Lightning rod: Commonwealth’s Attorney Denise Lunsford talks Mark Weiner, capital murder and that dress

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Photo: Jackson Smith Photo: Jackson Smith

It’s a Friday morning in late June, and Albemarle County Commonwealth’s Attorney Denise Lunsford is sitting on the patio at Java Java Coffee Shop on the Downtown Mall, a few blocks away from the courtroom where, in a hearing a day earlier, Albemarle Circuit Court Judge Cheryl Higgins declined to recuse herself from the Jesse Matthew case, paving the way for his July 2016 trial on a capital murder charge for the slaying of UVA student Hannah Graham.

Away from her office, the county’s top prosecutor is dressed in skinny jeans, a loose-fitting, embroidered white tank top and sneakers. With a cluster of silver necklaces around her neck, wrists covered by bracelets and several chunky silver rings, the 51-year-old mother of three looks more hippie artist than hard-nosed litigator. Even so, within minutes of sitting down, she’s recognized and approached by a young woman wearing a black T-shirt emblazoned with the logo of Help Save the Next Girl, the nonprofit founded by the parents of Morgan Harrington, whose 2009 murder has been linked by DNA to Matthew. After a brief introduction, the woman expresses gratitude for Lunsford’s support, then points to the attorney’s nearly waist-length mane, which is boldly streaked with fuchsia. “I have hair envy,” the young woman gushes, breaking into a wide smile.

Lunsford responds with a laugh and a thanks, then, in her native Tennessee twang, tells the young woman a self-deprecating story about getting a pencil caught in her tresses during a particularly critical point in a hearing as her own teenaged daughter, who was visiting court that day, watched her with disdain. The story prompts laughs, and offers a glimpse of a softer side of Lunsford rarely seen in public.

In certain ways, Lunsford seems ripped from fiction. A girl from a broken home in rural Tennessee makes good and goes to law school, but keeps the tough edge as she does battle in the courtroom. She has an unapologetic penchant for tight dresses, tattoos and motorcycle jackets. She’s been known to toss her pack of Marlboro Lights on the courtroom table (although she quit smoking on May 25), and, quite simply, does not seem to give a damn what others think, even as an election looms and a Republican opponent has emerged to challenge her. 

While Lunsford insists she doesn’t seek controversy, neither has she successfully avoided it. Several years ago, she drew fire over the length of time it took to release information in two separate police shootings. And then there was the episode in which Lunsford herself was targeted online, a situation that, at least in part, prompted Republican Delegate Rob Bell to sponsor a revenge porn bill that passed in 2014.

But it’s the Mark Weiner case that’s brought the harshest criticism, and it’s unlikely to let up even after she agreed with the defense on July 14—a few weeks after the first portion of this interview—that the former grocery store manager’s 2013 abduction conviction should be vacated.

In the midst of her first capital murder case as a prosecutor, with a contested election looming and the Weiner controversy swirling, C-VILLE sat down with Lunsford to ask some hard questions—and to find out if she’s actually as tough as she seems.

This interview has been edited for length and clarity.

Clockwise from left: Lunsford in her 1987 Washington and Lee Schol of Law yearbook. Lunsford spent months campaigning in 2007 in her successful bid to unseat predecessor Jim Camblos. Lunsford and longtime partner Richard Brewer, chair of the Albemarle County Democratic Party, have three children together. Lunsford announced an upgrade of the charges against Jesse Matthew to capital murder on May 5. Lunsford speaks to reporters following a hearing in the Weiner case. Photo: Amy Jackson
Clockwise from left: Lunsford in her 1987 Washington and Lee Schol of Law yearbook. Lunsford spent months campaigning in 2007 in her successful bid to unseat predecessor Jim Camblos. Lunsford and longtime partner Richard Brewer, chair of the Albemarle County Democratic Party, have three children together. Lunsford announced an upgrade of the charges against Jesse Matthew to capital murder on May 5. Lunsford speaks to reporters following a hearing in the Weiner case. Photo: Amy Jackson

C-VILLE: Why did you decide to become an attorney?

Denise Lunsford: My mother was a court reporter, and she got that job when I was probably 12 or 13 years old, so for a long time I would go to the courthouse, where she would make me file things or read depositions. She wanted me to become a lawyer. In college, I studied art and photography, but [the latter] got to a point where it was more like chemistry than like art, and I didn’t enjoy that part of it, so I decided to try pre-law.

How did you get into criminal law?

When I went to law school, I don’t think I had a real clear thought about what I wanted to do with a law degree. I think I was probably thinking I’d do some sort of office practice, and then we had moot court where you write an appellate brief and you argue it first year as  part of your schooling. I did pretty well in that, and I really enjoyed it. I also did well in commercial transactions, so when I first came to Charlottesville [in 1990], I was hired at Michie Hamlett to do commercial litigation.

At that time, we didn’t have a public defenders office. Michie Hamlett believes strongly in public service and [pro bono]*, representing people who can’t afford it. They felt that my doing court-appointed cases served the community, and it also taught me how to work in the courtroom.

Was it hard to switch from defense to prosecution?

It wasn’t as hard as I thought it was going to be. I guess I just didn’t know what to expect in terms of that transition. I always felt that a good lawyer ought to be able to argue either side of a case or an issue. That’s sort of what you do. For me it was a very easy transition. There are some lawyers who are just defense lawyers or who are just prosecutors, and it would be more difficult for some people to make the transition.

What’s the hardest case you’ve had to try as a prosecutor?

I think the [Henry Jasper rape case] was emotionally hard, seeing the impact on the victim in that case. [Jasper, already a convicted sex offender, was convicted of raping at knifepoint a 24-year-old woman in her county apartment in late 2013. Following the guilty verdict, he shouted threats at the victim in the courtroom, but the victim went on to give an impact statement and Jasper received two life sentences.] There was a juror in that case who was so traumatized…the juror didn’t want to come back to court the next day.

Do you think the public has an accurate perception of you?

I don’t. That’s based in part on what you read in blogs, which I try not read, and in [comments under] articles… [My partner] Richard [Brewer] will go on and read the blogs. I go, I don’t want you to tell me what it says. [They’re] just kind of mean. You get judged based on what you’re wearing on a particular day, you get judged based on one decision that you made, [and] people don’t know what went into making that decision. The [Mark] Weiner case is an example. [Weiner was convicted of abduction with intent to defile stemming from a December 2012 incident in which he offered a young woman a ride. The woman accused him of rendering her unconscious with a chemical soaked rag and taking her to an abandoned property on Richmond Road, all while sending taunting texts to her boyfriend. She claimed she escaped by jumping out a window and making her way home. After his conviction, Weiner’s new legal team presented a slew of evidence that had not been presented at trial and argued that Weiner had been wrongly convicted.] There are a wealth of people in the community from other lawyers to police officers to citizens to whomever who have opinions about that case, but they don’t know what went on in that case. They weren’t in the courtroom, they weren’t in the office when we were discussing how to proceed, whether to proceed. They don’t know all the facts.

Is there more to that case than was seen or heard in court?

There was evidence that was not admitted in court that the [defense] wanted to admit but they hadn’t subpoenaed the correct witnesses for… It’s an important thing. There are some people that I’ve heard say, “You just let the evidence in; you’re supposed to do that.” What a trial is about is giving the jury reliable evidence that’s understandable and that’s helpful. If there’s evidence that’s not reliable, I as a prosecutor, they as the defense attorney, the judge, we have an obligation to try not to allow it in front of the jury if it’s not reliable. I felt that the cell tower information was not reliable… What it came down to was… could she have been in the location the offense was alleged to have happened…The answer is yes, she could have been where she said she was, and it would have hit off this tower.

The whole thing about the mysterious chemical that Weiner was accused of using to subdue her. The affidavits the defense filed from two anesthesiologists say there are no chemicals that render someone instantly unconscious—that isn’t how it works. How do you square that with her story?

I’m not sure that is how it works. I haven’t talked to an expert. We were never able to determine what the substance was.

But If an expert anesthesiologist says there is no chemical compound that renders someone instantly incapacitated, doesn’t that raise questions about her story?

I can understand that and I don’t have the expertise and I haven’t talked to people to know if that’s accurate or if there’s another opinion about that.

Is part of your decision process to continue fighting to uphold Weiner’s conviction simply procedural? That the Circuit Court was not the appropriate venue to consider overturning the verdict?

After the jury has rendered a verdict, that’s kind of an issue. What is the right procedure. There’s a habeas procedure for what the [first defense] lawyer did. Typically you can’t bring up ineffective assistance of counsel on an appeal; it’s a habeas issue. So whether or not the lawyer should have subpoenaed someone, like a doctor or whatever, that’s going to be an issue for habeas. The issues about whether the evidence was properly admitted is an issue for appeal.

For people who believe he was imprisoned wrongly, it becomes a question of how can we put procedural issues above what appears to be keeping an innocent man behind bars?

One thing I think [Weiner’s attorney Steve Benjamin] did very well is manipulating public opinion. It’s almost like if you say it, it must be true… That’s kind of what happened in this case. He stood up a number of times and said, “An innocent man is in jail.” In some respects this came down to, who did you believe?…I believed the victim. The police believed the victim. The jury heard Mr. Weiner testify and they believed the victim. In addition, I knew that there was other information that never came out for the jury that the judge heard in sentencing that Mr. Weiner had been doing this for years. He had tried to pick up another young woman on two separate occasions months apart…What I saw was an escalating behavior that was very worrisome.

Would you agree that even if he had a pattern of escalating creepy behavior, that if this behavior doesn’t amount to an abduction, he shouldn’t be behind bars?

It goes back to, who do you believe and the credibility of the victim in this case. From my perspective, the victim in this case did not have the capacity to make something like this up, this elaborate story, and stick with it in the way that she did for a period of months. That was one of the compelling things to me. I remember talking to her the first time after I had read the report and talked to the police officer, and I came away, and I thought, it sounds [unlikely]. Mr. Benjamin said one time, “This doesn’t happen. This just doesn’t happen.” I was kind of thinking the same thing, that this just doesn’t happen, and then I talked to her and she was very credible. Following up with other witnesses, following up with the cell tower records and what I did know about them, I felt it was reliable. And then, to say this kind of thing doesn’t happen, think about Morgan Harrington; think about Hannah Graham. It does happen. And it happens with someone who doesn’t have a criminal record to speak of. It happens.

You’re on the Committee on Justice and Professionalism. What kind of work are you doing there?

It’s a new subcommittee of commonwealth’s attorneys [a subcommittee of the Virginia Association of Commonwealth’s Attorneys] that is really kind of looking at how we can better do what we do. Not just looking at wrongful convictions, but how can we do our job better, how can the police do their job better?

In a couple of cases involving police shootings in Albemarle County, there have been questions about why information hasn’t been released sooner. In the Colby Eppard case in 2010 and with Greg Rosson in 2013, there were some who felt you may have been protecting police. How do you respond?

We had this meeting in the police department that I held for the media, and that was one of things we talked about: when the police department is prepared to release the name, when I’m prepared to release the name of an officer. It’s no different when you’re investigating any other homicide case for example and you’re looking at a suspect, unless there is a concern of community safety. With an officer, we know who the officer is who was involved in the shooting. We’re not looking for a suspect, they’re on administrative leave, the community is protected in that [the officer] is not still on duty if there is going to be a charge. In terms of Colby Eppard and the number of shots that were fired, I don’t remember… and to be honest I’m not sure that I ever knew how many times he was hit because it wasn’t central to my decision. My decision was, did the officers that were there have a duty to protect the public by firing? Were they legally justified in firing their weapons? If they’re legally justified in firing their weapons, it doesn’t matter how many of the officers shot. There was no indication that [Eppard] had been shot 40 times. It didn’t look like there was anyone standing over him shooting him after he was already on the ground. It was a situation where every officer who was there was legally justified in firing their weapons.

You now have an opponent in the race. Does that change how you approach the lead up to the election in any way?

I have a job to do, and that’s the most important thing. I’m spending a lot of time if not most of my time on the [Jesse] Matthew case, and that’s the most important thing. Seven years ago when I ran the first time, knocking on doors and campaigning was pretty much all I was doing because I had just returned from a sabbatical. Now, I’ve got this case to think about and the office to run, so it’s different in that respect….If I focus on doing my job instead of keeping my job, and I lose the election, then at least I’ll know I’ve done the right thing. I’m making sure this case is taken care of and my office is taken care of.

In what way do you believe you are better suited for the position than your opponent Robert Tracci?

I think it comes down to experience. I’ve got 25 years experience trying cases on both sides of the bar, as a defense attorney and as a prosecutor. I’ve got experience in all kinds of cases from DUI to assault to capital murder. I know how to help direct investigations. The knowledge of how an investigation is performed and how officers do their work, as well as what defense attorneys expect, helps in the development of policies relating to things like body-worn cameras. Judge [Cheryl] Higgins, our sitting judge, and the community expect the elected commonwealth’s attorney to be up there trying these cases and not an assistant commonwealth’s attorney because the elected commonwealth’s attorney doesn’t have the experience necessary to try the case.

What would happen to the Jesse Matthew case if you lost the election?

Someone else would try it. If Mr. Tracci would win, the trial is set for July, so he would need to prepare himself in a period of seven months.

Going back to public perception. You are a bold presence. You’re known for your sense of style, and you were criticized for your choice of dress at the press conference announcing charges against Jesse Matthew in the Hannah Graham case. Are you making a statement?

The red dress. It was red! The only difference between that dress and any other dress I’ve worn is it was red. I’ve tried wearing suits and I’m not comfortable. When I’m in court if I’m fidgeting, worrying whether my bra strap is showing, or worrying about if my skirt is too long or it doesn’t feel right, it’s a distraction that I don’t need. I dress the way I’m comfortable, and that happens to be in a way that a lot of other people don’t dress. I also think that as a society, there’s a double standard for women. The whole dress code issue for girls with schools… On the one hand, I wish schools would just go to uniforms. It would be a lot easier on parents. On the other hand, my daughter goes to Village School, and they have a dress code at the Village School. There are no boys. There are no distractions to worry about. And why in a public school are we forcing girls to wear tops that have an inch wide or wider strap? Why is that the girls’ responsibility? Why don’t we smack the boys on the back of the head and say, ‘Keep your eyes to yourself.’ It’s almost gotten to the point with some statements about [my attire] that I am trying to prove a point. It doesn’t matter how long my skirt is; it doesn’t matter if I have a tattoo. I am good at what I do, and I believe I’m good at what I do, and I believe I’m creating a good office.

I think if there is a false impression that people have of me, it’s that I’m somehow incapable of doing what I’m doing because of how I dress. But if I reversed how I dress, and I wore pants suits and I wore very conservative suits, then I would be called frumpy. You know, that’s what they say about Hillary Clinton. You can’t fuckin’ win. It’s really frustrating from that perspective.

Where do you get that red dress?

Verdigris.

What issues would you like to focus on in the future?

Mental health reform in terms of how we deal with people who are in crisis, and how they get services, and we also need to consider what happens to them in the criminal justice system. In the past week, there have been four or five cases where police have responded to homes because of mental health issues. One is an older lady who thinks someone is breaking into her house. We don’t think someone’s breaking into her house, but we don’t want her not to call the police if she thinks someone’s breaking into her house, so we have to figure out how to make her more comfortable. [These types of calls] happen every day, so we have to figure out a response to that.

[Crisis intervention training for police officers] has been helpful. I’ll get a call from a police officer who’ll say, “I arrested someone last night because I didn’t have a choice.” We need to look at this case and figure out, is there something else we can do with it.

We’re also looking at the CORR [Center of Risk Reduction] an effort by the community to help with rehabilitation while holding people responsible in the community as opposed to jail for certain levels of risks of offenders.

Sudden Reversal: Inside Lunsford’s turn-around on Weiner

After spending two-and-a-half years in jail, Mark Weiner was released on Tuesday, July 14. Photo: Staff photo
After spending two-and-a-half years in jail, Mark Weiner was released on Tuesday, July 14. Photo: Staff photo

Two and a half weeks after Lunsford sat for the previous interview, she made headlines by joining with the defense team of Mark Weiner to request that the abduction conviction for which he’d been sentenced to serve eight years be vacated. The basis for the decision was information that Lunsford received on July 8, according to court records, that Weiner’s accuser, Chelsea Steiniger, had sold cocaine to an undercover police officer and that one of the people who’d been present with her at the time of that transaction had testified for the defense in the Weiner case. As commonwealth’s attorney, Lunsford is required to have knowledge of any relevant case information that’s known to law enforcement, and the federal Brady Rule requires the prosecution to share with the defense any information that is potentially favorable to the defendant.

C-VILLE sat down again with Lunsford the day after Weiner’s release to revisit the case and talk about her about-face on his conviction.

How difficult was the decision to join the defense motion to vacate the verdict?

There was a Brady violation. [The cocaine sale] was something that the defense should have known about, that I should have known about, that neither the defense nor I knew about. From that perspective, it was easy. It was absolutely the right thing to do. It had nothing to do with the victim, it had nothing to do with Mr. Weiner, it had nothing to do with politics. It was what was the right thing to do.

Your most recent court filing mentions that this new development, in conjunction with previous information, led to the decision to request Weiner’s freedom. Do you feel differently about any of the other evidence that the defense entered in an effort to prove Weiner’s innocence?

As I mentioned yesterday in trial, there were two or three witnesses that testified back in May about whether she’d been at the house previously. One of the people was Tyrell Fleming. Mr. Fleming was with Chelsea when she sold cocaine in February. I don’t think it would have been a reason to overturn the verdict, but [the information] should have been turned over to the defense.

Why not try it again?

It’s a compilation of all of the additional information and how that might weigh on the credibility of the victim.

When we spoke in late June, you said you believed the victim. Do you still believe her story?

I don’t think it’s relevant whether I believe the victim or not at this point. What matters is what the evidence is, and what would be able to be produced at trial. At this point, I don’t think it’s the appropriate thing to do.

Do you believe that Mark Weiner’s release poses a risk to public safety?

I always have a concern about public safety in cases like this when I make a decision not to prosecute a case. When I make a decision, or when anyone in this office makes a decision not to prosecute, it may have no relationship to what we believe really happened. A decision whether to prosecute is based on whether or not we believe we can prove a case beyond a reasonable doubt. We don’t bring charges that we don’t think we can prove beyond a reasonable doubt.

Did you contact Chelsea Steiniger to notify her of the decision to join the motion and of his possible release?

We’ve been in contact with her.

There are people who believe that this decision was politically motivated. How do you respond to that?

The decision that I made was made because it was the right thing to do. Another prosecutor might have made a very different decision, might have decided to pursue the matter again, might have decided to not to join in the motion. This office doesn’t, shouldn’t and hasn’t operated on the basis of politics. We operate on the basis of what’s the right thing to do in all cases.

Is there anything you wish you had done differently in this case?

I think I handled this case in the way I believed was best for this community and best for this case. Going forward, I want to try to find a way that this doesn’t happen again—the lack of information coming to this office. I’ve talked to the chief to let him know I wanted to change that so we have a better flow of information.

*In the original version of this interview, Lunsford used the term pro se in her response. The term for representing those who cannot afford an attorney is pro bono.