Legal sniping: Weiner sentencing continued…again

Commonwealth's Attorney Denise Lunsford and attorney Steve Benjamin sparred in court about hearing new evidence before Mark Weiner's sentencing for abduction. Photo: Max March Commonwealth’s Attorney Denise Lunsford and attorney Steve Benjamin sparred in court about hearing new evidence before Mark Weiner’s sentencing for abduction. Photo: Max March

Surely Mark Weiner hoped, going into Albemarle County Circuit Court on December 17 to be sentenced for abduction with intent to defile, the third time would be the charm that sent him home. The now 54-year-old former grocery store manager has been sitting in jail for two years despite what his attorneys say is mounting evidence that proves his innocence. Instead, his sentencing was continued again as attorneys fired off accusations and a typically mild-mannered jurist threatened one with contempt of court.

The jury that convicted Weiner in May 2013 recommended a sentence of 20 years. On December 8, a little more than a week before the latest sentencing hearing, Weiner’s attorneys, Steve Benjamin and Betty Layne DesPortes, filed a motion to set aside the verdict because of newly discovered evidence: Two witnesses who contradict Chelsea Steiniger’s story that after she accepted a ride from Weiner in December 2012, he rendered her unconscious with a chemical-soaked cloth and she awakened in an abandoned house on Richmond Road that she’d never been to before. Weiner has maintained he dropped Steiniger safely at her mother’s Pantops residence, and the witnesses swore in affidavits that they had been to the abandoned house at 2184 Richmond Rd. multiple times with Steiniger before she ever encountered Weiner.

The case has created ripples in legal circles since immediately after Weiner’s conviction, when his previous attorney, Ford Childress, accused Albemarle Commonwealth’s Attorney Denise Lunsford of excluding exculpatory cell tower evidence that two detectives said would have shown Steiniger was using her phone from her mother’s apartment, not from the abandoned house on Richmond Road. Earlier this year the defense filed a motion alleging perjury by Steiniger, prosecutorial misconduct, and ineffective counsel by Childress, who filed an affidavit supporting the claim he’d failed his client. Two anesthesiologists filed affidavits explaining there is no chemical that would render someone instantly unconscious, as Steiniger had described.

In June, Albemarle County Circuit Court Judge Cheryl Higgins ruled she didn’t have jurisdiction to overturn the conviction.

In court on December 17, Higgins said she didn’t have time to address the latest motion to set aside the verdict based on newly discovered evidence, and she wanted to move forward with sentencing because the case had been going on for so long.

Benjamin argued that the court should hear the motion and new evidence before sentencing, and said the defense had presented “overwhelming evidence” that Weiner is innocent and “overwhelming evidence of perjury of the witness.” Insisted Benjamin, “This motion must be ruled upon.”

Higgins was not swayed, and was set to proceed with sentencing when Benjamin made another motion that had the judge and prosecutor looking up statute 30-5. That’s the part of the Code of Virginia that mandates a continuance if an attorney is an employee of the General Assembly. Benjamin said he serves as special counsel to the Senate’s Courts of Justice Committee.

The statute typically is used by legislators who are attorneys, like delegates Rob Bell or David Toscano. “I’ve never seen anyone other than delegates or senators use it, but it would cover employees,” said C-VILLE legal expert David Heilberg.

He also said the judge could sentence without hearing the motion. “I suppose a judge can do anything,” Heilberg said, noting that sentencing without hearing the motion could be grounds for an appeal.

Back in the courtroom, Lunsford called the use of 30-5 a “trump card.”

“Obviously Mr. Benjamin is hellbent on getting a continuance today,” she said. She asked that the continuance be set for 30 days after the end of the General Assembly session, which runs from January 14 to February 28, while Benjamin requested a January date—despite the legislature being in session—promising he’d make his best effort to be there. He reminded the court that “an innocent man has been in jail two years,” and said he filed the motion as soon as he discovered the new evidence.

“I am not ‘hellbent’ on continuing,” Benjamin said, and argued against putting the hearing off until March or April “out of spite.”

“Mr. Benjamin,” admonished Judge Higgins, “this is bordering on contempt to say the court would put it off out of spite. And for the record, it’s not out of spite.”

Benjamin quickly backpedaled and assured the judge, “For the record, the spite referred to the Commonwealth, not the court.”

Heilberg said he’s never seen Higgins threaten an attorney with contempt of court. “Certainly Judge Higgins has a good demeanor,” he said. “She must have been angry. I’m not sure I’ve ever seen her angry.”

Outside the courtroom, Lunsford called the continuance “an abuse of legislative privilege.”

After the hearing, Benjamin said, “What matters to Mark Weiner is the truth be heard and he be set free.” His client, he said, “was doing as well as anyone could be who continued to be locked up for two years.” When Weiner goes in for sentencing May 6, he will have been locked up for two-and-a-half years awaiting a resolution in his case.

“That’s an unusual length of time,” observed Heilberg. “That’s pushing the envelope on the length of time between conviction and sentencing.”

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