A Loudoun County Circuit Court judge is under fire from county prosecutors after he jailed the alleged victim during a domestic abuse trial when she admitted smoking marijuana before taking the witness stand.
On Sept. 7, Judge James P. Fisher held the 33-year-old Fredericksburg woman in contempt of court after he stopped her about 90 minutes into her testimony to question whether she was intoxicated. During the exchange, she acknowledged smoking marijuana earlier in the day, but was not asked when or how much. Fisher declared her in contempt for misbehavior and “voluntary intoxication” and sentenced her to 10 days in jail—the maximum sentence permitted.
Fisher also declared a mistrial in the case against James Paige Phillips, who is charged with felony assault and battery of a family member, third or subsequent offense. He is accused of punching the woman twice in face while she was driving on Rt. 15. He has pleaded not guilty. A conviction carries a sentence of one to five years in prison.
The alleged victim was removed from the witness box by deputies, ordered transported to an emergency room to draw a blood sample, and then taken to the Adult Detention Center where she was held until released on $1,000 bail two days later.
Both her attorney and the Loudoun County Commonwealth’s Attorney Office filed motions seeking to overturn the contempt conviction. Prosecutors also filed a motion opposing the declaration of a mistrial.
While a hearing is scheduled for Sept. 23 to hear motions related the next steps in Phillips’ case, Fisher wrote in an order that his contempt ruling was final and would not be reconsidered. The challenge has been filed with the Virginia Court of Appeals.
The alleged victim’s attorney Thomas K. Plofchan’s motion to overturn the contempt conviction stated the judge had no authority to issue a summary contempt order “based on the minimal facts presented.” Fisher’s actions “violated and denied the woman’s rights and involved an unconstitutional investigation” without providing his client Maranda rights, he wrote.
In a brief supporting that motion, Assistant Commonwealth’s Attorney Elena R. Ventura wrote that Fisher violated the woman’s rights to due process, writing that the “independent investigation” conducted by the judge is prohibited by the judicial canon of ethics. Fisher was a prosecutor in Loudoun and Fauquier counties before being appoint to the bench in 2019.
Also, prosecutors refuted Fisher’s characterization that she appeared intoxicated, noting that two detectives who interacted with her before she took the stand did not notice any indications of that. They described her as nervous and anxious, as she had been in their previous encounters with her.
Ventura said the woman’s testimony was similar to her preliminary hearing appearance in Juvenile and Domestic Relations Court, when she appeared anxious and nervous and “at times was non-responsive, circuitous and hyper-active.”
In that hearing, Judge Avelina S. Jacobs agreed to send the case to a grand jury, but noted it was “a close call” on whether there was evidence to support the charge, according to a transcript of the hearing.
Phillips and the woman had been living together in Prince William County hotels, and one of Phillip’s two prior abuse convictions involved an altercation with the same woman that occurred just weeks prior to the Loudoun case, according to court filings.
In the Circuit Court trial, Fisher’s questioning occurred as the woman was subject to “intense and assertive questioning focused on drug addiction and infidelity,” Avelina wrote. As the questions became more “harsh and personal,” the woman’s “anxiety increased, and she grew visibly frustrated.”
“In the middle of a difficult and artful cross [examination], she was detained, investigated, arrested, and removed from the courtroom,” Ventura stated in the brief.
Loudoun Commonwealth’s Attorney Buta Biberaj has been criticized for handling of domestic abuse cases, with an activist group citing those concerns among other reasons in an announced recall effort. Ventura’s motion states the judge’s action is likely to make prosecution of such cases even more difficult.
“The witness “was not treated with the respect, sensitivity, or dignity required by law. She was not afforded privacy regarding the results of a drug screen obtained in violation of her Constitutional rights,” Ventura wrote. “Most critically, the court by these actions may create a chilling effect surrounding victims’ willingness to testify in cases of domestic violence, an area of law already replete with victims recanting and/or refusing to cooperate due to the extreme trauma domestic violence victims experience through the cycle of power and control, which especially increases when the victims have mental health concerns, as did [the witness] in the case at bar.”