Without opposition, judges agree to hear appeal of Mark Whitaker’s convictions

By Scott Daugherty, The Virginian-Pilot – 6/5/2019

Former City Councilman Mark Whitaker might be able to clear his name.

After reading a defense petition that drew no opposition from the prosecution, a judge on the state’s Court of Appeals ruled last week Whitaker’s appeal could have merit.

A three-judge panel will hear oral arguments in October.

“This is generally a good sign” defense attorney Jon Babineau said, noting that most appeals are actually dismissed during the single-judge review.

Only about 13 percent of criminal appeals make it to the merit stage, according to 2017 statistics — the most recent available — from the court.

“It signals the judge believes Dr. Whitaker’s case deserves another look,” Babineau said.

Special prosecutor Andrew Robbins did not respond this week to requests for comment.

L. Steven Emmert, an appellate lawyer based in Virginia Beach who publishes Virginia Appellate News and Analysis, said the court’s decision was “obviously good news for any appellant.” But he said there is still a long road to travel.

The court, he said, doesn’t overturn every criminal case it agrees to review.

“You can’t win the appeal at the petition stage,” he said. “You can only keep it alive.”

Whitaker, an assistant pastor at New Bethel Baptist Church, was convicted last year on three counts of felony forgery. Following a three day trial, a Portsmouth jury determined he falsified a contractor’s signature on financial documents.

The jury recommended Whitaker pay only a $7,500 fine and serve no time in jail. Harold W. Burgess Jr., the retired judge from Chesterfield County who oversaw the trial, later upheld the verdict and imposed the full fine.

The original 20-count indictment against Whitaker stemmed from seven $5,000 loans New Bethel’s credit union issued in 2013 in order to hire a subcontractor to clear debris from a nearby property owned by the church’s development company.

Whitaker served as chairman of the credit union at the time.

Burgess dismissed 17 of the charges filed against Whitaker before sending the case back to the jury. He ruled there was insufficient evidence to support them.

He let the three forgery charges for which Whitaker was convicted go forward, though. They involved two loans issued to Valor Contracting and its owner, Kevin Blount.

Blount testified at trial he did not sign the loan documents in question, but signed an affidavit before trial indicating Whitaker did nothing wrong.

All the loans were repaid at no cost to Blount.

Whitaker announced plans to appeal his convictions almost immediately, arguing he was the target of a “well-orchestrated, well-coordinated malicious prosecution.” He said the charges were politically motivated, noting then-Portsmouth Sheriff Bill Watson was behind the investigation. He also complained Commonwealth’s Attorney Stephanie Morales stepped aside from the case.

Following his conviction, Whitaker was removed from office.

While legally not allowed to run, Whitaker’s name was still on the November ballots because his conviction came after they were printed. He wanted to finish in the top three in order to force a special election, but netted only enough votes to come in fifth.

His rights have since been restored. He could run for office again.

Whitaker’s appeal attacks the convictions on three fronts. First, it said the court erred when it failed to quash the indictments prior to trial. The defense argued the special grand jury responsible for the underlying indictments did not follow the law.

Second, it said the court should have struck the three forgery charges relating to Blount along with the 17 other charges. The defense claimed there was insufficient evidence presented at trial to prove Whitaker signed Blount’s name or, if he did, that he didn’t have permission to do so.

Finally, it said the court messed up when it let Robbins argue in his closings that Whitaker’s signature looked like Blount’s forged signature. The defense said Robbins didn’t even authenticate at trial the signatures he referred to as Whitaker’s.

“These errors were so egregious as to require reversal and dismissal of the indictments,” the defense wrote in the petition.