Loudoun Prosecutor Strikes Blow in Fight Against Domestic Violence
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For Immediate Release
April 27, 2018
Contact: Heather F. Williamson Commonwealth’s Attorney’s Office
20 East Market Street Leesburg, VA 20176-2809
Loudoun Prosecutor Strikes Blow in Fight Against Domestic Violence; Court of Appeals Sets Binding Authority in Published Opinion
LEESBURG, Virginia – April 27, 2018. On April 17, 2018, the Virginia Court of Appeals issued a Published Opinion in the case of Commonwealth of Virginia vs. Kevin Cody, which addressed the principle of “forfeiture by wrongdoing.” The Case was on appeal from the Circuit Court of Loudoun County after Cody was convicted in February 2017 of Strangulation, Domestic Assault and five counts of Violation of a Protective Order, despite the fact that the victim, the mother of Cody’s two children, refused to testify against him. Judge Jeanette Irby sentenced Cody to an active sentence of 2 years and 11 months in the penitentiary. “This is a landmark decision for Virginia prosecutors, who have never had these issues entirely settled in the Courts,” said Commonwealth’s Attorney Jim Plowman. “The application of this case, setting the precedent for future trials, is a game-changer in the fight against domestic violence.”
When the crime was first committed, the victim was cooperative; telling the Loudoun County Sheriff’s Office and a nurse who treated her for injuries arising from the attack, that Cody had punched her in the chest and her left side, stepped on her back and strangled her until she lost consciousness. She also reported that Cody had been physically abusing her for many years. Cody was arrested and held without bond pending the trial. During that time, Cody repeatedly called the victim from the jail, each time either begging her, pressuring her or threatening her to stop cooperating with the prosecution against him by refusing to testify.
Due to Cody’s relentless badgering, the victim refused to testify or cooperate with prosecutors. Senior Assistant Commonwealth’s Attorney, Don Goodman launched a series of motions under the legal theory of “forfeiture by wrongdoing” aimed at allowing the nurse and law enforcement to testify at the trial concerning the statements that the victim made to them about the abuse at the hands of Cody. The Circuit Court granted those motions and Cody was convicted.
In the Opinion, the Court of Appeals stated, “Differing from other cases applying forfeiture by wrongdoing to an unavailable witness’ out-of-court statements, the present case concerns Cody’s procurement of [the victim’s] Fifth Amendment unavailability – a case of first impression in the Commonwealth.”
The idea behind forfeiture by wrongdoing is that a defendant shall not benefit where they have significantly interfered with the appearance of a witness, including the exercise of persuasion and control over that witness. This permits a victim’s statements to be used in trial if the abuser is the cause of their refusal to testify.
“Senior Assistant Commonwealth’s Attorney, Don Goodman and Assistant Commonwealth Attorney, Josh Steward have been at the forefront of this issue, conducting training for prosecutors statewide on the application of this legal principle. Now, the full force of the Courts have embraced it in a detailed, published and binding Opinion to serve as a guide for future cases,” Plowman continued. “This case has been immediately recognized by prosecutors statewide,” Plowman added. “I have already received emails from other Commonwealth’s Attorneys from around the state thanking us for this tool that can now be used to convict an abuser who tries to intimidate his victim into silence.”
A review of the complete Court of Appeals Published Opinion can be found here.
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