Delay denied: Huguely sentencing still set for Aug. 30

Six months ago, a jury recommended that George Huguely V get 25 years for the second-degree murder of Yeardley Love (and another year for the theft of her laptop computer). How much time he serves is up to Judge Edward Hogshire, who is scheduled to sentence Huguely August 30. And the former UVA lacrosse player's attorneys are doing everything in their power to make sure that doesn't happen.

Listing what they contend were 10 errors, the defense filed motions May 25 and June 5 to set aside the verdict and obtain a new trial. A key point of contention is that two months after the criminal conviction, Yeardley Love's mother filed a $30-million wrongful death civil suit.

Huguely should get a new trial, according to the convicted killer's attorneys, because they, unlike the prosecutors, didn't get advance warning about the April 24 lawsuit. And that omission, the defense contends, violates the so-called Brady rule, a U.S. Supreme Court mandate that the prosecutor must turn over all evidence that favors the defendant.

So how would foreknowledge about a lawsuit favor George Huguely?

According to Huguely's lawyers, if only they'd known that Sharon Love was planning the wrongful death lawsuit, then she and Yeardley's sister, Lexie Love, "could have been impeached for bias" during their sentencing testimony.

That's what defense attorney Fran Lawrence said in court July 31, a hearing that turned testy when he and Commonwealth's Attorney Dave Chapman raised their voices at each other– before the judge ordered both Chapman and Lawrence to sit down.

The argument that the civil lawsuit caught the defense off guard was met with incredulity by both the judge and prosecutor.

"Was there ever any doubt about a lawsuit?" asked Judge Edward Hogshire.

"Yes," answered Lawrence. "Not everyone files a lawsuit."

The defense learned before trial, January 30 to be precise, in a letter to both Lawrence and co-counsel Rhonda Quagliana, that Chapman planned to call both Sharon and Lexie Love as witnesses, and Chapman noted then that a "potential cause of action may be available to either or both the Loves under the circumstances."

"Everybody has a 'potential' lawsuit," Lawrence scoffed at the July 31 hearing.

What Lawrence says he would have preferred to see was the email sent the previous August, from one of Sharon Love's lawyers: "As you know," lawyer Irv Cantor wrote Chapman, "we are planning to file the civil suit on behalf of the Love family against Huguely."

That email was not found in the "open file" where the prosecution makes evidence available to the defense, according to a defense memo.

"[Chapman] knows lawyers have been hired," Lawrence told the judge. "He understands it's Brady material."

Knowledge that the Loves were filing suit might have lessened the 26-year-sentence handed down by the jury, Lawrence argued. Not surprisingly, Chapman disagreed and said the defense failed to exercise "due diligence" by interviewing material witnesses in the case.

"It does not take a lawyer to have some sense a legal proceeding will take place," Chapman said about the lawsuit.

How significant is the alleged Brady violation?

"If they'd known the Loves were filing a civil lawsuit, they could have cross-examined them for bias," explains Hook legal expert David Heilberg. "Because it's arguably bias doesn't mean it is bias."

And whether the alleged omission was significant enough to affect the outcome of the trial, Heilberg downplays it as "harmless error" and credits the defense for "a good, creative argument."

Not as far as the defense is concerned. The Brady law is so complicated and the law concerning it so evolving, the defense suggested in an August 3 motion, that Judge Hogshire needs more time to ponder the matter, and requested that both the August 22 hearing and the August 30 sentencing be postponed.

At an August 13 hearing, however, Hogshire denied the requests and said he'll be ready to hear oral arguments on August 22 and proceed with sentencing the following week.

Among the reasons the verdict should be set aside, according to the defense, is that Huguely's Sixth Amendment right to counsel was violated when Quagliana fell ill. Quagliana became sick with the stomach flu on Thursday, February 16– nine days into the trial– and court was recessed that day. She was still ill the next day and spent Friday afternoon in the infusion center at Martha Jefferson Hospital.

Despite Huguely's objection to proceeding without both his lawyers, Hogshire made Lawrence examine witnesses on February 17, and that allegedly deprived Quagliana of sufficient opportunity to observe such witnesses and jurors, according to the motion.

"The Court had no basis for this unrelenting insistence on maintaining its break-neck schedule," claimed Huguely's defense about the trial, which still exceeded its anticipated two weeks.

To that argument, Chapman suggested that maybe Quagliana wasn't all that sick and "was working on the case during her absence" because she answered two phone calls from the Commonwealth in her Park Street office on the evening of February 17.

Not at all, responded the defense in a reply memorandum. Quagliana spent most of the time home in bed suffering from "repeated unexpected bouts of vomiting" and she wasn't fully recovered even when she returned to court on Saturday, February 18, when she had to excuse herself from the courtroom on one occasion.

"It is frankly irresponsible," said the defense, "for the Commonwealth to question the severity of Ms. Quagliana's illness and resulting incapacity."

The argument that Huguely was unfairly deprived of counsel is both unusual  and potenitally tricky, says expert Heilberg.

"What works in their favor is that Rhonda prepared to [examine medical experts]," says Heilberg. "On the other hand, Fran should have had a backup."

"Most people," continues Heilberg, "have one attorney. A small percentage have co-counsel. That's a luxury. It's bad she couldn't hear part of the evidence, but that's a luxury, not a Sixth Amendment necessity."

As for other alleged trial errors– including not striking certain jurors and refusing to sequester the jury, Heilberg says it's not an abuse of discretion "as long as the judge was trying to be fair."

How likely is it Hogshire will set aside his jury's verdict?

"There isn't much chance," says Heilberg.

Noting that Huguely's team has indicated they will file an appeal, Heilberg says that the appellate courts will construe evidence in the light most favorable to the Commonwealth. And that would be bad news for the 24-year-old Huguely, who may not win release from prison for over two decades.

"It sounds," says Heilberg, "like a lot of uphill battles."