CRITIC: PROTECTIVE ORDERS NOT ENFORCED
DOMESTIC VIOLENCE EXPERT SAYS LOCALITIES LAX
Saturday, January 15, 2000
Enforcement of protective orders is
inadequate across the state, said Ruth Micklem, co-director of Virginians
Against Domestic Violence. State family-violence laws were strengthened in
1997, but "the piece that's lacking is the accountability at the
local level," she said. She was responding to questions raised
following the murder-suicide last week of Alan Craig Smith and Nancy Ann
Smith, and Smith`s wounding of the couple's 15-year-old daughter.
Smith was under a judge's order to have
no contact of any kind with his wife or daughter. A box on the protective
order was checked for "no exceptions." Nancy Smith complained to
authorities the day before she was killed that her husband was telephoning
her, but a Gloucester magistrate refused to issue a warrant charging Smith
with violating the court order.
"It seems very clear that law
enforcement fell down, and that's not uncommon,'' Micklem said The
magistrate, D.G. Wallace, did not respond to a request for an interview.
His supervisor, William J. Poggione, chief magistrate of the Ninth
Judicial District, said Wednesday that magistrates evaluate each situation
to decide whether a violation appears to have occurred. In the Smith:
case, Poggione said Wallace didn't know the terms of the protective order.
Nonetheless, he decided not to issue a warrant for Smith's arrest, saying
the calls were not dangerous. Wallace has about 20 years' experience as a
magistrate, Poggione said. Magistrates are employees of the court system;
they do not work for law-enforcement agencies. They have wide-ranging
powers to bring criminal charges; issue arrest warrants, search warrants
and emergency protective orders; and set bond and release suspects from
jail. Poggione declined Friday to further discuss Wallace's handling of
the Smith case, saying it was a personnel matter.
Kathy L. Mays, media officer for the
Virginia Supreme Court, which is the ultimate authority over magistrates,
said, "We just cannot second-guess what is going on on the local
scene." She called the Smith, deaths "absolutely a tragic
situation." Mays referred questions to the chief judge of the Ninth
Circuit, Prentis Smiley, who could not be reached Friday.
Rosemary Boume, assistant commonwealth's
attorney in Gloucester, said magistrates are in a quasi-judicial position
and "have to make those calls a lot," just as judges have to
interpret the law. Regarding Nancy Smith's complaint, Boume said, "I
can only say what I would have done if the case had come before me. I
would have prosecuted it. I've prosecuted cases where the violation is a
In Newport News, Chief Magistrate Allen
Pack said, "No contact means no contact. No phone calls. No pages. No
e-mail. Nothing." But Pack, Poggione and others said a victim of
domestic abuse who is in a dangerous situation needs more than a piece of
paper from a court. "What is important for folks to know is to get in
a safe place, and not count on law enforcement working," Micklem
said. "The law is only going to work as well as the victim, law
enforcement and the magistrate all work together," said Karen
DiPentima, director of the Victim Assistance Program in Gloucester.
Sometimes, she said, she advises victims not to get a protective order
because it might enrage the abuser. In those cases, she tells them to find
safe shelter and work on establishing a life away from the abuser.
A relatively recent law allows victims
in certain circumstances to get new Social Security numbers for themselves
and their children, so the abuser can't track them, DiPentima said. On the
opposite end of the scale, there are women who falsely claim to have been
abused in an effort to punish their partners, she and others said. `When a
woman comes in, you don't know the whole situation. The accused must have
an opportunity to respond," DiPentirna said. When Poggione was asked
if the "better safe than sorry" adage might have applied when
Wallace made his decision, he responded, "You don't cause people to
be arrested for something they haven't done."
Georgette Durie, who went to her sister
Nancy's funeral Friday, said she was at Nancy's home the night before
Nancy was killed. The phone rang about 10 p.m. and Georgette answered it,
because she knew Nancy wouldn't. It was Alan, calling again. Georgette
already had told him that Nancy didn't want to have anything more to do
with him. No more broken promises, no more marriage. And Nancy had already
told Georgette that she had spoken to a Gloucester deputy that morning
about Alan's phone calls. "She said the deputy said there wasn't
anything they could do," Georgette said. "I just don't
understand all this."
Domestic Violence, 1999
Deaths statewide: 125 (59 men, 50 women, 16 children)
Deaths in the Tidewater Region: 25 (Portsmouth, Isle of Wight, Hampton,
Newport News, Chesapeake, Norfolk, York, Sussex, Southampton, Gloucester)
* The figures include suicides of people
who killed themselves after killing a partner or someone else.
Source: Virginians Against Domestic
Violence, which compiles the figures from newspaper reports. The
organization acknowledges that the figures might be incomplete.
To get help:
OFFICIAL'S INACTION PLAYED TRAGIC ROLE
IN WOMAN'S SLAYING
Sunday, January 16, 2000
Gloucester County magistrate D.G.
Wallace didn't kill Nancy Ann Smith. Her husband, Alan Craig Smith, did.
At the same time, there's no question that Wallace played a role in the
Jan. 8 murder of Nancy Smith, the wounding of her daughter and Alan
Smith's subsequent suicide.
Today, Wallace finds himself embroiled
in tragedy in the most ironic way and a way that hopefully will inspire
changes in how public officials and everyone else confront domestic abuse.
Wallace, who works for the legal system, involved himself by choosing not
to enforce the law.
The magistrate refused to issue an
arrest warrant for Alan Smith the day before Smith went on his deadly
shooting spree. Although Nancy Smith was scared enough to try to have her
husband arrested for violating a no-contact order issued by a judge,
Wallace presumed to overrule the judge by doing nothing.
Wallace hasn't talked about his
decision. His boss says Wallace didn't think that telephone calls Alan
Smith made to Nancy Smith represented a threat. Thing is, Wallace didn't
take the time to find out. The same day that Wallace passed off Alan
Smith's phone calls to his wife as harmless, Nancy Smith told her boss,
"He says soon we'll both be dead." She was talking about herself
and her daughter, and she was half-right. Legal experts say Wallace can't
be sued fur his lack of action. Proving negligence in cases like these is
all but impossible. But the right to sue is not as important as the right
of abused women to protection. Juvenile and Domestic Relations Judge
Isabelle AtLee ruled from the bench that Alan Smith should have no contact
with his wife. The judge didn't say no threats or no physical
confrontations. She said no contact.
The judge obviously thought that the
couple needed some time apart, whether or not Alan Smith agreed. She tried
to put the force of the justice system behind that desire. Relatives and
friends agree the Smiths needed to cool off Alan drank, they say. His
abuse of alcohol was bad enough that he himself realized he should enter a
recovery program. On Jan. 3, Nancy Smith called the Gloucester Sheriffs
Department to say her husband had assaulted her during an argument. The
record shows no other history of violence by Alan Smith toward his wife or
daughter. On the other hand, the judge heard enough to persuade her to
separate the couple. Indeed, the petition that AtLee acted on in issuing
the no-contact order said Alan Smith had threatened to kill his wife.
The question for Wallace - and others
caught in the tangled web of domestic troubles - is this: Why second-guess
the judge? In cases of spousal abuse, the system works poorly enough.
Battered spouses often fear their abusers so much, they won't file charges
against them. As a result, some communities, including Gloucester, operate
domestic-abuse-prevention programs that force police to charge and arrest
suspected wife-beaters if there's clear evidence of abuse. This, in turn,
forces magistrates to issue 72-hour emergency protection orders. A court
All this happened in the Nancy Smith
case. The system broke down at the point where Wallace broke ranks. He
didn't see AtLee's no-contact order before refusing to issue a warrant for
Alan Smith's arrest. The order was on file in the Sheriffs Department
about 30 feet from his office. Perhaps Wallace didn't bother to walk those
30 feet or ask a deputy to do it for him because he knew all he'd find was
a standard form containing few, if any, particulars.
Sure enough, Nancy Smith's form mentions
nothing about a death threat. What the no-contact order does include is a
box that reads, "No exceptions.' Judge AtLee checked that box.
Magistrate Wallace did something worse than ignore her mark. Lie didn't
bother to look for it. Instead, he substituted his judgment for the
No one can say that Nancy Smith would be
alive today if Wallace had not done that. But they would be able to give
the next best answer: The system did all it could to protect her.
AREN'T ENFORCED, ADVOCATE SAYS
Sunday, January 16, 2000
A woman's murder a day after
she unsuccessfully sought help from a court is further evidence that
enforcement of protective orders is inadequate across the state, a
domestic violence expert said. State family-violence laws were
strengthened in 1997, but "the piece that's lacking is the
accountability at the local level," said Ruth Micklem,
co-director of Virginians Against Domestic Violence.
She was responding to
questions raised following the murder-suicide earlier this month of
Alan Craig Smith and Nancy Ann Smith,
and the wounding of the couple's 15-year-old daughter. Alan
Smith was under a judge's order to have no contact of any kind with
his wife or daughter. A box on the protective order was checked for
Nancy Smith complained to
authorities the day before she was killed that her husband was
telephoning her, but a Gloucester magistrate refused to charge Alan
Smith with violating the court order. "It seems very
clear that law enforcement fell down, and that's not uncommon,"
The magistrate, D.G. Wallace,
did not respond to a request for an interview. His supervisor, Chief
Magistrate William J. Poggione, said Wednesday that the telephone
calls were not dangerous. Rosemary Bourne, an assistant
prosecutor in Gloucester, said magistrates "have to make these
calls a lot," just as judges have to interpret the law.
Regarding Nancy Smith's
complaint, Bourne said, "I can only say what I would have done
if the case had come before me. I would have prosecuted it. . . .
I've prosecuted cases where the violation is a phone call." In Newport News, Chief
Magistrate Allen Pack said: "No contact means no contact. No
phone calls. No pages. No e-mail. Nothing."
INVESTIGATION LOOKING INTO CASE HANDLING
WOMAN COMPLAINED ABOUT HUSBAND TWICE ON DAY BEFORE SHOOTING
Saturday, January 22, 2000
A magistrate's handling of a domestic
violence case that ended in murder and suicide is under investigation, but
the magistrate can't be questioned because he is ill, said the chief judge
of the 9th District. General District Judge Merlin Renne, who is in charge
of 9th District magistrates, said D. Gordon Wallace is suffering from high
blood pressure and work-related stress, and is on medical leave.
On Jan. 7, Wallace declined to charge
Alan Craig Smith with violating a protective order that said he was to
have no contact with his wife, according to a police report. Early the
next morning, Smith shot and killed his wife, Nancy Ann Smith, and
himself, and wounded their 15-year-old daughter. The sheriffs office
confirmed Friday that Smith had spoken twice with deputies on the day
before she died about her concerns about her husband - once in the morning
and then again six hours before she was killed.
Regarding the investigation into
Wallace's decision, Renne said, "The question that we don't have the
answer to is `Exactly what information did the magistrate have?' ... This
is a tragic situation, and it needs to be reviewed."
A preliminary investigation indicates a
Gloucester deputy might not have given Wallace enough information to
support a criminal charge, possibly because the deputy was inexperienced
or not sufficiently assertive, Renne said Thursday.
But the deputy, Robert L. Taylor, was
far from "green," Maj. Michael L. Nicely, spokesman for the
Gloucester Sheriffs Office, said Friday. Taylor graduated in November 1998
from the sheriffs office auxiliary police academy, and worked as an
auxiliary officer until he became a full-time deputy in October 1999,
Nicely said. Taylor has had training and on-the-job experience handling
domestic violence cases, Nicely said. In December, Taylor responded to two
complaints of domestic violence and in both cases, arrests were made and
protective orders obtained, Nicely said.
William J. Poggione, chief magistrate of
the 9th District, said last week that Taylor didn't take a copy of the
no-contact protective order to Wallace when Taylor requested a warrant.
Smith had been telephoning his estranged wife at a friend's home and at
her job. So, Poggione said, Wallace didn't know the details of the court
Nonetheless, Wallace decided the order
hadn't been violated. According to Taylor's report and Poggione's account,
Wallace thought the calls were not threatening or dangerous. Renne
conceded Wallace could have walked 30 feet down a hallway to look at the
order, filed in the Sheriffs Office, or asked Taylor to get it. "Why
he wasn't led to ask, I don't know," Renne said. Renne explained,
however, that a magistrate's responsibility is to be impartial, listen to
evidence, and decide if there is probable cause to believe a crime has
been committed - much as a judge or grand jury would listen to evidence
from a prosecutor. Magistrates do not have an investigatory role, Renne
A woman who answered the phone Friday at
Wallace's Gloucester Point home said he was "not available for
comment." Nicely has refused to discuss the details of the
conversation between Wallace and Taylor, or Wallace's decision. In
response to a reporter's question Friday, Nicely checked the log of calls
to the Sheriffs Office on the night before the Smiths died. He confirmed
that Nancy Ann Smith talked with deputies twice on Jan. 7. The first time
was when she told Taylor about the phone calls. Then, at 10:33 p.m., she
called a dispatcher who put her call through to Deputy Steven Enoch.
Nicely said she told Enoch she'd heard
Alan Smith might be driving around her neighborhood. Enoch checked the
neighborhood around midnight, looking for Alan Smith, Nicely said. If
Enoch had seen Alan Smith, he would have arrested him, Nicely said.
About 41/2 hours after Enoch's cheek,
Alan Smith broke into the couple's house, shot their daughter as she ran
away, then killed his wife and himself Renne, experts in domestic
violence and friends of Nancy Smith have noted that she chose to go back
to the home, instead of a shelter, after her husband was charged Jan. 3
with assaulting her and threatened to kill her.
"If she assessed it, that she could
safely stay at home, she must not have taken the threat that seriously
herself" Renne said. "The moral of the story is, don't rely on
protective orders to protect you," Gloucester Commonwealth's Attorney
Robert D. Hicks said Friday. "They give a false sense of security.
... That's the moral of the story, get to a shelter, get out." Hicks
said even if Wallace had charged Alan Smith with violating the order, Alan
Smith probably would have been released - again - on bond. "The only
thing that's going to protect you is for the guy to be locked up,"
and that's unlikely in the American judicial system, Hicks said. He cited
Gloucester County's 223 domestic violence calls to the Sheriffs Office in
1999. "Out of 223 calls, how can you tell that that one is going to
The alternative is to lock up all 223
people, and Americans philosophically have been against keeping people
jailed on misdemeanor charges before conviction, Hicks said.
WHAT TO DO
If you think a protective order has been
violated or isn't being enforced, you should:
- Call the police and report a
violation, contact your lawyer, call a victims' advocate or shelter,
and/or advise the court.
- If the police do not help, contact a
victims' advocate or your lawyer, and file a complaint with the police
chief or sheriff.
- File a private criminal complaint
with a magistrate or commonwealth's attorney.
Source: Family Violence Reference
Manual, 1996, a publication of the
Commission on Family Violence Prevention
WHAT IS A MAGISTRATE?
In many instances, a citizen's first
contact with the judicial system of the commonwealth comes through the
office of the magistrate. A principal function of the magistrate is to
provide an independent, unbiased review of complaints brought to the
office by police officers, sheriffs, deputies and citizens. Magistrate
* Issuing various types of processes
such as arrest warrants, summonses, bonds, search warrants, subpoenas and
* Conducting bond hearings to set bail
in instances in which an individual is charged with a criminal
* Issuing emergency custody orders,
protective orders and involuntary commitments of mentally ill people
* Accepting prepayments for traffic
infractions and minor misdemeanors.
Each judicial district is served by a
chief magistrate and a number of magistrates. The large urban areas
generally utilize hill-time magistrates who work on a shift basis to
maintain an office 24 hours a day. In contrast, the majority of rural
magistrates work on an availability basis and are contacted as needed.
Some magistrates work on a fixed schedule during the day and are "on
call" during the night.
(According to General District Judge
Merlin Renne, chief judge of the 9th Judicial District, full-time
magistrates are paid $30,000 to $40,000 a year, and part timers make
$10,000 to $14,000, possibly less. Magistrates are not required to have a
law degree; most of them are not lawyers.)
Magistrate offices provide information
to the public pertinent to judicial system processes and procedures, and
extend assistance whenever possible 24 hours a day, 7 days a week.
Source: State Code of Virginia and
"Virginia Courts in Brief," published by the Supreme Court of
MAGISTRATE CLEARED IN DOMESTIC VIOLENCE
Wednesday, February 2, 2000
Magistrate D. Gordon Wallace did nothing
wrong in his handling of a domestic violence case that ended in murder and
suicide, the chief judge of the 9th District said Tuesday. On Jan. 7,
Wallace declined to charge Alan Craig Smith with violating a protective
order by telephoning his estranged wife, Nancy Ann Smith. Early the
next morning, Smith shot and killed his wife and wounded their
General District Judge Merlin Renne, who
as chief of the 9th District is in charge of its magistrates, said he and
Chief Magistrate William J. Poggione have completed an investigation and
not changed their previous opinion that a deputy did not give Wallace
sufficient information to support a charge that would have led to Alan
Smith`s arrest. Wallace, who had been on sick leave because of high blood
pressure and work-related stress, returned to his job this week, Renne
According to a police report in an
unrelated case, Wallace on Monday issued a warrant charging a 30-year-old
Hayes man with violating a protective order for telephoning his
ex-girlfriend and threatening that things might get ugly. Renne said that
in the Smith case, Alan Smith called Wallace on Jan. 7 asking for
permission to go to the couple's Kings Creek Road home to get his cat,
which he said hadn't been fed or given water. Wallace told him he couldn't
go to the house unless he arranged with the Sheriffs Office for a deputy
to escort him.
Later the same day, Renne said, Deputy
Robert E. Taylor came to see Wallace with "a scrap of paper with
something scribbled on it" by Nancy Smith, and told Wallace that Alan
Smith had telephoned a friend of his wife's, maybe his wife's boss, and
perhaps tried to call his wife directly to discuss `the situation."
Wallace assumed Smith was calling about
the cat, Renne said. On the scrap of paper, attached to Faylor's police
report, is a written statement apparently by Nancy Smith. It is difficult
to understand and says only that Alan Smith "called and said, `Nancy
please don't hang up on me.' I told him I was" and "called my
friend house and was working for me." According to Taylor's report,
Smith spoke with his wife twice between 6 and 8 am. Jan. 7. Nancy Smith's
boss called the Sheriffs Office and told Taylor at 9am. that Smith was
calling his wife at work. "A warrant was declined by Magistrate
Wallace, who advised that phone calls were not a danger to Mrs.
Smith," Taylor's report says.
Smith was under a court order to have no
contact of any kind with his wife, after being arrested Jan 3 for
assaulting her. Renne said Smith`s blood alcohol level that day was .20.
Renne agreed Tuesday with what Chief Magistrate Poggione said Jan. 12
about Wallace's decision not to charge Smith: It is a deputy's
responsibility to make a full presentation to a magistrate and to advocate
for a charge if the deputy believes a crime might have been committed.
"In this case, that apparently was not done," Renne said. He
added that Smith had no criminal record, there were no complaints of
domestic violence before Jan. 3, and the assault that day resulted in a
small bruise on Nancy Smith's arm.
Maj. Michael L. Nicely, spokesman for
the Gloucester Sheriffs Office, said last month that he would not get into
a public debate with the magistrate's office. Tuesday night, he said his
only statement on the matter has not changed: "We gave the magistrate
the facts, and he chose to do what he did.''
LETTERS TO THE EDITOR
Wednesday, February 2, 2000
A Case of Deadly Indifference? Easy for
him to say
Reference the death of Nancy Ann Smith:
I find it appalling that Gloucester Commonwealth's Attorney Robert Hicks'
solution to the domestic violence issue is to have women and their
children leave their homes and go to shelters because "the
alternative is to lock up all 223 people" who where charged with
domestic violence in 1999.
How long are the families of violent men
supposed to stay in shelters? Who is going to pay for these shelters?
Isn't this the equivalent of putting the victim in prison and letting the
Everyone in this sordid tale is making
excuses for the men of the Gloucester County sheriffs office and court
system. A woman is dead and the only advice to other women in her
situation is to leave home. Hide in a shelter. Don't go to work. He could
find you. Keep your children out of school. He knows where they go. Plan
on living your life in fear because the system will only give you a false
sense of security. You're on your own. God help us all.
Sounds like a coverup
Judge Merlin Renne's report (Jan. 22)
that Gloucester Magistrate D. Gordon Wallace is on sick leave sounds
rather like a coverup in the Nancy Ann Smith case. There had to be a copy
of the restraining order in his files. After Smith spoke to deputies twice
in one day, alarm bells should have rung. The statement that phone calls
are harmless borders on depraved indifference. With the judge's attitude,
the whole general district court system should be investigated.