When Prosecutors Lie and Judges Collude: Denise Lunsford, Cheryl V. Higgins, and the Wrongful Conviction of Mark Weiner

On Tuesday, July 14, Mark Weiner exited the regional jail in Charlottesville, Virginia, having been incarcerated there for a crime he never committed. He was facing nearly a decade in prison after being falsely accused of kidnapping and sexually assaulting a woman in Charlottesville, a woman who had requested a ride, and then proceeded to lie to police and the courts about what happened.

The case was bizarre from the beginning, and the entire story is told masterfully by Slate’s Dahlia Lithwick, a Charlottesville resident who was skeptical about the case from the beginning, and whose July 16 account pretty much tells us what we need to know about the case. Lithwick’s story also tells us what happens when prosecutors decide to pursue false cases using flimsy evidence, and when judges decide to collude with prosecutors to keep exculpatory evidence from reaching jurors.

As Lithwick writes, for all of the accolades about “the system worked,” it clearly did not in the wrongful conviction and imprisonment of Mark Weiner, who lost his livelihood, was removed from his wife and son, and faces grim prospects for employment at age 55. Lithwick cannot be more forceful in her condemnation of what happened, writing: “If anyone suggests this means ‘the system works,’ I fear that I will have to punch him in the neck.” Swords into Plowshares Ron Paul Best Price: $1.69 Buy New $15.99 (as of 11:50 EDT - Details)

It is hard to know where to begin, so I will allow Lithwick’s account to lay out how this travesty of justice originated:

Three years ago, one of the strangest criminal cases in recent memory began in Charlottesville, Virginia, where I live, when a young woman sent a series of text messages telling her boyfriend that a man had abducted her, followed by a series of texts, allegedly from her captor, taunting her boyfriend with threats of sexual violence. Her story was strange, and the case was fraught with complications from the get-go, but the accused ended up in prison long after the doubts outweighed the evidence.

The woman, then-20-year-old Chelsea Steiniger, was walking to her mother’s house near midnight in December 2012. She had fought with her boyfriend and he said she could not spend the night at his apartment. Weiner, then a manager at a local Food Lion story, saw her walking, asked if she wanted a ride, and she got into his car. Weiner testified that he dropped her off at his mother’s house; Steiniger gave a different account. Lithwick writes:

Most of the rest of the trial narrative unfolds through the sequence of texts Steiniger sent her boyfriend as they drove to her mom’s place.

At 12:10 a.m., Steiniger texted her boyfriend that “some dud[e]” was giving her a ride. At 12:18 a.m., she texted, “he tried to get in my pants.” At 12:21 a.m., she texted, “just pulled up he wont let me out of the car.”

At 12:23 a.m., the texts allegedly start coming from Weiner instead of Steiniger, the first one reading: “[S]he doesn’t have her phone.” And at 12:27: “Shes so sexy when shes passed out.” At 12:28: “She was a fighter ill give her that much.” At 12:36: “Ill let her wake before i let you talk to her.”

When a panicking Mills texted back at 12:38 a.m., “w[h]ere are you taking her,” Weiner allegedly responded: “[S]hes in my house she said she was cold so IMMa warm her up.”

Steiniger testified that Weiner, while driving past the mother’s house, managed to knock her out at about 12:22 a.m. with a chemical-soaked cloth that worked in 15 seconds, at which point he began sending the taunting texts to Mills. Including a text using the word IMMa—not the most common expression for white, 52-year-old Food Lion managers.

That’s right: Over the course of four minutes, Weiner allegedly incapacitated Steiniger, took control of her phone, and texted her boyfriend, all while driving to a rural property late at night. Fintie Folio Case for ... Buy New $7.99 (as of 06:40 EDT - Details)

Steiniger claimed she awoke on the floor of an abandoned building she had never seen before, and when Weiner left her unattended, she grabbed her phone and jumped off a second-floor balcony, hid in the woods, then made her way on foot to her mother’s house two miles away. She never called 911.

However, as Lithwick points out, Steiniger’s boyfriend did call the police, and an investigation quickly followed:

When the police were unable to reach Steiniger by phone, they went to her mother’s home. Steiniger answered the door, clothes intact and unsoiled after she supposedly jumped from a second-floor balcony and walked two miles in the cold.

On Dec. 14, 2012, Mark Weiner was arrested. He had been incarcerated in the Albemarle-Charlottesville Regional Jail ever since.

Enter the district attorney for Albemarle County, Virginia, Denise Lunsford. A Democrat who first was elected to her office in 2007 (and re-elected in 2011), Lunsford believed Steiniger’s story and plowed forward to put Weiner on trial in May 2013. There was a serious problem in Steiniger’s account, however, one that would leave much of the legal community in Charlottesville (and at least one local newspaper reporter, Lisa Provence) seriously doubting the entire story. Writes Lithwick:

Records later showed that Steiniger’s phone accessed two cellphone towers near her mother’s house dozens of times that night, but never once pinged a tower near the abandoned house.

In other words, there was irrefutable electronic evidence that a huge portion of Steiniger’s story was untrue, evidence that should have given Lunsford pause, and certainly did cause doubt with some of the local police. The district attorney asked two detectives, one from Charlottesville and one with Albemarle County, to look at the cellphone records, Lithwick writes:

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.

Instead of taking a hard look at this important evidence, Lunsford told the officers that their testimony would not be needed, and when the defense found out about this evidence from one of the detectives, Lunsford got the trial Kindle Paperwhite E-re... Best Price: $71.49 (as of 04:55 EDT - Details) judge, Cheryl V. Higgins, a Republican, to keep the cellphone records out of the evidence pool altogether. (Who says that Republicans and Democrats cannot work together?)

One has to step back and realize what Higgins and Lunsford managed to do. Here was important, game-changing evidence that proved – yes, proved – that the accuser was not anywhere near the place where she claimed Weiner had taken her. It was exculpatory evidence on steroids, but neither Lunsford nor Higgins cared, since they both realized that the defense could ride this evidence to an acquittal, and Lunsford was determined to win at all costs. Noted Deirdre Enright, director of investigation for the University of Virginia School of Law’s Innocence Project Clinic:

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. In the wrongful conviction world, the nicest description we have for this phenomenon is ‘tunnel vision.’

The trial consisted of Steiniger’s testimony, since the prosecution had no physical evidence to introduce. There was no evidence (other than Steiniger’s claim) of a special knock-you-out-in-15-seconds chemical, no evidence that Weiner even touched her, nothing. (A sexual assault nurse examiner did an examination of Steiniger that night and found no evidence of sexual assault.) However, with Lunsford successfully being able to lock out the cellphone evidence, Weiner’s defense pretty much was his word against hers, and jurors believed Steiniger, convicted Weiner, and recommended he receive 20 years in prison. He was frog-marched back to the regional jail and remained there until the court recently vacated his conviction.

An overturning of the verdict did not come easily, and Weiner’s new post-trial defense team discovered even more evidence of Lunsford’s prosecutorial misconduct. Continues Lithwick:

In the spring of 2014, Weiner’s new lawyers filed a motion to set aside the jury verdict. They alleged ineffective assistance by his original trial counsel. (Among other errors, the first lawyer had found a matchbook in which Steiniger had written her phone number in case a job opened up at Food Lion, but didn’t put it into evidence.) They also noted that Steiniger’s then-husband, Howard Steiniger, who was incarcerated at the time of the alleged attack, had signed an affidavit saying that she had admitted to making this story up in an attempt to get back at a guy named Mike. Her admission, he said, was made while they talked on the phone, on a recorded prison call. Records of the call were destroyed when lawyers attempted to obtain them. The new defense team also informed the court that even Mills, the boyfriend, suspected Steiniger was lying when he texted her: “why did u lie to me.” (Emphasis mine)

Weiner’s lawyers also presented an affidavit from anesthesiologist John Janes, testifying that there is no chemical that can be put on a rag and placed on someone’s face that would cause that person to pass out within 15 seconds.

The defense team also obtained the sworn affidavits of three of Steiniger’s friends who told the court that the abandoned house where Weiner supposedly took the “victim” was, indeed, familiar to Steiniger, since all of them had partied there before the alleged December 2012 kidnapping. Lunsford discounted their testimony, just as she discounted the phone records, the lack of physical evidence, the non-existent “chemical” that supposedly knocked out Steiniger, and the claims of Steiniger’s then-husband. Instead, Lunsford declared: “I interviewed the victim twice, and I believed her.”

Higgins sentenced Weiner to 20 years with 12 years suspended, but neither the sentence nor the verdict would stand. It seemed that Lunsford’s office was withholding even more exculpatory evidence, this time evidence that would challenge Steiniger’s credibility – as though she had any in the first place.

Police in Charlottesville arrested Steiniger in February of this year on charges of selling cocaine to undercover officers. Even Lunsford admitted (after finally acknowledging to the defense that Steiniger had been arrested) that this would be the “straw that broke the camel’s back,” as though the camel’s spine already had not been thoroughly smashed. Judge Higgins, after first claiming that her office did not have legal authority to vacate a conviction, decided – at Lunsford’s urging – to do just that, and Mark Weiner was permitted to step out of hell.

Even so, Lunsford still claimed that she believed Steiniger but had acted as she did because she wanted to preserve the “integrity of the system” and create the “perception of the system as being fair.” To make matters worse, Lunsford, at the present time is the co-chair of the Virginia Association of Commonwealth’s Attorneys best practices subcommittee to avoid wrongful convictions. That’s right; a prosecutor who used unethical and probably illegal means to gain a wrongful conviction is a co-chair of a committee that supposedly seeks to prevent the very kind of results that Lunsford was able to obtain at trial. You can’t make up this stuff.

As Lithwick writes, these “errors” (or, to be more precise, these examples of a total lack of integrity) by Lunsford most likely will have no effect upon her career. She is up for election this year, and neither she nor the local Democratic Party that nominated her will seek her withdrawal. If Charlottesville jurors can convict on specious evidence, then they most likely will re-elect the prosecutor who presented that evidence and who illegally hid exculpatory evidence.

Weiner cannot sue Lunsford because the U.S. Supreme Court ruled long ago that prosecutors have absolute immunity when acting in their role as prosecutors, no matter how egregious their misconduct. While the Virginia State Bar can discipline prosecutors for misconduct, officials already have said that it is highly doubtful Lunsford will face any charges or has to worry about her law license being in jeopardy. To put it another way, the State of Virginia will protect Lunsford because government agents always protect their own.

The only people bearing any costs will be Weiner and his family. As Lithwick points out, Weiner has lost his job, his life savings, and his home. He has nothing but legal bills before him, bills made necessary because Denise Lunsford decided that she wanted to win a criminal case no matter where the evidence led and “Judge” Higgins decided to grease the skids of conviction.

Likewise, Higgins will face no sanctions. She was appointed to her position and her job is not in jeopardy even though she obviously colluded with a corrupt prosecutor to railroad an innocent man into prison. Like Lunsford, she also has SCOTUS-directed absolute immunity and cannot be sued no matter how egregious her conduct.

Justice Alex Kozinski of the U.S. Ninth Circuit Court of Appeals, recently wrote that the American “justice” system is broken. I would add that what happened in Charlottesville with the wrongful conviction of Mark Weiner should be Exhibit A, at least until another Exhibit A shows up, and surely it will.

I will add, however, that Lithwick partially is wrong when she writes that the system did not work in the Weiner case. Indeed, it did work, at least for Denise Lunsford and Cheryl Higgins, as even after having their dishonesty exposed to the world, neither woman will pay even a penny of compensation to people they wronged. And, I’ll bet, Albemarle County voters will re-elected Lunsford this coming November and Higgins will continue to wear her black robes. For them, and for corrupt people like them, the system of government-produced “justice” works just fine.