NEWS- Couple cleared: High-profile police brutality case ends

Defense attorney David Heilberg and his client, Blair Austin
PHOTO BY COURTENEY STUART

After two months of legal wrangling and two trials that took a combined five hours (and even delayed a capital murder hearing), two downtown mall visitors who alleged that a police officer nearly ran over them in a crosswalk were found not guilty Thursday, November 29.

Richard Silva was acquitted of being drunk in public, and his fiancée, Blair Austin, was acquitted of obstruction of justice in Charlottesville General District Court. (Charges against her for drunk in public were dropped mid-trial.) The charges stemmed from an incident at the corner of Second street SE and Water street on the night of September 28 in which Charlottesville police officer Mike Flaherty, while responding to another call, came upon the couple crossing the street.

Silva, Austin, and several witnesses testified that Flaherty nearly collided with the couple, and in rendering his decision in Silva's case, Judge Bob Downer said he wasn't able to conclude that Silva was drunk. "There's no question that Mr. Silva was startled, as anybody would be," the judge said.

As for Austin, whom Flaherty acknowledged he "shoved" while arresting Silva, Downer ruled that while "her judgment was poor" in hanging onto her fiancé while Flaherty handcuffed him, he wasn't confident that she "had the intent to obstruct what the officer was doing."

"I'm happy about the outcome," says Silva, "but what saddens me is that if this were an individual who couldn't afford an attorney, he would have accepted a guilty plea. Thank God I've got a good-paying job, and thank God for the witnesses."

Flaherty's actions seemed to be as much at issue as the couple's. While nobody quite agreed on how fast Flaherty was driving down Second street (witness estimates ranged from 15 to 50 miles per hour), all agreed that the vehicle's bumper came dangerously close to Silva as he and Austin attempted to cross Water street. Even prosecution witness Gordon Butler, a cab driver who was waiting for a fare near the back of the nearby CVS pharmacy, acknowledged that Silva acted "like he was scared or he was going to get hit."

Flaherty testified he'd been responding to a call for back-up from his former partner, Officer Robert Haney, at Timberlakes Drug Store.

 "In five years, I've rarely had Officer Haney call for help," he testified, "and that raised my alert."

Flaherty said he could hear a dispute in the background, and when Haney didn't respond to radio calls, Flaherty accelerated down Second street toward Water, where he met Silva and Austin. Although his fellow officer's fate was still unknown, Flaherty testified that Silva's behavior convinced him the matter was one of public safety, so he aborted his response to Haney's call.

"If I'm going to a call and encounter something on the way," he said, "I have to deal with it."

Friends of the couple testified that Silva consumed just two to three drinks during and after his Downtown Mall birthday dinner that evening.

From the time Flaherty stopped his Jeep to the time he arrested Silva (which he says took about a minute), the officer says, he observed Silva "bobbing and weaving" with "bloodshot, glassy eyes," that his speech was "slightly slurred," and that Silva had "puffed up his chest." The only sign of intoxication mentioned by other witnesses was Butler's assertion that Silva was "laughing, joking around, and being belligerent."

Despite several other witnesses who painted a vastly different picture, including multiple testimonies that Flaherty arrested Silva immediately upon exiting his police vehicle, Downer agreed that Flaherty had probable cause for an arrest. But he added that he wasn't "satisfied beyond a reasonable doubt" that Silva was drunk.

Prior to closing arguments, Austin's own public drunkenness charge was dismissed due to lack of evidence, leaving only the obstruction charge. Flaherty asserted that he could hear Austin before he saw her.

"Her heels were clicking," the officer testified, "as she came up behind me."

Neither Flaherty nor any other witness testified that Austin touched the officer. Instead, Flaherty said he had handcuffed one of Silva's hands when he observed Austin grab her fiancé's arm. At this point, in accordance with his police training, Flaherty said, he extended his open palm and "pushed her on the upper arm," and Austin fell to the ground.

Others saw the push differently.

"He put both hands on my chest, and I fell on my back," said Austin.

"He struck her," said 225-pound defense witness Chris Ryan. "I'm not a small guy, but if I'd been flat-footed, he would have knocked me down."

Shortly before the case began, another drunk in public case was dispatched with a not-guilty verdict after less than five minutes of testimony. Asked after the five-hour Silva-Austin trials if she felt concerned about the level of City resources mustered for these misdemeanor infractions, including the subpoena of a reporter, prosecutor Katherine Peters said, "We don't pick and choose our cases."

"Here, the police and the Commonwealth got all defensive because of all the publicity," said defense attorney David Heilberg, likening the situation to Albemarle County's prosecution of four teens last year. "They had this press conference, 'We've got these Columbine kids.' How do you back down from that?"

Downer, perhaps anticipating that Austin might bring a civil suit against Flaherty, noted in his ruling that he did not find fault with the way in which Flaherty got physical. "Officer Flaherty was entirely justified in reacting immediately to prevent any interference," he said.

Austin said she's not sure whether she'll sue Flaherty, but that "an apology would be nice."

Silva said the couple planned to go out to dinner Thursday night to celebrate, but he noted wryly, "I'm going to make sure everybody counts how many drinks I have."

#