A Judge Jailed an Abuse Survivor Mid-Testimony—for Legal Marijuana Use

    On September 7, a survivor of domestic violence in Virginia was testifying against the man accused of her abuse when she disclosed that she had smoked marijuana earlier that day. Marijuana is legal for adult use in the state, and prosecutors said she did not appear intoxicated. Loudoun County Circuit Court Judge James P. Fisher, however, had her physically removed from the stand and sentenced her to 10 days in jail for contempt of court.

    Virginia has codified reasons for which a judge can jail someone for contempt, like making threats or disobeying a lawful order. Having smoked marijuana outside of court is not among them. Fisher nonetheless refused to rescind the contempt order, and declared a mistrial for the woman’s alleged abuser, who was facing his third domestic violence charge.

    “I have learned that it does no good to report domestic abuse because the system and the courts appear to have no real interest in protecting victims and punishing abusers,” the woman said in a statement. “The judge has sent me a clear message.”

    Little stops judges like Fisher from doing whatever they please. In most states, at least some types of judges are elected by popular vote and can be ousted the same way. But in Virginia and South Carolina, judges are “elected” by legislators.

    The current Counsel is Raymond Morrogh—a man who appears to be Fisher’s close friend.

    In January 2020, Fisher jailed divorce attorney Rachel Virk for contempt of court when she tried to get clarification of a ruling on a motion—an important part of the court process so litigants can be treated fairly when appealing a trial court’s decision. Virk was booked in the local jail as a result, later detailing to reporters how she was strip-searched.

    Fisher’s arbitrary use of his power seem not limited to contempt law. As an elected prosecutor, Fisher only pushed for three years behind bars for a Culpeper police officer who fatally shot an unarmed woman. (A prosecutor does not determine the sentence, but is instrumental in making the case for it.) On September 17 of this year, Judge Fisher sentenced a man to 36 years in prison for nonviolent fraud offenses.

    The only entity holding Fisher accountable is the Judicial Inquiry and Review Commission (JIRC), the state agency charged with investigating judicial misconduct. Such an investigation would need to be initiated by the Commission Counsel, who is effectively head of the agency and functions as the “gatekeeper” of complaints against judges in the state. Without a green light from the Counsel, the Virginia Supreme Court does not discipline judges for misconduct. The current Counsel is Raymond Morrogh—a man who appears to be Fisher’s close friend.

    Morrogh and Fisher have much in common, including a proclivity for harsh penalties around marijuana. Morrogh, a former elected prosecutor, lost re-election to progressive reformer Scott Descano in 2019. One of Descano’s first moves as the new Fairfax County Commonwealth’s Attorney was to announce that he would undo Morrogh’s policy on simple possession charges and drop those cases. (This was prior to marijuana legalization in Virginia, which took effect in July of this year).

    Before Fisher ascended to the bench in 2019, he was the Commonwealth’s Attorney of Fauquier County. He was appointed by a body of local judges in 2011 after his predecessor became a family court judge, then was re-elected without opposition. As a top local prosecutor, Fisher bemoaned former Governor Terry McAuliffe’s restoration of voting rights for people with felony convictions. So did Morrogh.

    “I have learned that it does no good to report domestic abuse.”

    Morrogh, a “tough-on-crime” true believer who chastised US Attorney General Eric Holder for wanting to slightly reduce prison terms for federal drug defendants, seems to be another appointee in Harp’s anti-accountability mold. Due to camaraderie fostered between Commonwealth’s Attorneys when they lobby together for ever-harsher criminal laws, Morrogh’s bias can be expected to especially benefit judges who once served as elected prosecutors.

    JIRC was created as an alternative accountability mechanism to judicial impeachment, which was virtually never used. But it has for decades been a self-serving entity that protects its own and empowers judges to hand out arbitrary punishments. The culture was installed by Reno Harp, III, another former career prosecutor who served as Commission Counsel from 1977 to 1997 and famously liked to find informal ways to get around disciplining judges. When asked if judges commit misconduct in Virginia, Harp told reporters, “It’s not happening. It’s that simple.”

    This stunning lack of oversight leaves those unfortunate enough to appear in Virginia court with Fisher, or judges like him, essentially subject to his whims rather than to the law.



    Photograph via Sacramento County

    • Rory is the founding attorney of Fleming Law LLC, an immigration law boutique in Philadelphia. He has worked for a variety of criminal justice and harm reduction nonprofits, including Law Enforcement Action Partnership and Harvard Law School’s Fair Punishment Project, and provided campaign services for over a dozen district attorney campaigns. His articles have appeared in the Atlantic, Slate and many other outlets.

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