From: McEachin, Colette W. - Commonwealth Attorney

Sent: Thursday, February 2, 2023 10:06 AM

To: 'lpowell@timesdispatch.com' <lpowell@timesdispatch.com>

Cc: CCoates <CCoates@timesdispatch.com>; 'david.ng@timesdispatch.com' <david.ng@timesdispatch.com>; 'letters@timesdispatch.com' <letters@timesdispatch.com>

Subject: Response to Holley article

Dear Mr. Powell,

I’m writing to correct the inaccuracies and incomplete information contained in your February 1, 2023 article regarding the arrest and prosecution of Oliver Holley.

First, you note that the Commonwealth's Attorney's Office "did not respond to a request for comment" about your story. As the elected Commonwealth's Attorney, I am the head of that agency and ultimately responsible for responding to such inquiries. Had you taken the time to contact me directly, I would have provided you with the following information that would have resulted in a more informed and balanced article.

Second, and contrary to the implications in your article, neither the prosecutor assigned to the case nor our Office had any issue with the legitimacy of the charge in this case. As explained below, our Office's decision not to proceed with the charge against Mr. Holley was wholly and completely unrelated to the implications suggested in your reporting.

This case had a pre-trial motions hearing held last Friday, January 27, 2023. At the conclusion of the hearing, the trial judge ruled that the evidence that led to the police approaching Mr. Holley in the first place would be inadmissible at trial. The Court's ruling was in response to defense counsel's motion, filed less than a week before trial, seeking to exclude the underlying "facts of the call for service" and asserting that such information was irrelevant, hearsay, and prejudicial. The Court's ruling would have restricted the officers to testifying at trial only "that they responded to a service call," but would have precluded any specific testimony that call. In fact, the 911 call for service was for the report of a man in front of a downtown business, acting belligerently and attacking people while armed with a glass bottle. While we disagree with the judge's ruling, we respect the Court's decision.

However, the exclusion of that crucial evidence left our prosecutor in a position in which she would no longer be able to present at trial the context and reported violence that led the officers to approach Mr. Holley. Without that relevant information, it would have appeared to a jury that police officers approached Mr. Holley for no good reason, instead of approaching him because he presented a danger to himself or others. Consequently, the prosecutor chose appropriately not to proceed to trial and to nolle pros the charge. Prosecutors are required to present "good cause," when they move to nolle pros a case, and Ms. Wildeus correctly stated "evidentiary issues" as the basis for good cause. However, the evidentiary issues were not issues of questioning the officers' factual account but rather the exclusion of important evidence. It is unclear from your article as to whether you relied solely upon the public defender's recollection of these events or whether you availed yourself of the opportunity to actually attend the hearing where this ruling was made and to view the pleadings and orders which are publicly available at the Clerk's Office.

The Times-Dispatch also reported that Ms. Wildeus said she was "uncomfortable" moving forward with a misdemeanor disorderly conduct charge, thus insinuating that the initial felony assault charge was also without merit. To the contrary, Ms. Wildeus’ reservations were rooted in her correct analysis of the disorderly conduct statute (Virginia Code § 18.2-415(B)), which states, in part, that the conduct described in the statute shall not be deemed “to include conduct otherwise made punishable under this title.” Thus, her concerns were not as, your article states, about “a case with allegations that made even the prosecutor feel ‘uncomfortable,’” but rather about whether the law precluded a prosecution for disorderly conduct in this case since Mr. Holley had already been charged with felony assault on law enforcement—“conduct otherwise made punishable under this title.”

Finally, your description that the public defender "lambasted the Commonwealth prosecutors for dragging out Holley's case despite 'evidence that there was no crime committed'" begs several questions. This offense occurred on June 5, 2022. Ms. Shapiro's office was appointed to represent Mr. Holley at his initial court appearance on June 8, 2022. The Commonwealth's Attorney's Office sent the body worn camera footage to the Public Defender's Office on June 15, 2022. Ms. Shapiro appeared in court as Mr. Holley's attorney on July 6, 2022 and requested more time to view the body worn camera footage. The public defender had seven months to review the footage and make any motions regarding the case, yet waited until less than a week before trial. Any legal procrastination lays at the feet of the public defender.

The fact that the bodycam footage did not capture the assault is certainly helpful to the defense, but this is neither a surprise nor a novel issue; it is not proof that "no crime was committed." The body cameras that officers wear do not always capture every action that occurs during an incident. This is because the body cameras can be jostled and their video obscured at times, particularly when an individual struggles with the police as Mr. Holley did. Your article notes that the body camera footage was shown to a different prosecutor at a "pre-trial" hearing in August. Your article does not explain that it was our Office that sent that the camera footage to the public defender in the first place. Also, the "pre-trial" hearing was actually a preliminary hearing where the public defender presumably showed the footage to the General District Court judge. Regardless, the General District Court judge found probable cause to believe the assault had been committed and certified the charge to the Grand Jury. While a finding of probable cause at this stage of a case is not dispositive, neither is the absence of visible evidence of a specific action on body worn footage. All of these facts have been publicly available during the history of the case and were accessible by you to inform your reporting.

The public defender stated that her "concern is that this particular officer uses this charge to force people to plea." It is noteworthy that Officer Yoon did not take out a charge against Mr. Holley for assaulting him, but rather for assaulting Officer Yoon's partner. The Richmond Commonwealth's Attorney's Office is charged with administering justice and is ultimately the sole arbiter of whether a plea is offered in a criminal case. No law enforcement officer can force a person to plead to anything. If the public defender has evidence—not conjecture and speculation—that Officer Yoon uses unfounded or unsupported charges "to force people to plea," I urge her to present that evidence.

I hope that the length and detail of this response corrects the misperceptions created by the Times-Dispatch's coverage of this case. Against the backdrop of current events involving police and citizen interactions, it is important that reporting be not only factual, but unbiased and balanced. I hope that the thoughtful and impartial reporting that the Richmond community relies upon will lead you to dedicate as much space to this response as you did to your initial report.

Please feel free to contact me directly at Colette.mceachin@rva.gov or (804)646-4845 if you have any questions about this or any other case in the future.

Sincerely,

Colette Wallace McEachin