How Norfolk’s progressive prosecutor ended up in the crosshairs of debate over rising crime

When Norfolk officials held a September press conference following a night in which three people were killed and 11 others injured, Mayor Kenneth Alexander, City Manager Larry “Chip” Filer, Interim Police Chief Michael Goldsmith and Sheriff Joe Baron spoke. Conspicuously missing was Commonwealth’s Attorney Ramin Fatehi, who had not been invited.

Alexander did not mention Fatehi by name. But a portion of his remarks pointedly referred to the prosecutor’s office.

“Those committing crimes must be held accountable in our courts. A strong and effective prosecutorial team is critical to the safety of our city and for the voice of victims,” Alexander said. “Norfolk residents deserve a prosecutorial philosophy and practice that keeps offenders off the streets.”

Alexander’s comment referring to “prosecutorial philosophy” has its foundation in Fatehi’s self-identification as a “progressive prosecutor.” Fatehi, who won 60% of the vote in the Democratic primary, campaigned as an advocate of criminal justice reform, saying jail or prison should be a last resort when there are no alternatives or public safety is at risk.

But as Norfolk experienced a jump in violent crime — the city saw 63 murders in 2022, the highest number in nearly 30 years — there has been a quiet campaign against his policies that also questions the competency of his office.

Fatehi’s office has fed into those criticisms with a string of courtroom failures in high-profile murder cases and a spate of departures. Since he won the Democratic primary in June 2021, virtually assuring his election, at least 22 lawyers in the Norfolk Commonwealth’s Attorney’s Office have left, about two-thirds of them for prosecutors’ offices in Chesapeake, Suffolk and Virginia Beach.

A ‘progressive prosecutor’

Since he took office in January 2022, Fatehi has followed through on campaign promises to reform Norfolk’s approach to prosecution. In an 11-page memorandum sent to his staff in March 2022, he outlined a series of policies intended to “combat explicit and implicit bias, mass incarceration, the school-to-prison pipeline, and the criminalization of poverty, homelessness, mental illness, and substance-use disorder.”

Writing that mandatory minimum sentences “present a significant possibility of over-punishment,” he required prosecutors to seek a supervisor’s approval of any sentence exceeding 30 days. (Prosecutors can use plea agreements to work around mandatory minimums, which Fatehi told the Mercury “force judges, whom the General Assembly elects because of their discernment, to impose sentences regardless of whether that outcome is appropriate.”)

Where a fraud or larceny case involved a loss of $2,500 or less, he wrote that prosecutors should consider a plea reducing any felony to a misdemeanor. While magistrates set bail, he said the office would continue a policy of not seeking cash bail. And he told prosecutors to consider reducing simple felony drug possession cases to a misdemeanor unless the accused demonstrated a risk to others.

Similar policies have been pursued in cities like San Francisco, Philadelphia, Chicago, Boston and Houston. But as crime surged in the past two years, prosecutors in those cities have faced recalls and criticism from mayors and police chiefs, who blame the upticks in violence on progressive approaches.

Fatehi was no exception. Norfolk’s 2022 homicide total was the highest the city had seen since the mid-1990s. In 2021, there were 62 murders. From 2012 through 2019, the city suffered between 29 and 43 murders annually.

Philip G. Evans II, who served 27 years as a Norfolk prosecutor, in March 2021 noted the city’s violence problem in an 18-page memorandum to City Council shortly after his retirement.

“Violent crime has been a constant over the last few decades in the city,” he wrote. “Sadly, although the trends over time with respect to upper-end violent crime are disturbing, no one seems to want to address this issue.”

But while Evans acknowledges Norfolk’s ongoing problem with crime, he points to progressive prosecution philosophies like those of Fatehi’s office, which he says do not factor in victims or accountability, as a driver of the recent increases.

“If you look at the homicides (in 2022), you have a marked increase of people just killing each other in broad daylight in front of multiple witnesses,” he said in an interview.

That change, he added, boils down to people thinking they can get away with it.

“The community has to believe that if they report a crime, if they describe being a witness to a crime, that the person who committed the crime will be held accountable in court,” he said. “If they do not have that respect for the system, then the danger that they have of cooperating, namely retaliation, will tip the balance in favor of not coming to court and not cooperating.”

Fatehi, though, dismissed those criticisms, pointing to the root causes of crime as poverty, economic insecurity and the flood of guns, all exacerbated by the pandemic everywhere, not just in cities with progressive prosecutors.

“The increase in violence that we saw nationwide — red cities, blue cities, cities with reform prosecutors, cities with traditional prosecutors — coincided with COVID, with the shutting down of schools, the shutting down of work, the limiting of access to lifelines for potential victims,” he said. “This is not a Norfolk problem. And it’s not a Virginia problem. It’s an everywhere problem.”

What fuels rising crime?

Numbers support Fatehi’s contention that the problem isn’t isolated to Norfolk. But divining the why of rising crime, as with any trend, is difficult.

Violent crime rates in 2020 were far below those between 1985 and 2009, according to FBI statistics. What did rise nationwide in the last two years is the murder rate. One study by New York University Law School’s Brennan Center reports homicides rose 30% in 2020. A mid-2022 report from a police chiefs association said homicides in major cities were down slightly nationwide between 2021 and 2022, but with mixed results depending on the city. Killings were up in Dallas, Indianapolis, Milwaukee, New Orleans, Phoenix, San Antonio and Tulsa, for example, and down in Austin, Boston, Columbus, Miami and Portland.

Researchers have pointed to various factors as reasons for rising crime, saying prosecutors are only one part of a mosaic affecting the crime rate. A Brookings Institute report noted increases in gun homicides were largely concentrated in “disinvested and structurally disadvantaged neighborhoods that had high rates of gun violence to begin with,” a situation mirrored in Norfolk.

The Federal Bureau of Investigation also cautions against making conclusions about crime in various cities, citing 13 variables as affecting such patterns. Those include economic conditions, population density, citizens’ attitudes toward crime, youth concentration, the strength of local law enforcement agencies and the policies of the criminal justice system, including prosecutors, judges and corrections.

Fatehi too argues factors other than his policies are responsible for the jump in violent crimes.

“There are systems-level problems that have led to the increase in crime, from COVID to an unprecedented shortage of police in Norfolk,” he said. “Certain people in the political class are looking for cover and looking for someone to blame. And the fact that I am willing to say, ‘This system has caused harm, I will not perpetuate harm in the system, I will punish people as appropriate, I will divert people as appropriate, I will deal with racial disparities,’ feeds into the Republican crime narrative in a way that people will criticize me. If I said, ‘I will lock everybody up forever,’ I would not get criticized.”

Staff departures

Nevertheless, a string of staff departures and a series of high-profile courtroom losses have fueled suspicion of Fatehi and his approach.

At least 22 prosecutors left the office in the 18 months after he won the primary and was assured of victory in Democratic-dominated Norfolk. About two-thirds of them moved to prosecutors’ offices in Chesapeake, Suffolk, and Virginia Beach.

Critics like Evans say that the attorney turnover means a loss of experience, expertise and mentorship for new prosecutors.

“There are a lot of people who pass the bar exam. There are a lot of people who maybe have practiced for a while doing things, but there aren’t a lot of people that can handle prosecution in a high-volume violent crime area,” he said.

While Fatehi concedes some lawyers departed because they disagreed with his approach, he also said others left for better salaries with lower caseloads.

“I suffer from the same susceptibility to poaching that the Norfolk Police Department is suffering from. People don’t get paid enough,” he said. “They are asked to do extremely difficult work, very technically complex work. Any given case going on in any given week in the Norfolk circuit courts would be the case of the year in other places.”

Furthermore, he noted, two veteran prosecutors with extensive trial experience moved from Richmond to join his office during his tenure. Another former circuit court judge who had not been reappointed became a deputy commonwealth’s attorney.

Former prosecutors in Fatehi’s office contacted late last year declined to comment.

High-profile losses

More difficult for Fatehi to explain are a series of legal missteps.

In early December, Shavyonne Vick was acquitted of killing a 21-year-old at a family party in May 2021. The jury deliberated for only 10 minutes before handing down its verdict.

Vick’s attorney, Eric Korslund, said several of Norfolk prosecutors’ moves in the case were unusual. The co-counsel who made the opening, closing and rebuttal arguments for the prosecution was a lawyer who had just passed the bar in July and had never worked a jury trial. Korslund said while the attorney did a good job, he could not remember another instance of a prosecutor working a murder trial as his first jury case.

And just before trial, Korslund said prosecutors asked for a continuance because they had found a lab report on the bullet lodged in the victim’s face.

“I was outraged,” Korslund said. “It’s just gross negligence. It’s no respect for the deceased. It’s no respect for the deceased’s family. It’s no respect for this community. They need to do their job.”

The judge denied the continuance motion and excluded the report. Korslund said he didn’t think it affected the outcome because body cam footage from the scene cast doubt on the testimony of a key witness who identified Vick as the shooter.

It wasn’t the first time the office had missed deadlines or failed to file evidence. In an April case that had been pending for three years, Fatehi sought a continuance because he wasn’t ready for a jury trial even though jurors had been called for the case. His reasoning, he told a judge, was that he thought a plea agreement was going to be reached and some of his witnesses were not available.

In the end, the defendant, Remono Newby, agreed to a plea that reduced a second-degree murder charge with a maximum of 40 years in prison to voluntary manslaughter.

“Newby pleaded guilty to manslaughter, just as his two codefendants did. He faces sentencing in a range of 10 to 13 years,” Fatehi said. “There were risks of going to trial on both sides due to difficulties in the facts of the case for both parties.”

Prosecutors from Fatehi’s office also made fatal mistakes in a cold case, the killing of U.S. Rep. Elijah Cummings’ nephew Christopher a decade ago. In that case, charges against the man police said was the shooter were dismissed after the judge banned the introduction of the evidence and most of the witnesses. The prosecutor said a box of police notes and documents, including forensic evidence, witness statements, transcripts of jailhouse calls and investigator’s notes, had not been provided to the defense until five days before the trial. The office had also failed to provide a complete witness list, as required by statute.

Another defendant in the case also had all charges against him dropped for similar reasons. A third was retried following a mistrial and then acquitted. A fourth, the only defendant to be convicted, was sentenced last week to 25 years in prison for conspiracy to commit murder and robbery.

“This office made mistakes,” Fatehi concedes. He said he had not been involved in the decision to bring charges in the cold case. But, he added, “They were my prosecutors, and therefore I am responsible for those mistakes as the captain of the ship.”

“We’re all human, we all make mistakes,” Korslund said. “But when they’re repeated, it’s a pattern. And it’s a choice. And these mistakes have been repeated and repeated and repeated. “

For Korslund, who represents numerous defendants in high-profile cases, those results mean he’s more likely to advise clients to ask for a jury in Norfolk.

“Out of all the cities, if I have clients charged with a crime and the facts are the same in Norfolk, I’d be most inclined to say I want a jury,” he added. “I think there’s a chance that they’re not going to file stuff on time. They’re not going to subpoena witnesses.”

Most cases, though, are concluded with plea agreements. There, too, Fatehi’s office has run into trouble. In years past, judges rarely refused agreements between prosecutors and defense attorneys. But, according to Fatehi’s records, judges rejected at least 29 plea agreements his office sought last year. Most of the rejections came in early 2022 and dealt with a range of crimes, ranging from malicious wounding and aggravated sexual assault to making a false statement and child endangerment.

“It’s significantly higher than we’ve seen historically,” Fatehi said.

Fatehi, though, remains firm in his belief that his way is the just way. Did the rise in crime during the first part of 2022 prod him to reconsider his policies?

“Absolutely not. These policies promote public safety,” he replied. “This is always a false charge against reform prosecutors — which is if you take your boot off of the necks of low-level offenders that you’re going to promote chaos. … People should be held accountable to the extent necessary, but no more than necessary.”

Tomorrow: Part 2: Violent crime in Norfolk is up. The jury is still out on why — and what to do about it.