October 30, 2015 -- Charlottesville, VA
Denise Lunsford for Commonwealth's Attorney
1241 Loring Run
Charlottesville, VA 22901
Dear Mr. Cross,
This letter responds to your letter "RE: Political Ad" that was sent to the Robert Tracci for Commonwealth's Attorney campaign earlier today. In the letter, you assert that a political advertisement in which the sister of Mark Weiner expresses her opinion that Denise Lunsford "withheld evidence that exonerated" her brother is "false and defamatory." You next claim that these statements "could show bad faith or reckless disregard for the truth." These claims are meritless.
As you know, the handling of the Mark Weiner case by Albemarle Commonwealth's Attorney candidate, Denise Lunsford, has generated local and national media attention. Lisa Provence, of C-ville Weekly, has covered this case extensively, as has Rob Shilling of WINA, The Richmond Times, Washington Post, Slate.com and others. These sources have emphasized the failure of the Commonwealth's Attorney to disclose key evidence in this case.
C-VILLE Weekly/Lisa Provence
According to a June 18, 2014 C-VILLE Weekly article written by Lisa Provence:
"Lunsford asked two local detectives to analyze the cell tower records [suggesting that the alleged victim's testimony about her location on the night of the alleged testimony was questionable]. Charlottesville Detective Blaine Cosgrove was the first, according to Childress, and he told Lunsford there was a problem with the case, concluding that the tower records suggested the text messages were not sent from the abandoned house as Steiniger claimed, but more likely originated from her mother’s address. According to Childress, during the trial, Lunsford then consulted Albemarle Police Detective Mark Belew, who came to the same conclusion. Lunsford did not call either detective to testify, and when Childress tried to call Cosgrove as a defense witness, Lunsford had him disqualified as an expert." As a result, the jury did not hear their testimony concerning the cell phone records in this case. Later in the article, Ms. Provence states that Mr. Weiner's appellate team asserted that "Lunsford allowed Steiniger to testify falsely and failed to disclose exculpatory evidence, including the cell phone records that indicated Steiniger used her phone during a period when she said its battery was dead." "An innocent man? Mark Weiner case sparks legal furor as claims of a wrongful conviction precede sentencing," C-VILLE Weekly, Lisa Provence, June 18, 2014.
Slate.com/Dahlia Lithwick/Deirdre Enright/UVA Innocence Project
In a July 16, 2015 article titled "When Prosecutors Believe the Unbelievable," Ms. Lithwick cited "deepening concern about the state's persistence in going after [Mr. Weiner] . . . even in the face of a growing mountain of exculpatory evidence" and stated "the fact that there was a trial at all is remarkable.
According to Lithwick:
“Lunsford sought the advice of two respected detectives in the city and the county to pinpoint where the alleged victim’s text messages had originated. Each cop concluded independently that the texts had been sent from near where Steiniger's mother lived. Lunsford interviewed the first officer for the first time at the courthouse, just before he was scheduled to testify. He told the prosecutor he’d guess the calls came from Steiniger’s mother’s house, not the abandoned property. Some prosecutors would call that sort of thing exculpatory information that must legally be turned over to the defense. Lunsford thanked the officer for stopping by and said she would no longer be needing his testimony after all. (This officer would later call the defense attorney and tell him what had transpired.) The second law enforcement officer offered up the same conclusion. He didn’t get to testify, either."
"When defense counsel learned of the cell phone evidence and attempted to use one of the detectives as a defense witness, Lunsford had him disqualified as an expert, objecting to the fact that the defense attorney hadn’t subpoenaed the right witnesses to get the phone record evidence in. When the defense lawyer asked in chambers for a continuance so that he could call the correct witnesses, the motion was denied by trial court Judge Cheryl Higgins.” Jurors would never hear what the phone tower records showed. “Local lawyers and trial observers were shocked." [Emphasis mine.]
"When Prosecutors Believe the Unbelievable," Dahlia Lithwick, Slate.com, July 16, 2015.
The article further states: "Deirdre Enright, director of investigation for the University of Virginia School of Law’s Innocence Project Clinic, notes that this is where the idea of justice got confused with the promise of winning. As she says, 'Lunsford appears to have learned in the middle of her case against Mark that the ‘victim’s’ cell phone tower records contradicted the victim's version of events, and corroborated the defendant’s. Leaving aside the fact that a competent prosecutor is not learning the underlying facts of her case mid-trial, this was the kind of exculpatory evidence that would cause a fair prosecutor, honoring her obligation to seek and serve justice, to dismiss the charge. Instead, she successfully argued against their admissibility in court.'" Emphasis Added.
"Lunsford claimed this week in a radio interview that the commonwealth needed to vacate the conviction based on preserving the ‘integrity of the system’ and the ‘perception of the system as being fair’.” But none of this explains why the prosecutor’s office deemed a subsequent drug charge to be more disqualifying than contemporaneous phone records, impeachment testimony, expert testimony, and other exculpatory evidence that had not only been dismissed, but in some cases excluded, by the prosecutor’s office for more than two years." Id.
University of Michigan School of Law National Registry of Exonerations
Your assertions that Mark Weiner's sister's statements are defamatory or made with "reckless disregard for the truth" are also contradicted by the University of Michigan School of Law National Registry of Exonerations, which added Mark Weiner to its National Registry. Citing "official misconduct" as one of the contributing causes of Mr. Weiner's wrongful conviction, the University of Michigan School of Law concluded: "The prosecution had obtained the records, but had not disclosed the records to Weiner’s lawyer . . . ."
Given extensive media coverage of Ms. Lunsford's handling of the Mark Weiner prosecution, and, extensive media accounts of her office's failure to disclose key evidence in this case, the claims made in your letter are without legal merit. They also appear calculated to stifle important public debate and discussion about the handling of this case by a public official charged with seeking justice on behalf of Albemarle citizens.
Thank you for your attention to this matter.