Two weeks ago a judge dismissed a perjury charge against whites-righter Jason Kessler because the prosecution didn’t establish that the alleged crime took place in Albemarle. Legal pundits decried the misstep as a rookie move.
Commonwealth’s Attorney Robert Tracci filed a motion to vacate that decision April 3, claiming that Judge Cheryl Higgins erred twice in her decision to dismiss, and now local legal pundits are again abuzz about whether the unusual move has a chance to bring Kessler back to trial, despite the specter of double jeopardy.
The perjury charge stems from Kessler swearing to a magistrate that Jay Taylor assaulted him on the Downtown Mall in January 2017 as Kessler collected signatures for a petition to remove then vice-mayor Wes Bellamy from office. Taylor was charged, but the Charlottesville prosecutor said she dismissed the complaint because video did not support Kessler’s allegation that he was assaulted.
Kessler was convicted of slugging Taylor, a misdemeanor, on April 6, 2017, and given a 30-day suspended sentence.
Tracci had rested his case against Kessler March 20 when defense attorney Mike Hallahan moved to strike the charge because Tracci did not establish that the alleged crime took place in Albemarle County, where the magistrate’s office is located.
Higgins took the motion under advisement and the defense continued with its case. Before it could go to the jury, Higgins dismissed the charge.
“Venue is not an element of the offense,” says legal expert Dave Heilberg. It’s a procedural determination and the judge could have taken judicial notice that it’s common knowledge the magistrate’s office is in the county at the Albemarle-Charlottesville Regional Jail on Avon Street.
“It was a dismissal on other than the merits,” says Heilberg. “If the decision had been made on the merits, the commonwealth can’t appeal.”
“This case is atypical because it involves an erroneous ruling on venue, a matter unrelated to Kessler’s guilt or innocence, that the commonwealth must address as its prosecution progresses,” says the motion.
Tracci argues in the motion that venue was established by the defense, and the court must consider the entire proceedings, not just the prosecution’s case.
He points to a Supreme Court of Virginia ruling that dismissal on venue does not constitute double jeopardy and the commonwealth can prosecute Kessler on a substitute indictment.
According to Heilberg, it will all come down to the definition of “pre-trial.” According to state statute, in a felony case a pre-trial appeal may be made. “Is it still pre-trial if you didn’t take it to the jury?” he asks.
A judge dismissing a case because of venue is rare, and in his 39 years of practicing law, Heilberg can count easily the number of times he’s seen it: “never.” He says it must happen because otherwise, “there wouldn’t be these appellate cases in Virginia if it hadn’t.”
As for the odds Higgins will vacate her own ruling and concede she made a mistake, says Heilberg, “She’s very careful.”
He says, “Like lawyers, judges are not perfect. Venue is tricky and doesn’t come up that often.”
Neither Kessler nor his attorney, Hallahan, returned phone calls seeking their response to the latest turn of events.
Tracci has asked Higgins to make a decision by April 10.
And in other Kessler litigation news, Taylor filed a civil complaint against Kessler April 3, according to court records.