WOODSTOCK — A judge dismissed a man’s charge Tuesday to let the prosecutor, who disclosed she received potential evidence the day before trial, bring the case back later.
Jonathan Jerome Judy, 44, of Maysville, West Virginia, appeared in Shenandoah County Circuit Court to face trial on a felony count of strangulation. Authorities accuse Judy of strangling a woman on June 28, 2017. Judy was arrested on the charge Nov. 13, 2017. A grand jury indicted Judy more than a year later on one count of felony strangulation Dec. 12. Judy pleaded not guilty at his arraignment March 6. The case was continued several times until Tuesday.
Commonwealth’s Attorney Amanda Wiseley made a motion before Judge Kevin C. Black to dismiss the case by order of nolle prosequi — a request that, if granted, means the state agrees not to prosecute the case at this time. The order allows the state to revive the charges in the future if desired. Prosecutors usually make such motions as part of plea deals. Prosecutors rarely revive charges dismissed under such orders and seldom do defense attorneys object to such a request.
Wiseley told Black she wanted to dismiss the charge at this time because her office received potential evidence — photographs and a recording of a jailhouse phone call — at 9:30 p.m. Monday. Wiseley added that there is supposed to be a report made by forensic nurse Betty Fisher who examined the alleged victim in the case. The prosecutor said she has yet to receive the report, if it exists.
Attorney Dragana McCleary objected to Wiseley’s motion and told the court the defense was ready to go to trial. McCleary advised Black that Judge Clark A. Ritchie had ordered the prosecutor on Dec. 12 to provide any potential evidence to the defense by Jan. 2.
Wiseley told the court she didn’t plan to use the recently received items at trial. McClearly argued that it did not matter if Wiseley intended to use the material or not. The law and Ritchie’s order required the prosecutor to provide any potential evidence to the defense, McCleary said. The defense attorney added that she needs to see any and all potential evidence to prepare for her client’s trial.
The defense has not receive any discovery material in the case from the prosecutor, McCleary said. Wiseley’s motion to dismiss is for lack of preparation and not for good cause, McClearly argued.
“I’m not saying that Mrs. Wiseley has been sitting on these pictures, photographs, scientific labs or medical records, but we’ve had this trial set for two months and it was actually set for jury trial and I think it’s very prejudicial to my client if you nolle pross this case you basically grant her a continuance to prepare for trial that they’re not prepared for today,” McCleary argued.
The court had the option to dismiss the case for lack of compliance with the discovery order, grant a continuance on behalf of the defense or exclude from trial any evidence not provided to the client’s counsel, McCleary said. McCleary did not seek a continuance.
Dismissal for good cause usually only applies in cases where, for example, the prosecution finds potential evidence not otherwise known, McCleary said. But Wiseley’s office has known about the evidence in question, McCleary said.
Wiseley said McCleary’s arguments seemed “disingenuous” because the defense attorney never notified the prosecutor’s office that she had not received discovery materials. Wiseley told Black she was willing to hand over any of the material she received Monday. The prosecutor said she had not yet received Fisher’s report.
Wiseley again asked the court to dismiss the case. McCleary reiterated her argument that a dismissal on behalf of the prosecution or a continuance would prejudice her client. Black asked how the lack of discovery evidence would hurt her client’s case. McCleary said the defense’s case might have been different had she received the discovery evidence.
McCleary went on to argue that the law specifically requires the prosecutor to provide to the defense any medical report made in a case involving a victim. Black asked if the prosecutor has to know such a report exists in order to provide it to the defense. McCleary pointed out that the police report filed in Judy’s case notes that a forensic nurse did complete a medical examination of the alleged victim.
Wiseley called McCleary’s arguments an “ambush” and said the defense attorney had not contacted her to request discovery information. Black sided with Wiseley.
“It seems like to me there’s some good-faith aspect on the defense side to make a request if there’s something you think is indicated that’s out there and ... the defense just sits around and goes ‘Ha, I’m gonna lay this trap,’” Black said. “Isn’t that the case?”
McCleary said it’s not a trap when the prosecutor waits until the last day to inform the defense that it has discovery evidence.
Black explained that Wiseley said the phone call recordings are new to her. But, in the case of the medical report, the defense didn’t ask for the document identified in the police report.
“Isn’t it a two-way street here?” Black asked.
Usually a discovery response comes with a cover sheet on which the prosecutor checks types of items such as police reports, recordings and other materials as provided, McCleary explained. None of the boxes were checked, McCleary said. The defense attorney argued that she shouldn’t have to ask the prosecutor repeatedly for discovery materials. Wiseley interjected and told Black that McCleary had the police report for months.
“There’s no such rule here that I have to go scavenge for discovery that they have,” McCleary said.
“Usually they don’t have it and as of today she even said I didn’t have it until yesterday so, what, am I suppose to go in every day to ask ‘well, do you have it, do you have it, do you have?’” McCleary said. “That is not appropriate practice of law in this court.”
Black recessed to his chambers to consider motions by both parties.
Black returned and denied McCleary’s motion to dismiss the case.
“That remedy would be completely disproportionate to any alleged wrong that occurred,” Black said. “If there’s a discovery failure here, it’s certainly not willful by the commonwealth.
“I mean, this isn’t a case where there’s some active failure to disclose and it’s really unclear to me ... I mean, I think there’s some duty but to what level there was any failure on the part of the commonwealth I’m not sure ... it rises to the level of any culpability,” Black added.
The judge went on to say that Wiseley’s motion to not prosecute the case benefits the defendant and added that he saw no reason to not proceed to trial. But Black then said he hadn’t investigated how such action would benefit or harm either party. The judge said that the defendant could benefit from the dismissal because that would provide additional time to see potential evidence that might help him if Wiseley intends to bring the charges back.