind of biographer for the accused, Heilberg explained. “A mitigation specialist goes back into the defendant’s background and literally finds out what made them who they are today,” he said.
This will, however, be her first time prosecuting a death penalty case. (Lunsford charged a Louisa County man named Daniel Dove with capital murder after he killed a man during a robbery in an Autumn Hill apartment in 2008, but Dove pleaded guilty, and there was no jury trial.) Heilberg said she could face a long, tough fight. Matthew’s defense attorneys may push for a change of venue, he said, citing the intense media coverage of the case.
“It’s a very high hurdle to clear,” he said. “I don’t remember any change-of-venue cases anywhere around here, and that’s in the last 36 years. But this is the kind of case where the defense would certainly attempt it.”
That can be part of what adds to the length and expense of capital trials. “It means more rounds of pre-trial hearings, and it’s grounds for an appeal if you don’t get it,” he said. “To put someone to death is very expensive.”