Judge rules parents can’t remove embattled prosecutor from fatal boating crash case

Posted at 2:02 PM, Jul 30, 2019

KING GEORGE COUNTY, Va. — In a tiny, cramped King George courtroom, Judge Herbert Hewitt ruled the parents of a boating crash victim did not have legal standing to remove the prosecutor representing them against the man charged with involuntary manslaughter in their son’s death.

Judge Hewitt told the courtroom he was “unpersuaded that they {the victims] have a legal right that will be compromised” if Smith stays on the case before dismissing a motion filed by an attorney hired by Graham McCormick’s parents to remove Lancaster County Commonwealth’s Attorney Jan Smith from the case.

Sallie Graham and Burke McCormick, the victim’s parents, argue Smith, who is an elected official, has shown the appearance of impropriety, the appearance of incompetence, the appearance of lack of impartiality, and/or alleged improper ex parte communications with the court, throughout the case.

McCormick was killed in a boating accident on the Rappahannock River in August 2017.

McCormick’s friend, Rand Hooper, is charged with involuntary manslaughter.

Graham McCormick

According to investigators, Hooper was piloting the boat drunk when it crashed into a bulkhead, throwing McCormick overboard.

They said Hooper then left the scene without trying to find and help his friend.

Prior to the hearing, Smith stood outside the courtroom and chatted with the three defense attorneys representing Rand Hooper.

The McCormick family said Smith did not interact with them at all.

“He completely ignored us,” Gordon McCormick, the victim’s brother said.

Inside the courtroom, Sallie Graham and Burke McCormick, sat at one table with the attorney they hired to represent them in their effort to get Smith disqualified: Greg Habeeb from Gentry Locke.

Jan Smith, Hooper’s defense attorneys, and Hooper all sat together around the other table.

Jan Smith

Habeeb, a former member of the General Assembly, argued that he understood the “unique nature” of his motion to disqualify Smith, but “a system where the process and players are flawed doesn’t do anyone justice.”

Habeeb claimed that Smith made a “misrepresentation to the victims in an attempt to coerce a plea deal.”

He is referring to alleged conversations McCormick’s father and Chip Woodson, the man who owns the property where McCormick’s body was found, said they each had with Smith, where Smith told them  that he had a conversation with Lancaster County Judge Michael McKenney about the case and McKenney shared some doubts to him about the Commonwealth’s case.

A civil lawsuit was settled, but the criminal case was supposed to go to trial on June 19, yet a trial never happened because according to McCormick’s family, Smith negotiated a plea deal with Hooper’s attorneys where Hooper would plead guilty to two felonies in exchange for one year in a local jail.

Rand Hooper

It’s a deal the McCormick family does not believe is tough enough.

“I would really like to see somebody take this to trial and give it the trial that it deserves,” Gordon McCormick said.

Woodson was so outraged by that apparent breach of legal ethics that he wrote the judge.

“I just want justice to be done. That’s what I wanted, and I couldn’t tell what was going to happen, so when I had to chance to say how it impacted me, I wrote the letter,” Woodson said.

On June 19, Judge McKenney recused himself from the case, telling a stunned courtroom that he never spoke to Smith about the case and wanted to restore integrity.

Judge Hewitt is the new judge presiding over the case and on the day on Tuesday’s hearing he had a docket in King George court.

Jan Smith argued that Virginia Code does not give McCormick’s parents “any right to challenge my standing,” requesting that the judge dismiss Habeeb’s motion.

Craig Cooley, one of Hooper’s attorneys, then stood and argued that there is no statutory provision providing for the McCormick’s to disqualify the Commonwealth’s Attorney from the case.

In the end, Judge Hewitt agreed that the McCormick’s did not have legal standing to disqualify Smith and dismissed the motion.

Jan Smith, who up until this point has declined to answer questions from CBS 6 related to the case, told CBS 6 investigative reporter Melissa Hipolit, “I can’t talk about pending cases.”

Jan Smith

Cooley politely declined to discuss the case or the hearing’s outcome.

Hooper hugged family members outside the courthouse before driving away in his BMW.

Gordon McCormick said he was disappointed by the outcome, but he understands state law does not permit his parents from disqualifying Smith.

“If you’re a defendant you can hire any attorney you want, but if you’re the victim you don’t get your choice, you get whoever is in office, and if that person has a personal agenda… you’re just kind of without any luck,” McCormick said.

He said he believes the state needs to do more to hold Commonwealth’s Attorneys accountable.

“Typically, when you break somebody’s trust, privileges need to be taken away. The privileges of a Commonwealth’s Attorney to have infallible, ultimate control, ultimate power, probably needs to be in check. I’m not sure there is another elected official who has that much control.”

The next hearing in the case is scheduled for August 19.



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