State bar reprimands Spencer in Davenport case

Posted on Thursday, March 21, 2013 at 5:41 pm

Caroline County Commonwealth’s Attorney Tony Spencer was reprimanded by the Virginia State Bar Disciplinary Board for violating three rules of professional conduct for attorneys. Spencer agreed to the disposition of misconduct charges.

The board found Spencer violated rules governing nonlawyer assistants, bar admission and disciplinary matters, and misconduct, and it imposed the public reprimand Feb. 28. The bar is the administrative arm of the Supreme Court of Virginia.

The misconduct arose from Spencer’s 2010 prosecution of former deputy sheriff Clyde Davenport and subsequent legal maneuvers by Spencer and Richmond defense attorney John LaFratta.

Tony Spencer

Spencer could not be reached immediately for comment. However, he acknowledged his error in remarks to another media outlet.

“I made a mistake,” he said in a statement he provided to The Fredericksburg Free Lance-Star. “My intentions were good, but the I chose to find the truth was inappropriate.”

“Fortunately, with this mistake, there is nothing to fix. No one was harmed even slightly by the mistake I made. I will not make this mistake again.”

At the conclusion of the 2010 trial, a jury found Davenport guilty of malicious wounding and child abuse involving serious injury. Davenport had been accused of sexually assaulting his stepson when he was a young boy.

In his closing argument to the jury, LaFratta suggested that Spencer had considerably more resources at his disposal than the defense – state police investigators, an assistant prosecutor and other staff, for example.

“And then I look at my table and I see what’s been afforded Mr. Davenport,” said LaFratta, according to trial transcript, “just me, a couple of law books, a couple of brown binders jam packed full of papers. And I thought that seems a little unfair…”

Later he added that “maybe the scales of justice were a little tipped in the Commonwealth’s favor given they had all the resources, state police, telephone guy taking telephone calls, flying people in, paying for experts. They – this is not fair, me and my two books and some scrap paper. This is not fair.”

In his rebuttal argument, Spencer suggested that LaFratta misrepresented the defense counsel. “Mr. LaFratta would have you believe that he has no one working in his office. He doesn’t have a secretary, a paralegal, and a partner that he works with. He would have you believe that somehow he’s working out of his bedroom and he has these two books that he brings with him. I assure you that is not the case.”

The courtroom fencing led to a series of legal maneuvers between the two attorneys, who eventually were removed from the case.

After the trial LaFratta filed a bar complaint against Spencer, accusing the prosecutor of misrepresenting to the jury the kind of administrative support he had as defense counsel.

In response, Spencer asked a paralegal in his office who was taking classes at J. Sergeant Reynolds Community College to try to recruit another student to conduct a survey to determine the number of attorneys and support personnel in LaFratta’s office – in part because he was considering filing a bar complaint against LaFratta.  She could not enlist another student for the task, so Spencer directed her to do it. However, he instructed her to introduce herself as a Reynolds student and not to represent herself as Spencer’s employee. The paralegal made a visit to LaFratta’s office, identified herself as a student taking a survey, and elicited the information from a receptionist.

Spencer subsequently did not file a bar complaint against LaFratta, and LaFratta’s complaint against Spencer was dismissed.

LaFratta later filed a motion seeking, among other things, the identity of anyone Spencer had sent to his office to gather information about his workplace. In response, Spencer wrote to Circuit Court Judge Joseph Ellis explaining that he had asked a paralegal studies student to survey an employee in LaFratta’s office. He did not disclose to Ellis that the student was his employee. LaFratta later learned the student was a member of Spencer’s staff and notified Ellis.

In hearing related to the Davenport case in September 2011, after Ellis had declared a mistrial and Spencer had obtained new indictments against Davenport, LaFratta referred to the survey by the paralegal and asked, “If that’s the tactics that are going to be carried out, how is he (Davenport) going to get a fair trial?”

Spencer acknowledged that he had assigned his paralegal to gather the information from LaFratta’s office but argued that no harm had been done.

Ellis removed both men from the case and subsequently named a new defense counsel and special prosecutor.

The Davenport case had turned into a bitter, personal contest of wills between the two men, Ellis told them. He said their personal animosity “overwhelmed” their ability to try the case fairly.

“The wheels have come off. Both of you admit that. The zeal has been transferred into zealotry.”

“I am absolutely astounded by some of the facts that I have heard each of you allege about the other,” added Ellis.

Davenport pleaded guilty in Caroline Circuit Court as part of a plea agreement and walked out a free man in May 2012. He pleaded guilty to one charge of child abuse resulting in serious injury; in exchange, charges of aggravated sexual battery, malicious wounding, and five counts of forcible sodomy were dismissed.

Judge J. Howe Brown sentenced Davenport to two years in prison with one year and six months suspended, which is the equivalent of an active term of six months in jail. However, Davenport received credit for nine months in custody awaiting trial earlier, so he was released.

The plea agreement was reached between special prosecutor George Elsasser, an assistant prosecutor for Stafford County, and defense attorney Cary Bowen.

The jury in his 2010 trial had recommended the maximum penalty for his two convictions – a combined 30 years in prison. The jury also recommended he be fined $100,000.

 

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