YORK — The 16-day jury trial for a wife accused of shooting her husband in 2016 has been continued until next year.
The case against Lynn Fogarty, 34, was originally scheduled for a jury trial this month — which would have started Monday — but has been continued until Jan. 22, online court records show.
York-Poquoson Commonwealth’s Attorney Benjamin Hahn said Andrew Sacks, Fogarty’s defense attorney, asked for the continuance to have additional time to prepare for the trial. Prosecutors did not object to Sacks’ request.
“The reason for the requested continuance was to enable the defense to have additional time to adequately and effectively review a large volume of materials and information made available by the prosecution but which required more time to properly examine,” Sacks said.
Fogarty is charged with first-degree murder and use of a firearm in the commission of a felony in the Sept. 25, 2016, death of her husband, Giancarlo Di Fazio. Investigators believe Fogarty shot Di Fazio in the chest during a domestic altercation at their house at 109 Burgundy Road.
First-degree murder is defined by Virginia Code as “any willful, deliberate, and premeditated killing.”
Fogarty has been out on bond since Oct. 31, 2016, about a month after her husband was shot.
She was again released on a $150,000 unsecured bond in June 2017, about two weeks after prosecutors upgraded charges against her to first-degree murder. The terms of her bond require her to be under pretrial supervision, refrain from using drugs or alcohol, avoid contact with Di Fazio’s family and remain on house arrest with her mother.
Hahn confirmed Thursday that Fogarty is still out on bond.
The York-Poquoson Sheriff’s Office responded to the Fogarty and Di Fazio home on Burgundy Road around 3 p.m. Sept. 25, 2016, after Fogarty called and said she shot her husband, court documents state.
Authorities believe Fogarty shot Di Fazio as he was about to use the bathroom, according to documents.
“Ms. Fogarty claims to have been the victim of domestic violence with her husband as the perpetrator,” a May 18, 2017, search warrant states, although an earlier warrant states Fogarty had no signs of any physical abuse following the shooting.
Di Fazio’s father reported to investigators that he believed the beneficiary on his son’s life insurance policy had been changed shortly before his death, search warrants state.
Attempt to revoke bond
In February, Hahn filed a motion to revoke bond, alleging that Fogarty had violated her bond by drinking alcohol.
“The Commonwealth asserts that the defendant’s liberty will constitute an unreasonable danger to both herself and to the general public and that no condition or combination of conditions can be imposed that would reasonably assure the safety of the public or the safety of this defendant,” Hahn wrote in the motion.
York-Poquoson Circuit Court Judge Richard Rizk denied Hahn’s motion on March 1, online court records show.
Fogarty will remain on house arrest until her trial, unless bond is revoked in the intervening time.
“Furthermore, the defense has adamantly contended that from Lynn’s release on bond at the end of October, 2016 until the present, she has been a model of compliance with all release conditions,” Sacks said.
Preparing for the case
Both prosecutors and defense attorneys have filed multiple motions ahead of Fogarty’s trial.
In one, Hahn asked a judge to prevent Fogarty from using expert testimony about “battered woman syndrome,” as he argued it is not permitted in Virginia. In the motion, filed April 2, Hahn said he believed Fogarty would use the expert testimony to justify shooting her husband, although Virginia Code does not allow experts to testify about a defendant’s individual perception in court.
Hahn also filed a motion April 18 asking a judge to prevent Fogarty from describing the character of Di Fazio or any past “bad acts,” as well as mentioning “self-defense” unless she testifies at her trial.
“The defense has consistently contended in numerous Court hearings that from the initial 911 call made by Lynn seeking emergency medical attention for her husband and throughout the ensuing investigation, the evidence is that Lynn at all times acted in justifiable self-defense,” Sacks said.
Sacks continued: “A thorough review of the prosecution’s production of these materials, therefore, is absolutely necessary as the defense continues to build, and seek support for, its self-defense case.”
Sacks filed two motions April 17. One asks to change the venue of the trial due to “a feeling of prejudice on the part of the citizenry in the community against the defendant.”
If the first motion is not granted, the second defense motion asks for an expanded voir dire process, which is when jurors are selected. The motion argues that media reports about the case have reached a widespread audience, possibly tainting the jury pool.
The motion asks for a more thorough jury selection process to achieve an impartial jury.
The defense motion to change venue, as well as the commonwealth’s motion to prevent Fogarty from claiming self-defense and limit character evidence of Di Fazio, were both taken under advisement by the court, meaning the court will consider them and readdress them later.
Following the defense motion for expanded voir dire procedure, judge designate William H. Shaw III said he will set aside time to address voir dire questions for jurors ahead of the trial.
The case has two additional motion hearings scheduled ahead of the trial: at 1 p.m. Oct. 17 and Nov. 26.
“The defense respectfully must at this time, however, reserve further comment on the case or anticipated evidence for and through in-Court statements and argument at later hearings expected to further address certain pretrial matters including evidence that the defense wishes to present at trial in support of its theory of self-defense,” Sacks said.
WYDaily archives were used in this story.
Update: This story was updated at 7 p.m. Friday with comment from Andrew Sacks.
Sarah Fearing can be reached at firstname.lastname@example.org.