Prosecutors weren’t allowed to drop charge
Richmond prosecutors were unauthorized under state law to dismiss an assault charge against a city police officer after he agreed to pay his victim's medical costs, Richmond's top prosecutor acknowledged yesterday.
Richmond Commonwealth's Attorney Michael N. Herring said his chief deputy earlier this year approved the agreement between the officer, Ian McCloskey, and the victim of the Jan. 22 assault at Wonderland bar in Shockoe Bottom.
On Thursday, prosecutors charged McCloskey and two other city officers in an alleged cover-up. Herring said the Richmond Police Department failed to inform prosecutors that the two other officers, Floyd T. Campbell II and William A. House, had failed to report the assault or properly investigate it.
Under the July agreement, called an "accord and satisfaction," the assault charge was dismissed with the understanding that McCloskey would pay the victim $5,000.
Such agreements in misdemeanor cases are permitted under Virginia law. But they are not allowed in cases when "the offense was committed by or upon any law-enforcement officer," according to state code.
Herring discovered the exceptionfor police officers yesterday.
"It looks like it should not have been done," he said of the agreement.
Herring said the agreement between McCloskey and the victim was overseen by Chief Deputy Commonwealth's Attorney Matthew P. Geary, with Herring's approval, and it was also approved by Richmond Circuit Judge Walter W. Stout III.
John Rockecharlie, a defense attorney who represented McCloskey in the assault case, disagrees that the police officer exemption applied to McCloskey, noting that he was off-duty and out of uniform at the time of the beating.
"When this happened, Ian McCloskey was not cloaked in his color of authority as a law-enforcement officer," Rockecharlie said.
Carl Tobias, a University of Rich-- mond law professor, agreed with Herring's reading of the law and said the exemption for police officers appears to invalidate the restitution agreement.
On Thursday, Herring disclosed details of the case against McCloskey, House and Campbell.
McCloskey is accused of threatening a witness after the beating at Wonderland. House and Campbell are accused of failing to file a report or to properly investigate the assault charge against McCloskey.
Herring said Thursday that his office made the mistake of charging McCloskey with a misdemeanor when prosecutors should have charged him with felony assault, given the severity of the victim's injury and the fact that the attack was unprovoked. He also said his chief deputy, Geary, erred in having the charge dismissed.
Herring said he wasn't aware of the alleged cover-up at the time McCloskey was charged with assault -- in March -- or when the charge was dismissed in July. He said Geary knew about "a fraction" of the cover-up.
Geary could not be reached for comment yesterday or Thursday.
A phone message seeking comment from former Police Chief Rodney Monroe was not returned yesterday. He left Richmond in June to be chief in Charlotte-Mecklenburg County, N.C.
David M. Hicks, Herring's predecessor as commonwealth's attorney, said prosecutors are supposed to treat all defendants equally.
He added, "Whenever anything involves a police officer, it's strange . . . to assert that the highest level of the prosecutors' office isn't aware."
Herring has said he learned two or three months ago about the actions that led to the obstruction charges. He said he decided to charge the officers on Thursday before assigning a special prosecutor because the one-year statute of limitations was fast approaching.
A special prosecutor outside the Richmond metro area has agreed to take the case, but Herring did not identify him.
Steve Benjamin, a lawyer who has challenged police conduct in the past, said he believes that most of Richmond's police officers are honest and hard-working.
"The problem in this city has been the city has permitted its officers to remain above the law," Benjamin said. "And some officers believe they are above the law."
Police Chief Bryan T. Norwood, who started last month, did not respond to e-mail questions or a telephone message about the case.
Asked whether the officers remain on duty, police officials yesterday released the following statement: "It's being handled as a personnel matter internally."
Contact Reed Williams at (804) 649-6332 or
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Reader Reactions
bluecollar:
Your attempts to dismiss and defend these actions only support feelings of suspicion towards the department as whole.
There’s no possible excuse for deletion of a report involving a crime committed by any LEO—especially one from the same agency that’s writing the report. Failure to call in a supervisor once McCloskey was identified speaks volumes to the intentions of all 3. (not to mention the dismissal and threat to the eyewitness)
A $7.00/hour temp would be fired immediately for anything so irresponsible. (Something that I hope all three parties will soon be learning firsthand)
Your contention that the victim didn’t want to press charges is hardly supported by the plea agreement, given that he contacted Internal Affairs. Who is to say that Internal Affairs didn’t try to downgrade this themselves? After all, they didn’t report the coverup to the Commonwealth Attorney. Even if the victim wished to withold charges, the fact that an LEO was the perpetrator makes this a matter of public interest…thus the law against dismissing the charge.
Anyone can understand the comraderie among LEO’s and the idea that someone may have saved your life in the past or may do so in the future. If you’ve been saved by a fellow officer, great. Reward him with something that is YOURS to give. A free pass from the enforcement of the law is not on your plate. The internal investigation is already a buffer that most civilians would be jealous of.
As for someone who may save you in the future, McCloskey should not have that opportunity. This incident would disqualify him permanently (if civilian)for a concealed weapon permit. How in the world can a badge, or a paycheck attached to public trust, be justified?
Incidents like this, and attempts by folks like you to make it seem not-so-bad, present the public with some difficult decisions. The only way to fight folks who stick together is to punish them all, regardless of involvement. It helps groups of soldiers learn self-regulation, and I’m sure it would have a similar effect on police officers—particularly if it threatened their collective bargaining, or expanded the special prosecutor’s role into a corruption witch hunt.
Another problem that your views present is the spectre of putting honest officers (particularly younger, less-experienced ones) in compromising positions. When your job is to enforce the law, even a small lapse of honesty can be a potent source of blackmail in the future. I’m sure this is why Frank Serpico told the Knapp Commission that the honest officer fears the dishonest, and not vice versa.
I do agree with you that the Commonwealth Attorney deserves a greater share of the blame. But remember that Herring ran on a platform of better relations with RPD—in reaction to the tension between RPD at all levels and David Hicks. He may be well be hedging on the discipline of his deputy because of his own past hopes or attempts to make this go away. I’m with you all the way on that—but not as a mitigation to police behavior.
No one says that your job is easy or that you get the appreciation, respect or compensation that the position should carry. But there are troubling and justified questions about officer conduct, and excuses are being substitued for answers.
ridor9th:
This is my point exactly. The police department did not take out the warrants for the officers the common wealth indicted him. Being that prosecuting law is their job you would think they know a aggravated assult when they saw on. When reporting an aggravated assault witnesses aren’t really required to convict all you need is the statement from the victim stating that he/she was assulted and and that the injuries substained were etc. I think you may have been misunderstood about the report not being completed. The article states that the intial report was deleted which could have been for many reasons. example: The intital report may not have had the officer listed as a offender or because of his offical capcity the title of the report may have need to be changed.
It is my understanding that the victim did not wish to press charges and this is supported by the plea agreement that was made. Not sure if you saw it on the new but the victim himself stated that he did not wish to press charges but merely have his medical bills paid.
who is to say that the officer that was invovled with the incident had anything to do with how the other two officers reported. Each person is their own individual. and dispite what people may think not every officer knows eachother or hang out. Yes officers do look out for eachother, but in a law enforcement proffession that is somthing that officers are expected to do in the performance of their duty. When you don’t want to hem up the person that you may need to save your life in the future.
The idea that police officer is a civilian when off-duty is specious at best. Even off-duty, most if not all LEO’s are in possesion of badge & gun, and still enjoy the inside relationships that make this sort of situation possible.
The fact that it was an off-duty assault is not mitigating—in fact, it removes all possible excuses. Not only did the beating have no physical provocation, but McCloskey was not acting in the line of duty and had no need to stand his ground. In fact, he was invading the space of two people who had been minding their own business before he arrived.
But just for the sake of argument, let’s say that being off-duty made McCloskey a civilian, and that this was a simple assault. (ROTFL) If McCloskey had his weapon concealed on him, he would be breaking the law as a ‘civilian’ by taking it into a place that serves alcohol. This would disqualify him for a concealed weapon permit, both as a violation of the permit’s terms and as a crime. Not to mention that he committed a violent crime (even a misdemeanor) while possessing it.
Also the assault was domestic in nature (he started the incident by accosting his old girlfriend and ended it by assaulting her new boyfriend) and this would probably disqualify him on its own—even if he were unarmed at the time.
Going along with the coverup is a crime of moral turpitude, which pretty much eliminates the ‘good character’ requirement. It got Ollie North’s application rejected in Loudoun.
All that is to illustrate why McCloskey would not qualify—even as a civilian—to carry a concealed weapon. How does giving him a badge make this better?
Oh, and the ethical breach would disqualify him for any number of jobs with lower pay and lesser responsibilities. Garbage man, admittedly is not one of them, and I sincerely hope to see him in this profession ASAP.
Dishonest and aggressively violent—in front of witnesses. It seems to me that this is administrative grounds for firing him regardless of any criminal case.
blue collar: you said that blood & stitch equals felony.
why was not mccloskey indicted with felony count? why misdemeanor? not only that, i’m asking you a question: why did these two officers try to conceal and did not report the incident int he first place?
You can yak all you want but the facts remain the same: The cops protect each other, rights for others do not matter at all.
R-
if the assaulting civilian(he WAS off duty) was a garbage truck driver who was friends or related to the non-reporting officers, nobody would be calling for him to get fired.
the two who didn’t do their duty are the only ones who should be out for the cover-up.
again, and of course if he’s found guilty of a felony then he should turn in his badge.
Actually, it wasn’t a ‘bar tussle’. McCloskey assaulted someone who had not attacked him and who did not fight back.
Also, there IS reason to fire him even if cleared criminally. It took place and was witnessed. There’s no ‘he said/she said’ in this case.
But you’re right in saying that the coverup is way more a problem. Same situation with the Verlon Johnson shooting. The shooting itself was probably just a mistake, but all the on-scene officers with situational blindness & amnesia were pretty scary.
And coverups abound. A police car was stolen on the night of June 17th, and I can find nothing in the press or in crime stats. It was a marked car, and was assigned to a ranking officer, probably Lt. or above. Worse than that, Capitol PD and Henrico PD also knew about it and nothing has been said. The Times-Dispatch has also failed to investigate.
it ain’t the crime - it’s the cover-up
ask nixon, clinton and bushII -
it was a bar tussle, somebody’s bound to get busted up… but the two officers that tried to conceal it made it a “civil rights” case. they need to be off the force
The Common Wealth stated that he only became aware of this mistake recently, but it would be common sense to a established attorney. Blood and stitched = felony. Is the first malicious wounding case that he has ever prosecuted I think not. He was well aware of the nature of the crime why else would the officer be ordered to pay $5000 for medical expenses. Sound to me like everyone is pointing the finger. The police department handles the internal investigation and the common wealth handles the criminal. If officer McClowsky was cleared criminally for his personal matter there would be no reason for the police department to fire him. Therefore if the common wealth had performed there duties we wouldnt be reading this in the times
Some very interesting info and the option of relating stories of positive police conduct as well as negative.
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