By Michelle Washington, The Virginian-Pilot - June 10, 2006

NORFOLK — The Virginia Supreme Court has overturned a man’s drug convictions, saying city Circuit Judge Chuck Griffith appeared to show bias against a defense lawyer and should have recused himself.

Tyrone Alphonso Wilson must have a new trial before a different judge, the court ruled. Commonwealth’s Attorney Jack Doyle said his office will try the case again.

Steve Emmert, a Virginia Beach lawyer who heads the state bar’s appellate practice committee, said the Supreme Court’s decision was unusual.

“This is a highly unusual decision for the simple reason that the Supreme Court doesn’t second-guess a trial judge’s decision not to recuse himself every session,” Emmert wrote on his Web site devoted to analysis of appellate court decisions.

Griffith said Friday that he respected the Supreme Court ruling but declined further comment.

The justices’ opinion described the events and the reason for their ruling:

Wilson was indicted on possession of cocaine with intent to distribute, possession of marijuana with intent to distribute and two firearms charges. Police arrested him after more than an hour of watching an apartment he was in. Once inside on a search warrant, officers found marijuana, baggies, cash, scales with drug residue, cocaine and a gun. Wilson told the officers he had another gun, which they took. Police also found $1,755 in cash on Wilson, and the keys to a van outside the apartment. There, the officers found cocaine worth $350,000.

Wilson came before Griffith in July 2002 for trial. The case had been scheduled for a bench trial in front of another judge. When the case was transferred to Griffith’s courtroom, Wilson asked for a jury trial.

Wilson’s attorney, Allen D. Zaleski, admitted in court that he told Wilson to ask for a jury specifically because the case had been transferred to Griffith. Emmert’s site noted that Griffith is considered tough in criminal cases.

Griffith tried to remove Zaleski as Wilson’s attorney but could not because Zaleski had been retained rather than court-appointed. Then Griffith removed Zaleski from the list of court-appointed attorneys, “effective immediately.”

“Judge Griffith declared he was ‘not going to have a court-appointed lawyer who practices that way in this court building’ and referred to Zaleski’s actions as ‘shenanigans,’ ” the justices wrote in a 15-page opinion.

In September 2002, Wilson appeared before a different judge, changed his request back to a bench trial, and was arraigned. That judge set a bench trial date a week later.

When Griffith learned that Wilson’s case was again set for a bench trial, he told the chief judge that a defendant should not be allowed to “avoid a particular courtroom” by requesting a jury trial. The chief judge agreed and assigned the case to Griffith.

The next week, when Wilson returned for trial, Zaleski told Griffith he and the prosecutor had nearly worked out a plea agreement. Griffith refused to accept it, saying he was ready to start the trial. The prosecutor interjected that she wanted Griffith to accept Wilson’s guilty plea with an agreement that Wilson be sentenced to 20 years with four to serve. Griffith again refused, saying the time for negotiations had passed.

The prosecutor asked to speak with Griffith in his chambers. There, she told the judge that just before the trial she learned of exculpatory evidence that affected the case and offered a plea agreement for that reason.

Zaleski repeatedly asked if Griffith was refusing to consider the plea agreement. Griffith responded that he would not be forced to consider a plea and that the trial would begin.

Griffith convicted Wilson of all charges and later sentenced him to 60 years in prison, with 30 years suspended. That meant Wilson would serve 30 years.

A three-judge panel of the Court of Appeals at first reversed the conviction, but the full court later upheld it. Wilson appealed to the Supreme Court on grounds of insufficient evidence and because Griffith “abused his discretion in refusing to recuse himself from the case because of his actions during the July 16 hearing and at trial.”

In their decision, the justices wrote that the evidence was enough to convict Wilson. However, the justices said, a judge must not only consider his impartiality, but also whether his actions affect the public’s perception of fairness.

Griffith showed bias by removing Zaleski from the court-appointed list, his attempt to remove him from the case, his reference to Zaleski’s actions as “shenanigans” and his efforts to have the case reassigned to his courtroom, the justices wrote.

The justices also questioned Griffith’s refusal to consider the plea agreement although the prosecutor initiated it, and although both she and Zaleski said one had been reached.

“Judge Griffith’s prejudice or bias against Zaleski is repeatedly reflected in this record and such bias does raise questions about Judge Griffith’s ability to be impartial in this proceeding,” the justices wrote.

Zaleski said Friday that the court’s ruling had little effect for him.

“I’m still off the list,” Zaleski said. “I’m still punished.”

That was paltry compared to the effect for Wilson, who faced 30 years in prison, Zaleski said.

“He’s the one who should feel vindicated, pleased and elated,” Zaleski said.

Zaleski did not know if his relationship with Griffith would change because of the ruling. His subsequent appearances in Griffith’s courtroom have been uncomfortable, he said, and the court’s ruling might give him the opportunity “not to be there.”

“I’m sure the judge wishes it had never happened, and I wish it had never happened,” Zaleski said.

Circuit Court Chief Judge Everett A. Martin Jr. said any lawyer who wants a judge to recuse himself must make that motion in front of the judge.

Wilson should be returned to the Norfolk jail within two weeks to await trial, Zaleski said.

Reach Michelle Washington at (757) 446-2287 or michelle.washington@pilotonline.com.