Judge removes attorneys from Clyde Davenport case
BY PORTSIA SMITH
In an extremely rare judicial move, a Caroline County Circuit judge removed both the prosecutor and defense attorney from a child abuse case involving a former sheriff’s deputy that has dragged through the courts for more than three years.
“I don’t know that [the defendant] can get a fair trial in this case if the two of you are in it,” Judge Joseph J. Ellis said to Commonwealth’s Attorney Tony Spencer and Defense Attorney John LaFratta.
“The wheels have come off. The zeal has been transferred into zealotry and it has nothing to do with [the defendant], it has to do with a competition between the two of you.”
The surprise action by Ellis came this afternoon during a hearing on pre-trial motions.
Before Ellis removed the attorneys from the case, he quashed five new sodomy charges against 51-year-old Clyde C. Davenport, a former sheriff’s deputy who was convicted by a jury last September of malicious wounding and child abuse resulting in injury.
But that verdict was set aside by Ellis in May after LaFratta argued that some statements made during the trial by Spencer about Davenport being a porn dealer and racist were prejudicial against his client.
Today’s hearing was scheduled to address two defense motions in which LaFratta requested that a re-trial be barred, and accused Spencer of “prosecutorial misconduct” and “actual vindictiveness.”
Ellis disagreed, saying Spencer may have made some unwise decisions, “but do I see misconduct, no.”
The attorneys, who both told the judge they basically grew up together and have known each other for more than 40 years, had a heated back and forth exchange today for more than an hour on the issue.
“Everything that I have done in the prosecution of Clyde Davenport was intended to see that justice was done while affording the defendant a fair trial,” Spencer said after court.
Ellis said he had to remove them both because he felt their ability to remain professional was overwhelmed by their personal animosity toward each other.
“I’ve been practicing law for 31 years and I’ve been on the bench for more than 12 years, and I truly can’t recall a case that disturbs me more than this one; not because of the charges, but because of the conduct of the two of you,” Ellis said. “I am going to replace both of you. It’s the only way I’m capable of ensuring Mr. Davenport will be having the fair trial he is entitled to and guarantee the rights of the victim.”
Ellis said he will appoint a special prosecutor and defense attorney prior to the three-day trial that is scheduled to start Dec. 14.
LaFratta, referring to three boxes full of documents, said while he is barred from trying the case he intends to spend a lot of time educating the new defense attorney.
“It’s not over for me or Mr. Spencer,” he said.
He added, “I don’t know how the judge can say the defense is partially or equally to blame for how this has gone down.”
Davenport, who entered the courtroom walking with two arm-brace crutches, is in poor health and will be living with his sister in King William County until the case goes back to court, LaFratta said.
“This is a nightmare I have been living since May 2008,” Davenport told The Free Lance-Star after court. “I have spent nine months in jail for nothing, for something that I did not do.”
He said the allegations against him were made up because he and the victim’s mother have had an ongoing court battle on an unrelated matter.
The charges against Davenport stem from a Virginia State Police investigation after a 2008 complaint from the Department of Social Services. The abuse is alleged to have started in December 1998, when the boy was 8 years old.
The victim, his mother and other witnesses said they called police about the abuse, but said they believed because of Davenport’s relationship with the local Sheriff’s Office, nothing would ever come of it.
Davenport was hired as a deputy in December 1988 by then-Sheriff O.J. Moore and left the force in August 1997, when Homer Johnson was sheriff. He worked as a school resource officer and as a D.A.R.E. officer.
Davenport testified that he resigned in 1997 so that he could run for sheriff that year. However, he dropped out of the campaign.
Portsia Smith: 540/374-5419