A three-judge panel found Williamsburg-James City County Commonwealth’s Attorney Nate Green guilty of misconduct Tuesday.
The panel said Green violated a court order when he represented the state in circuit court in June 2011 on an appeal of guilty convictions against Stephen D. Harris, a local attorney, for driving with an open container and refusal to take a blood or breath test. Green had previously recused himself, via court order, from the case tried at the district court level in February 2011.
Stafford County Circuit Court Judge Sarah Deneke told Green he has received a public admonition for the violation, meaning the court has made a finding that Green engaged in misconduct, but no harm had occurred and further disciplinary action is unnecessary.
Tuesday’s misconduct hearing was argued before the panel by Virginia State Bar Association Deputy Bar Counsel Kathryn Montgomery and Green’s lawyer, William Tunner.
“This court has found, for lack of a better term, a serious lack of judgment [on the part of Green] in this case,” said Deneke, who joined retired Circuit Court Judge Frederick Lowe and retired Circuit Court Judge William Savage on the panel.
Green was also facing a charge that alleged a conflict of interest, but the panel unanimously decided Green was not guilty on that count. The admonition is the first blemish on Green’s record. The panel had numerous options before it, ranging from a dismissal of the charges to revoking Green’s license to practice law.
Green offered an apology in a brief testimony immediately before the court handed down the admonition.
He said during that testimony he felt disheartened he had let the community and his office’s staff down over the past two years that this issue has been before him. He said he expects a great deal more for himself and that “it’s not fair I brought this inquiry upon this community.” He said the job of commonwealth’s attorney is extremely important to him.
“When I was little, I wanted to be a superhero,” Green said, “and when I realized that wouldn’t work out, I decided a commonwealth’s attorney is the next best thing.”
The violation occurred in the June 2011 hearing when Green represented the state instead of Charles City Commonwealth’s Attorney Robert Tyler, who had represented the commonwealth in Harris’ district court hearing after Green’s recusal, despite the existing court order naming Tyler as the state’s representative.
Tunner argued Green thought the order only applied to district court, but the judges found the order meant Tyler should have represented the commonwealth until the matter was concluded.
Harris contributed $100 to Green’s 2007 campaign for the Commonwealth’s Attorney job, and he also wrote a Letter to the Editor in a local newspaper in support of Green’s candidacy. Tunner argued Tuesday that Green didn’t know Harris during the election and that Harris’ contributions to Green’s campaign came after an associate of Harris asked him to help out a young lawyer.
When Harris appeared in district court in February 2011, he was found not guilty of charges of driving while intoxicated first offense and unlawful possession of a concealed weapon while intoxicated. The incident that led to the charges occurred in November 2010.
During the June 2011 circuit court appeal hearing, Green offered a summary of the state’s evidence against Harris to the court. No court reporter was present for the hearing. Powell then gave Harris a deferred disposition — meaning he would wait to pronounce a sentence — until October 2013. Testimony from Tyler said deferred dispositions were favored by Powell, who also merged the two remaining charges into one.
Montgomery argued Green should have informed Tyler of the circuit court appeal so he could have represented the state as he had in the district court hearing. Tyler testified he assumed he would handle the case until it was complete and that it was his expectation to be notified of the appeal.
Tyler testified he called Green upon seeing the result of the appeal in a computer system told Green he was upset the matter had proceeded without him.
Green testified Richard Rizk, Harris’ attorney, had told him ahead of the appeal Harris would plead guilty in what’s known as a mercy plea. That plea has a defendant admit there is enough evidence to prosecute but the judge should consider a lenient sentence. Green wrote in a reply to a document from the Virginia State Bar outlining the case against him that Powell agreed to hear the appeal after Green told him Harris would plead guilty.
Green told the court Tuesday he wanted to be recused from the district court case in order to avoid an appearance of impropriety. Once the case reached circuit court, however, he said appearance was no longer there since the matter going before the circuit court did not deal with the more serious DWI and firearm charges — which carried up to 24 months in jail and thousands of dollars in fines — but rather dealt with a civil offense that carried the loss of a driver’s license for a year and a misdemeanor that had a maximum penalty of $250.
The courtroom was packed with police officers, local defense attorneys and much of the staff of the Williamsburg-James City County Commonwealth’s Attorney’s office. Local attorney Stephen Roberts gave a brief testimony praising Green’s character and professionalism as the commonwealth’s attorney.
