No apology: Mitchell charges dropped, city not sorry

Gerry Mitchell won't face charges, but he wants his name cleared.
FILE PHOTO BY JEN FARIELLO

Gerry Mitchell may be an invisible man. Two months ago, he was struck by an Albemarle police cruiser whose driver, Officer Gregory C. Davis, purportedly didn't see him. (Mitchell was then ticketed by Charlottesville police for failing to obey a pedestrian signal, although he was crossing with a green light.) 

Then, on Friday and Saturday, December 21 and 22, as radio and print media trumpeted the news that the charges against Mitchell would be dropped, the wheelchair-bound artist once again went unnoticed– no one thought to notify him of the good news. 

Final proof that 54-year-old Mitchell may actually be transparent: Charlottesville Commonwealth's Attorney Dave Chapman now says he can't see Mitchell receiving an apology, the one thing Mitchell has been asking for since he was thrown from his wheelchair in a West Main Street crosswalk.

"I don't know that it's appropriate for anyone to offer Mr. Mitchell an apology," says Chapman, who confirms the charges against Mitchell will be officially dropped at Mitchell's scheduled hearing January 3 in Charlottesville District Court (after this paper went to press).

And while Mitchell is off the hook, that doesn't mean the officer who hit him is being held responsible. Chapman says there will be no charges filed against Davis, who both Mitchell and a witness claim admitted (before later changing his story) to have been "looking down" when he struck Mitchell.

"This is a civil matter," says Chapman. "What appeared to be clear was that if there was any infraction involved in the incident, it would have been the apparent disregard of the special pedestrian traffic control device. Very clearly, in this instance, the officer had the right of way."

Davis was turning left from Fourth Street onto West Main Street around 10am on November 5 when he hit Mitchell who was crossing West Main– with the green light– in his motorized wheelchair. 

As for the section of code (46.2-924) that dictates drivers turning onto a highway must "at all times" yield to pedestrians crossing that highway, Chapman says the law applies only to drivers turning off private property onto public highways.

Asked where the code makes that clarification, Chapman replied, "I'm not going to debate with you the interpretation of code provisions."

One attorney who is willing to debate code provisions says she has no doubt that Officer Davis has received special treatment.

"There is zero chance that John Doe wouldn't have been ticketed," says retired defense attorney Debbie Wyatt. And the average driver, she adds, would have faced charges more serious than failing to yield. 

"Any time there's an accident, they charge with reckless," she says, "almost as reliably as night follows day." According to Wyatt, the reckless driving statute is a "global catch-all. 

"If you drive in a way that endangers others, it's reckless," she says, adding that determining whether the charges are appropriate should be up to a judge or jury.

Chapman says his office reviewed the charges against Mitchell by interviewing both Davis and his supervisor and watching the video shot from the front of Davis' cruiser, but he admits that neither he nor anyone from his office interviewed Mitchell or any witnesses. The Hook's FOIA'd requests for the video have been denied by officials from both the city and the county who cite the ongoing investigation.

Mitchell says he's pleased the charges will be dropped, but four days after Christmas– a holiday which is, incidentally, also Mitchell's birthday– he says he is still dealing with pain in his arm and shoulder, which he says were injured when Officer Davis and a witness lifted him from the street back into his wheelchair. In addition to the physical pain, he has been repeatedly disappointed by the way officials have handled the case. Mitchell says he's saddened by Chapman's statement that no apology is necessary. 

"To have no compassion or sense of mercy?" he says. "I feel sorry for him." 

He's also struggling to understand why no one notified him that the charges were being dropped.

"I was in shock again," says Mitchell, who learned the news from this Hook reporter on Saturday, December 22. "I felt like I was the last one in Charlottesville to find out," he says. 

Indeed, he may have been. In a front-page Daily Progress article on December 22 about the charges being dropped, Mitchell was quoted as saying, "I'm just happy to be alive, certainly not angry." However, those quotes were taken out of context from an earlier interview, he says, adding that he didn't know the charges were being dropped when the article ran. 

(Progress editor McGregor McCance did not return the Hook's call before this paper's holiday press time on Friday, December 28. The story will be updated online.)

As for official lines of communication, Chapman says ethical guidelines prohibit him from directly contacting a defendant who is represented by an attorney. Mitchell is represented by Lloyd Snook, and Chapman says he spoke with Snook directly on Thursday, December 20, to tell him about the decision so that Mitchell, who is terminally ill after living with HIV and AIDS for 26 years, could be notified. According to Snook's secretary, Snook left a note asking her to call Mitchell, but she was out of the office for the holiday and didn't see the note until after Christmas. Snook, who is out of town until the New Year, could not be reached for comment.

The communication breakdown is just the latest chapter in a case rife with controversy. 

By the time Mitchell learned the news that the charges would be dropped, the decision had been pending for at least 10 days, according a controversial three-page memo written by Charlottesville Police Chief Tim Longo on December 12 and sent to City Council. The memo claimed that police hadn't been aware of any witnesses, and Longo described how after Mitchell's chair was struck it "rolled forward several feet," and Mitchell then "left the chair and fell to the pavement."  

In addition to offering the official police version of the November 5 accident, Longo wrote that the charges against Mitchell wouldn't stick because the code doesn't apply to pedestrian signals that use symbols instead of words. (For full details on that memo, see story page XX)

That means, at least for the time being, that normal crossing laws don't apply at Charlottesville crosswalks employing symbols instead of words. But Chapman says he won't push for the local signals to be changed.

"What needs to happen is for state law to be brought up to date with actual practice," Chapman says. "The device employed is approved for use and is actually a preferable device to one that reads 'walk' and 'don't walk'. A broader range of people can understand the symbol."

Mitchell declines comment on whether he's planning a civil suit– the appropriate channel for redress, according to Chapman. But he says he's not satisfied with simply letting the matter disappear now that the charges are dropped.

 "The public needs to know the real truth, that I am innocent," he says. "This does not say I'm innocent; this says they're letting me go on a technicality, and that's wrong."

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