Henrico commonwealth’s attorney’s race hit with allegation of special treatment

Jeremy M. Lazarus | 10/31/2019, 6 p.m.
The case of John J. Trak, who has been convicted of two felony drug possession charges and two other felonies …

The case of John J. Trak, who has been convicted of two felony drug possession charges and two other felonies since 2011, is roiling the election contest for Henrico County commonwealth’s attorney as the Nov. 5 election approaches.

Ms. Taylor

Ms. Taylor

The Democratic incumbent, Shannon Taylor, who is seeking her third term as commonwealth’s attorney, is battling the perception that she gave special treatment to Mr. Trak, who donated a total of $1,500 to her campaign earlier this year while her office was prosecuting him on two new felony drug possession charges stemming from his arrest in August 2018.

Ms. Conway

Ms. Conway

While Ms. Taylor confirmed the donations to the Free Press and stated that her campaign returned Mr. Trak’s money after she became aware of the conflict, the role of Ms. Taylor’s office in the Trak case has gained attention ahead of the election after a special prosecutor declined to go forward and dropped the charges in Henrico General District Court.

Ms. Taylor’s Republican challenger, C. (for Catherine) Owen Inge Conway, a former prosecutor in the Henrico Commonwealth’s Attorney’s

Office and a defense attorney for seven years, alleges that Mr. Trak was treated differently than others with felony drug convictions who are re-arrested for possession of illegal drugs.

She considers the handling of the Trak case an “unethical and improper” action on the part of her opponent.

Ms. Taylor rejected that characterization and insisted that “nobody receives special treatment in my office” in an Oct. 23 email to the Free Press.

Ms. Taylor stated she wasn’t aware that Mr. Trak, who had made three separate donations to her campaign in February, May and June, was the same person her office was prosecuting until just days before he was slated for a hearing in Henrico General District Court on July 23. An assistant commonwealth’s attorney handled the case.

Mr. Trak had been to court three times since his August 2018 arrest, court records show, but the case was continued each time as Mr. Trak went through recovery.

Ms. Taylor became aware of the connection when Mr. Trak, then with the McShin Foundation’s recovery program, was invited to the Henrico Commonwealth’s Attorney’s Office a few days prior to the hearing to talk about the program to the attorneys and other staff and was recognized by the assistant commonwealth’s attorney handling his case, the Free Press has been told by multiple sources.

In a follow-up email on Monday, Ms. Taylor indicated that she does not run donors’ names through a database to determine if they might be facing charges and is unaware of any commonwealth’s attorney candidate who does.

“Our system here in Virginia is built on transparency,” Ms. Taylor stated. “Voters can look at the contributions and then my actions or that of any candidate and draw their own conclusions.”

But Ms. Conway takes issue with that view.

“As a politician, Ms. Taylor needs to know from whom she is accepting money and if her donors have charges pending in her office,” Ms. Conway stated. “The public needs to know the county’s elected prosecutor is not taking money from people seeking breaks on their charges.”

Ms. Conway continued that if Ms. Taylor “actually did not know that Mr. Trak, with whom she had a friendly relationship and invited into her office, was a defendant, then why did she not know? It is her job to know.”

In her first email to the Free Press, Ms. Taylor stated, “My staff of attorneys, when handling cases involving routine policy, do not run every case by me. (That would be impossible with 34 attorneys and the caseload.)”

Ms. Taylor continued, “When I realized I had received contributions from a person with an active case in my office, I returned the contributions.”

Ms. Taylor’s September campaign finance report shows the campaign returned $1,250 to Mr. Trak on July 29, six days after the court hearing. And in her email to the Free Press, Ms. Taylor stated that a final $250 refund to Mr. Trak was issued on Oct. 23 after she became aware the initial amount returned didn’t total $1,500.

Ms. Taylor also stated that prior to the hearing, she “asked that a special prosecutor be appointed, and the judge appointed Mr. (Robert) Cerullo,” chief deputy commonwealth’s attorney for Powhatan County.

According to a court document dated July 19, the case was turned over that day to Powhatan Commonwealth’s Attorney Robert Cox. He assigned it to Mr. Cerullo on Monday, July 22, according Mr. Cerullo.

Mr. Cerullo told the Free Press he went to court on July 23 and informed the court that, based on his review, he would not proceed against Mr. Trak and was allowed to have the two charges of possession of a controlled substance be nol prossed, or not prosecuted.

A former Chesterfield County police officer and narcotics detective, Mr. Cerullo said the judge informed him that Mr. Trak had donated to Ms. Taylor’s campaign, but he said he did not consider the information relevant.

In a Free Press interview and in emails, Mr. Cerullo stated that he found a note in Mr. Trak’s file stating that Ms. Taylor’s office was considering reducing the felony charges to misdemeanors if Mr. Trak did well in rehab, but stated that there was no formal agreement. Mr. Cerullo said he received evidence from Mr. Trak’s lawyer that Mr. Trak had done far better than expected in rehab.

“When I reviewed the case, it was my opinion that Mr. Trak had gone above and beyond what was expected of him, and I saw no point in convicting him of a misdemeanor. I thought, and still do, that his efforts deserved the case to be not prosecuted,” Mr. Cerullo stated.

He stated that he was the sole decision-maker as to the disposition of the two charges, and that no one from the Henrico Commonwealth’s Attorney’s Office influenced him or played a role.

Ms. Taylor stated in her Oct. 23 email that the note Mr. Cerullo found in the file “is not unusual at all.” She stated that “it is a policy in my office ... that we attempt to avoid a felony conviction on their record in an effort to encourage sobriety.”

She said that she can produce files of other defendants, with names removed, who were “struggling with addiction who have been offered misdemeanors to seek and receive treatment.”

Ms. Conway and several other attorneys, who spoke with the Free Press on the condition that their names would not be published, said that has not happened for their clients, who have similar records to Mr. Trak — past felony convictions and new charges.

Based on her experience as a former prosecutor and as a defense attorney, Ms. Conway said the leniency afforded to Mr. Trak is “almost unprecedented for someone who was previously in court” and convicted on various felony charges.

Henrico court records show Mr. Trak had felony convictions for possession of heroin in 2011 and possession of cocaine in 2012. He also pleaded guilty to a felony charge of entering a home for larceny in 2012 and obtaining a credited card by larceny in 2011.

In 2017, he was charged with a felony drug possession charge, which was not prosecuted. He was sentenced to a year in the county jail on a second charge related to misdemeanor possession of drug paraphernalia, according to court records.

Ms. Conway said she is dismayed that a “white campaign contributor who could afford a costly rehab program” was given an opportunity that she said is not offered to African-Americans and poor clients she represents who are facing felony drug possession charges in Henrico. Instead, she said the Henrico Commonwealth’s Attorney’s Office lowers the boom on them.

On Tuesday, Ms. Conway was in Henrico Circuit Court handling the case of an African-American man charged with illegal possession of oxycodone pain medication and he had previous felony convictions in 1989 and 1995, she said.

“I asked for any disposition other than a new felony conviction, and the assistant commonwealth’s attorney laughed at me,” Ms. Conway stated.

In an Oct. 24 email, Ms. Conway cited another example. “I had a client today who will have been in jail for six months before his case comes up in Henrico General District Court,” she wrote. “I asked the assistant commonwealth’s attorney if he completes the jail’s RISE drug treatment program if she would consider reducing his felony possession charge to a misdemeanor, and she said, ‘No.’ ”

Ms. Conway added that it is highly unusual for Mr. Trak’s case or anyone charged with felony drug possession to be handled entirely in general district court. She said state law only allows circuit courts to continue or dismiss felony drug possession cases for first-time offenders to allow those charged to do community service and receive treatment.

Circuit courts also are authorized under state law to divert people charged with their first felony drug possession to a special drug court to get help and ultimately avoid a felony record if they succeed in that program.

“That is not the situation in the Trak case,” Ms. Conway stated, given that he has previous felony convictions and so, she said, would not have been eligible for a diversion program. Mr. Cerullo confirmed that Mr. Trak, due to his prior record, would not have qualified for diversion or dismissal if his case went to circuit court.

Ms. Taylor stated, “Each case is individual. Our goal and our policy is to help those struggling with addiction and to get them on the road to recovery.

“There has never been a change in policy in regards to what assistant commonwealth’s attorneys seek,” Ms. Taylor stated. “We continue to reduce felonies to misdemeanors and/or dismiss cases if conditions are met.”