Lancaster’s Commonwealth’s Attorney Jan Smith will not be removed as the prosecutor in the John “Rand” Hooper case, Judge Herbert Hewitt ruled in King George’s Circuit Court last Tuesday.
Hooper is facing felony charges of involuntary manslaughter and failure to render aid during an August 2017 boating incident that resulted in the death of Graham McCormick. According to details in the civil lawsuit filed by the deceased’s family, Hooper was driving a boat while intoxicated, crashed into a bulkhead and McCormick was thrown overboard. Hooper left McCormick, who then drowned.
Hooper and his parents, who were also named in the lawsuit, settled for $4 million.
Last month, McCormick’s parents, Sallie Graham and J. Burke McCormick petitioned the court to have Smith disqualified as the prosecutor in the criminal case. They argued the Commonwealth’s Attorney was unfit to proceed for numerous reasons, including the appearance of impropriety, incompetence, lack of partiality and improper communications with the court.
According to McCormick’s affidavit, Smith told the family he had gone over the case with the judge and the judge had some doubts about whether the Commonwealth could meet its burden of proof on the manslaughter charge. “Mr. Smith left me with the distinct impression that I should not object to the plea,” he wrote.
When Hooper appeared in court in June, Judge McKenney called attention to a letter from Benjamin Woodson, owner of the property where the accident occurred and McCormick’s body was found. He reiterated the claim that Smith was said he pre-arranged the outcome with the judge. “I was shocked when the Commonwealth’s Attorney told me that [Judge Michael McKenney] and he had determined there wasn’t enough relevant information to convict Rand Hooper in a jury trial, and therefore, a plea agreement was reached,” Woodson wrote.
In open court, McKenney denied that the conversation with Smith occurred, noting that such a conversation would have been improper and recused himself from the case to avoid the appearance of impropriety.
That left the McCormick family believing that Smith misled them and coerced them into taking a plea deal. And that was truly the crux of their push for Smith’s removal, said their attorney, Gregory Habeeb of the Gentry Locke law firm.
When addressing Judge Hewitt, Habeeb acknowledged the “unique nature” of asking to remove an elected official from his duty. But “where the players are flawed, justice is not served,” he said. Habeeb argued that as victims, the parents have statutory and constitutional rights. Article 1 of the Virginia Constitution ensures victims will be afforded fairness, dignity and respect. None of those have been granted in this case because of Smith’s behavior, said Habeeb.
“And it’s interesting that the Commonwealth didn’t dispute the facts. His argument is just that it doesn’t matter,” Habeeb added.
When Smith addressed the judge, he still didn’t dispute the allegations. Instead, he read the four entitlements afforded to victims under the Victim Crimes Rights Act. “Nothing gives them any right to qualify my qualifications,” he said.
Smith told the judge the law only allows two parties to ask the court to consider his removal—himself and a convicted defendant.
Showing a united front with Smith, Hooper’s defense attorney from Breeden & Breeden rose from his seat beside the Commonwealth’s Attorney. He argued also on Smith’s behalf, telling the court that the case was controlled solely by statutory law and there is no statutory provision allowing McCormick’s parents to have the Commonwealth’s Attorney removed.
For the full article, pick up the latest Northern Neck News 8/7/19