NEWS- Trial begins: Police accusers find themselves accused

On Thursday, November 29, Blair Austin, who accuses an officer of pushing her down, will stand trial on public drunkenness and obstruction charges stemming from the incident at this downtown crosswalk.
FILE PHOTO BY COURTENEY STUART

As the public drunkenness trials of Richard Silva and his fiancée, Blair Austin, loom large on this week's Charlottesville court docket, questions persist about what exactly happened the night of September 28 as they made their way from the Downtown Mall to the Water Street parking garage and literally crossed the path of Charlottesville police officer Mike Flaherty.

According to Police Department records from that night, a call went out from the central dispatcher's office at 12:41am regarding a possible "domestic in progress" at 322 E. Main Street, the building that houses Timberlake's Drug Store and a few apartments.

"We look at that as two people in an intimate relationship," says Charlottesville Police spokesperson Lt. David Shifflett. "The dispute could be anything."

The dispatcher's report doesn't specify whether it was a simple argument or full-blown fisticuffs (or a false alarm, as the building owner suspects), but according to police officials, Flaherty was rushing to respond to that call when his marked police SUV came down Second Street SE past the X Lounge. At the foot of the hill, he encountered Silva and Austin crossing the street as he attempted to make the turn onto Water.

"He was going so fast it didn't look like he was going to stop," says passerby Treva Smith, who saw the incident from across Second Street. "If he'd gotten there a second sooner, he would have hit them. So [Silva] was trying to cross the street and put a hand out like, 'Can you give us a chance to cross?'"

While that account matches three others quoted in the original Hook story about the incident ["Show of force: Couple arrested, allege police brutality," October 11, 2007], Edwin Banks reports a slightly different version of the events from his vantage point working in the booth at the Water Street parking lot.

"They walked into the street in front of the officer," says Banks. "They were intoxicated. I see a lot of that down here."

Smith, who says she had a drink herself two hours earlier, argues that she knows intoxicated people when she sees them, and neither Silva nor Austin fit that description.

"They weren't drunk or anything," she says. "Maybe they had some kind of alcohol with dinner, but they weren't stumbling or making noise."

As Flaherty was bearing down to make the turn onto Water, and Silva and Austin were scrambling out of the crosswalk to avoid him, Silva spoke the words he now regrets.

"He yelled, 'Slow your a**!'" says Smith. "The cop immediately stopped and got out. I guess he had the adrenaline of going to this other scene and got upset."

What happened next has become the subject of much public debate. As Flaherty got out of the car and began to handcuff Silva, Austin shouted, "Why are you arresting him?" At that point, Flaherty allegedly got physical.

"He pushed her hard," says Smith. "It's like when you're a kid, and you're mad at someone, and you push them with all your might. He didn't say, 'Stay back,' or anything like that. It was out of the blue."

According to Austin, the police plan to claim that she tripped, an allegation she vehemently denies. However she hit the Water Street asphalt, her predicament didn't stop Flaherty from arresting her in addition to Silva, both on charges of drunk in public and Austin on an additional charge: obstruction. 

Besides the alleged use of force on a woman, something else doesn't sit right with Smith about Officer Flaherty.

"If he had to go to an emergency," she wonders, "why did he have time to arrest two people crossing the street?"

According to police officials, Flaherty had been called off the 12:41am domestic call by the time he encountered Silva and Austin. But according to the list of police dispatches from that night, Flaherty called in his suspicion of Silva at 12:42am. How could he be speeding to the scene of a potentially serious domestic dispute one minute and stopping to arrest a couple on a misdemeanor drunk in public charge the next?

"That whole incident is currently under investigation," says Shifflett, "and I'm not at liberty to discuss it, as is normal when something is being investigated by the department internally."

One man who may be able to clarify the night's events is Gordon Butler, a cab driver who saw the incident and has been issued a subpoena by the prosecution. So key is Butler to the prosecution's case that even after lawyers and five witnesses assembled in Charlottesville General District Court for the trial on November 13, prosecutors were successful in getting the trial delayed because Butler was busy with a scheduled medical consultation.

"I got a call the day before the trial, and I said I couldn't come because I'm trying to get this kidney transplant," Butler explains.

Butler refuses to divulge his account of the incident with the Hook before he testifies; however, with only days remaining until the new trial, Butler says he still doesn't have his marching orders.

"They haven't called me, and I haven't gotten a subpoena," he said November 21, eight days after the trial date. "I went down to the police station," he explains. "I told them what I'd seen, and they said they would get back with me."

The prosecutor in the case, Charlottesville Assistant Commonwealth's Attorney Katherine Peters, has not returned the Hook's repeated calls for comment about whether Butler has since been served with his subpoena and why it's taken this long to serve him. To veteran defense attorney Debbie Wyatt, this kind of lag seems unusual.

"It certainly raises an eyebrow," says Wyatt, who has no stake in the case. "It's not common that you can't run down a witness. In this day and age, I can find anybody, and I think the police have more resources than I do."

The trial comes at a particularly momentous time for both Silva and Austin. Silva is a veteran of the wars in both Iraq and Afghanistan and is slated to return to Afghanistan in December as a private contractor. And the couple discovered recently that Austin isn't the only loved one he'll be leaving behind.

"I have just found out I was pregnant at the time of the incident," says Austin.

Despite injuries which Austin says resembled the stiffness resulting from a car accident, she says her unborn baby is fine, but she adds, "It's scary to think it could have been worse."

Silva and Austin stand trial Thursday, November 29 at 9am in Charlottesville General District Court.

[The original print version of this story stated the wrong month that Silva is going to Afghanistan. It has been corrected in this online edition.]

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