A 21-year-old Richmond woman wearing a bandana over the bottom half of her face in a crowd of about 22,000 people, many of whom also had their faces covered on a freezing Monday morning, was the only person charged under a state law that prohibits masks. It was the only charge that resulted from a gun rights rally on and around the Capitol grounds in response to Democratic gun law proposals that had the city under a state of emergency for five days because of threats from extremist groups.
Two legal experts and the woman’s attorney said the case is an example of selective enforcement and have called for the charge to be dropped.
Many among Monday’s crowd, which was predominately white and male, were heavily armed with pistols and rifles and sheathed in body armor. Mikaela E. Beschler was charged with a felony after police said she was warned twice before to remove her mask. She faces up to five years in prison.
Defense attorney Mackenzie L. Clements, who is representing Beschler along with Matthew D. Fender from McGuireWoods, said that she didn’t want to comment on the case, but added that she doesn’t understand “why they charged [Beschler] and no one else.”
Claire Guthrie Gastañaga, executive director of the state’s branch of the ACLU, said she walked among the mass of people at Monday’s rally. She said she saw “hundreds of white men wearing masks, carrying guns,” who were not asked to remove their masks.
“That is not OK,” she said. “We have too many laws in the books that are being enforced differently based on who you are and how you look.”
A Richmond officer had warned Beschler on two earlier occasions that day to adjust the bandana covering her face, according to a statement from the Joint Information Center, which was staffed Monday during the rally by spokespeople from the Capitol Police, Virginia State Police and Richmond Police Department. She was arrested during a third interaction with the officer around 1:30 p.m. in the 800 block of East Broad Street, about an hour after the rally concluded and less than a half-mile from the Capitol.
Richmond police would not comment for this story.
“Our primary goal Monday was overall safety. We’re not going to comment beyond that,” said Joe Macenka, spokesman for the Division of Capitol Police.
Beschler caught the second encounter with Richmond police on video, which she posted to an Instagram account under her name before she was arrested, according to the online timestamp. In it, four officers in an SUV pull up in front of Beschler, who is filming passersby at the corner of Broad and Eighth streets. The officers say they’ll arrest her if she doesn’t remove her mask.
“This is the second time we’re telling you,” an unidentified officer appears to tell Beschler in the video. The officer in the video wore a reflective vest that covered his badge and name plate, in effect hiding his identity. “We tell you one more time, it’s a Class 6 felony.”
Beschler lowered the bandana and replied: “I’m just trying to keep my face warm.”
It’s unclear whether Beschler was participating in the rally, protesting it or observing. She declined to comment, referring questions to her attorney.
The officers continued to watch her for the remainder of the six-minute video. It’s unclear how long after that she was arrested.
In the video, she does not appear to be displaying a firearm.
The 1950s-era law — aimed at unmasking the Ku Klux Klan in Virginia — that Beschler is charged with violating makes it illegal for anyone over the age of 16 to conceal their face in public with the intent to also conceal their identity. Prior to her arrest, Beschler on Monday had shown the officers her face and posted a video online to an account that identified her by name and also showed her face.
Dana Schrad, executive director for the Virginia Association of Chiefs of Police & Foundation, said there are two areas of interpretation of the law:
“One is what constitutes a mask, and two, proving the intent to conceal one’s identity,” Schrad said in an email. “An officer would have to be able to prove to the court that the item is in fact a mask (not an item of winter clothing meant to protect you from the cold) and two, that you intend to conceal your identity. Commonly, an officer will ask someone who is wearing an item that is considered a mask (by process of elimination of other allowed items) to remove the mask and reveal their identity. When the person refuses to comply with the officer’s request, then the officer could argue that the individual intended to conceal his or her identity since the individual didn’t comply with the request to remove the facial covering.”
When told that Beschler had complied with the officers’ requests to reveal her face, Schrad said she couldn’t speculate.
“That’s a fact-finding question for the court — and the police would have to be able to provide evidence that they believed she was trying to hide her identity,” Schrad said.
The line requiring an intent to conceal a person’s identity was added to the law in an amendment in 2014.
Attorney David P. Baugh said he thought Beschler has “a strong constitutional defense” arguing that people have a right to protect their identity. Selective enforcement is certainly another argument for the court, he said, along with the argument that she wasn’t trying to hide her identity but trying to “keep [her] nose from falling off.” Temperatures on Monday didn’t rise above the 30s.
Baugh called the law strange, saying he “was so amazed that there was a mask statute in Virginia.”
Many other states, including New York, Ohio, West Virginia, Alabama, North Carolina, Florida, Georgia, North Dakota and Michigan, have similar bans. Many originated at the same time as Virginia’s in response to KKK activity.
It’s unclear how many cases have been charged under the law: Data requested from the Virginia Criminal Sentencing Commission and the Office of the Executive Secretary for the Supreme Court of Virginia wasn’t available by Friday.
On Thursday, Beschler appeared for the first time in Richmond General District Court, where a preliminary hearing was set for Feb. 12. At next month’s hearing, a judge will decide whether to certify the charge to circuit court.
Beschler declined to comment, referring questions to Clements, who also declined to comment directly on the case. Clements has practiced law in Virginia for more than a decade and said she’s only seen this charge combined with another crime, like robbery.
“It makes sense when someone is trying to conceal their identity in coordination of another crime,” Clements said. “But I don’t know why they chose her. We intend to zealously defend her, and hope the charge is dropped.”
Richmond’s Commonwealth’s Attorney Colette McEachin said her office “will treat this case like any other case.
“We will review the facts of each case that led to an individual being charged, discuss those facts with the defendant’s attorney, consider any information that the defense attorney decides to provide the prosecutor, and then make a fair decision based upon all the available evidence,” McEachin said in an email.
Democrats in the House and Senate are gearing up to reconcile gun control measures that are moving through both chambers with different or contradictory provisions.
That includes two key proposals in the gun control package Gov. Ralph Northam backs — legislation calling for universal background checks and a “red flag” law that would allow the temporary removal of guns from people in crisis.
The Northam administration signaled Friday that it is backing the House versions of those proposals, which cleared a House panel Friday without amendments.
The House universal background check bill, House Bill 2, introduced by Del. Ken Plum, D-Fairfax, would apply to all firearm sales and transfers, whereas the version that cleared the Senate exempts non-commercial transfers. The House version carries the penalty of a felony. A violation would be a misdemeanor in the Senate version, Senate Bill 70, introduced by Sen. Louise Lucas, D-Portsmouth.
The red flag bill, Senate Bill 240, introduced by Sen. George Barker, D-Fairfax, was changed from its initial version before the Senate passed it Wednesday on a 21-19 party-line vote. The bill would now allow people subject to a red flag order to voluntarily turn over their firearms. If they don’t, law enforcement would be required to seek a warrant to search a person’s home.
The House version, House Bill 674, introduced by Del. Rip Sullivan, D-Fairfax, like the first version of the Senate bill, would allow police to look for guns immediately when serving the red flag order.
The House version cleared the chamber’s Public Safety Committee on Friday on a 13-9 party-line vote, as did Plum’s background check bill and several other gun control measures.
Secretary of Public Safety Brian Moran called the passage of those bills a “real victory for the governor and for the safety of Virginia,” adding that the administration would review the Senate bills to figure out room for consensus.
“This is a process, but what we saw today was a clear support of the governor’s gun violence prevention package, word for word without amendment,” he said in an interview. “We’re very pleased.”
The House panel also approved a one-handgun-a-month limit — House Bill 812, sponsored by Del. Jeion Ward, D-Hampton; House Bill 1004, sponsored by Del. Mike Mullin, D-Newport News, which would ban firearms for people with restraining orders; and House Bill 1083, sponsored by Del. Cliff Hayes, D-Chesapeake, that would increase the penalty for “recklessly” exposing children to loaded firearms from a misdemeanor to a felony.
In addition, the committee backed House Bill 9, sponsored by Del. Jeff Bourne, D-Richmond, that would require the owner of a lost or stolen firearm to report it to police within 24 hours; and House Bill 421, sponsored by Del. Cia Price, D-Newport News, that would grant localities more authority over guns and ammunition in their localities.
Mullin’s bill on people with protective orders passed 20-2. Seven Republicans, including Dels. Roxann Robinson and Carrie Coyner of Chesterfield County, joined the 13 Democrats in backing the measure. Robinson and Coyner also joined the 13 Democrats in backing Bourne’s measure on reporting lost or stolen firearms.
Despite differing language on some bills, the General Assembly appears poised to approve at least seven of the eight measures pitched by Northam.
Notably, the House panel tasked with examining gun control measures did not take up House Bill 961, an assault weapons ban introduced by Del. Mark Levine, D-Alexandria, and backed by the Northam administration.
A spokesman for House Speaker Eileen Filler-Corn, D-Fairfax, said the caucus is tinkering with the proposal, which has not yet been scheduled for a hearing.
“It’s still being worked on,” he said. “We’re working on the mechanics.”
The administration had leaned on Sen. Adam Ebbin, D-Alexandria, to file similar legislation in the Senate, but Ebbin declined. Ebbin declined to publicly comment on the matter.
Moran said Friday that the administration will count on the House’s version.
“That’s a tough piece of legislation. We recognize that,” said Moran, adding that he is working through concerns with the bill. “We have time to try to resolve those issues, and we still look forward to a piece of legislation proceeding through the session.”
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A nearly $900 million five-year capital plan adopted by the Henrico County School Board last fall has been met with scrutiny from county officials, signaling a potential delay for the replacement of several aging school buildings.
At the Henrico Board of Supervisors’ annual retreat on Friday, County Manager John Vithoulkas said that it is unlikely the county would consider implementing the plan and advised that county and school system officials should meet soon.
With the county and its school division currently preparing their capital and annual operating budgets for the fiscal year that begins July 1, funding for the school system’s capital plan could become a point of contention, as the Board of Supervisors has final say.
During Friday’s daylong meeting at the Cultural Arts Center at Glen Allen, the Board of Supervisors also went over planning and expenses for waste management, public transportation, road and stormwater infrastructure, and the county’s housing efforts.
In November, the School Board approved a $863.3 million, five-year plan that included money for new elementary schools in the Fairfield District and somewhere in the county’s far western area.
“That number was so high that I actually sent [Superintendent Amy] Cashwell a letter suggesting to her that [it could work] for a 10-year horizon,” Vithoulkas said during Friday’s daylong work session.
School officials who presented the spending plan said the projects are needed to replace aging buildings and to address overcrowding in multiple schools in communities in western Henrico that are expected to grow.
The five-year spending plan also calls for expanding Hungary Creek Middle School — which is at full capacity — and the replacement of five school buildings: Jackson Davis and R.C. Longan elementary schools; Quioccasin Middle School; the Academy at Virginia Randolph; and the former Central Gardens Elementary School building where the MathScience Innovation Center is currently located.
The surprise announcement about the buildings was met with some skepticism, as the school system’s comprehensive redistricting process had just begun two months earlier.
The latest boundary adjustment options recommended by a committee of county residents working with a consultant and school officials account for the new elementary school in Fairfield and the expanded capacity at Hungary Creek Middle.
In a presentation Friday morning, Cashwell said the tentative plans to build another elementary school in western Henrico beginning in 2022-23 could be delayed several years if the Jackson Davis Elementary replacement is built with additional capacity.
Later in the afternoon, during a presentation about future capital needs, several county officials said they’re concerned about projects that might not be necessary within the next five years being included in the spending plan.
Chris Sorensen, an assistant superintendent for the school system, said the plan was put together in part to start discussions about what could be added to a potential bond referendum in the next few years.
“The issue we have with that simply is this: We don’t like [operating] with money in a gray area,” said Board of Supervisors Chairman Tommy Branin. “If it’s not a need, why is it there?”
“We’d rather see a legitimate list from the get,” he added. “If you need to come back and talk about adding anything on, that’s better than saying ‘if.’”
In addition to recommending a meeting within the coming weeks, county officials are recommending that a committee be created to improve long-term capital planning.
Cashwell will present her budget proposal for the 2020-21 fiscal year to the School Board on Thursday.
Alexander Cameron, an inmate serving life for rape and abduction, responded a year ago to a notice that officials were looking for offenders who might have been wrongly convicted by overstated expert hair testimony.
Cameron adamantly maintains he is innocent of the 1986 assault in Alexandria, and a July 31 letter from the state forensic science lab notified him that hair evidence used to help convict him “exceeded the acceptable limits of science.”
In Cameron’s case, two rounds of DNA testing — Cameron insists the tests were fabricated — in recent decades aimed at proving his innocence failed to do so and may have further implicated him in the attack.
But if detecting erroneous hair testimony has not been a ticket to freedom for Cameron, it could yet clear others wrongly convicted by overstated testimony in their cases.
In a review started four years ago, the Virginia Department of Forensic Science has been looking for any overstated testimony by hair analysts who conducted microscopic comparisons of crime scene hair with a suspect’s hair.
In 2015, the FBI found its hair microscopy experts overstated the probability of hair matches in 95% of the cases it reviewed. In some cases, the errors led to wrongful convictions.
A 2009 National Academy of Sciences report concluded that microscopic hair comparison relied heavily on subjectivity and had no scientifically accepted statistics on hair characteristics and no uniform standards for declaring a match.
The Virginia effort was initiated because some of its microscopic hair examiners, such as the one who testified against Cameron, were trained by the FBI. The state Department of Forensic Science stopped performing such hair comparisons after DNA testing became readily available in the 1990s. Today, hair can be tested for DNA as long as the root of the hair is intact.
The Virginia Board of Forensic Science created the Microscopic Hair Comparison Case Review Subcommittee in January 2016. It developed a process for the initial screening of old microscopic hair comparison cases and for the review of transcripts in cases that led to convictions.
A review team, consisting of a defense lawyer, a prosecutor and a DFS scientist with experience as a hair examiner, reviews the transcripts and recommends to the subcommittee whether the testimony warrants notifying the convicted person and other parties where the conviction took place.
Amy Curtis Jenkins, counsel for DFS, said the review is not making judgments on how questionable testimony may have affected a trial — only bringing problems to the attention of the parties involved in an effort to rectify any possible harm.
She said hair microscopy cases handled by the department since 1995 can be readily identified through the DFS laboratory information system.
Most hair comparison cases occurred earlier and are more difficult to locate amid an estimated 1 million archived paper files generated from 1973 through 1994. But progress is being made thanks to another DFS effort — digitizing the old documents. As of October, 182,000 of the old case files have been digitized.
Once a hair comparison case has been found, courts are checked to see if there was a conviction. If so, then there is a search for a trial transcript that would include testimony from the hair examiner.
“Obtaining transcripts is the biggest problem that we have,” Jenkins said. “There is no requirement that the transcripts be maintained.”
There are a number of issues that may be encountered. She said court clerks may report that a transcript is no longer available, or refer DFS to the court reporter who’s allowed to destroy them after 10 years, or there are other problems.
“It’s a slow process of sending out the letters and waiting for the responses back from the clerks. We schedule the review team meetings when we have enough transcripts together to [warrant] a meeting,” Jenkins said.
In addition to searching the old files, Jenkins contacts bar groups, law enforcement and judges to see if they recall cases where hair analysis was used.
“I’ve also sent out notice to inmates asking if their case involved microscopic hair analysis,” Jenkins said. “Those are the cases we want to prioritize — anybody who is incarcerated,” she added.
That was how Cameron learned about the DFS review. Jenkins’ letter to the Department of Corrections outlined the hair review and asked that information about it be disseminated to inmates.
So far, the DFS has notified 12 people — presumably including Cameron — that there was overstated hair testimony in their cases. Should someone request DNA testing to further buttress an innocence claim, the department is willing to do so if all parties and the court agree.
Officials will not comment on specific cases but said they were not aware of any DNA testing being requested thus far.
Cameron said DNA testing in his case was already being sought when he asked the DFS to look at the hair comparison testimony from his trial.
He was convicted of raping an Alexandria woman in her apartment. The defense position was that Cameron was in North Carolina when the attack occurred and could not have been the perpetrator.
Evidence against him included the victim’s identification, testimony from witnesses who did not see the crime but placed him in town and in the victim’s apartment building.
A forensic serologist testified that Cameron and the victim had the same blood type, which meant that while he could not be excluded as the assailant, it could have been someone else as well.
There was also testimony from hair examiner Myron Scholberg, who had retired from the FBI after 21 years and was working part time for the Virginia forensic lab.
The trial transcript shows that Scholberg testified that there was a high probability that hairs found at the crime scene came from Cameron.
“My conclusion is that they either originated from this individual [Cameron] or another person with hair characteristics the same,” Scholberg testified.
Asked by the prosecutor, “What is the likelihood that it originated from another person with hair characteristics the same?”
Scholberg responded, “It is possible that it could, but during my career, I have found that very seldom, where I work a case with hairs from two different people, that they are so nearly alike that I can’t tell the difference between them.”
Alexandria Circuit Court records show that the Innocence Project won DNA testing of evidence in his case in 1996. The 1997 DNA certificate of analysis, however, concluded that Cameron could not be excluded as the source of sperm found in the vaginal swab taken from the victim or her underpants.
Court filings show that in 2018, the Innocence Project at the University of Virginia School of Law and the Innocence Project in New York sought more DNA testing using technology far superior than what was available in 1997 and that could exclude Cameron as the perpetrator.
However, contacted last week, lawyers for both organizations said they no longer represent Cameron and could not comment further.
Reached by telephone earlier this month at the State Farm Enterprise Unit where he is being held, Cameron said the second test did not exclude him as the assailant, either. But, he alleged, “The two tests are fabrications ... that’s not my DNA profile.”
The certificate of analysis for 1997 testing showed that the state forensic laboratory did not have a DNA sample from the victim to match against a second DNA profile identified in the samples tested.
The certificate of analysis for the most recent testing was not available, but Cameron said that also did not have a DNA sample from the victim.
“Without the [DNA profile] of the alleged victim, we have no way of knowing where this evidence that got tested in my name came from,” he contends.
He said he was in North Carolina at the time of the attack and that the courtroom during his trial was itself a crime scene populated by false testimony.
The witnesses lied, he claims, “They placed me in Virginia, they placed me in the building, they placed me inside the apartment, they placed me inside the alleged victim.”
“I’m innocent. I’ve been in here 34 years for a crime I didn’t commit,” Cameron said.
He said he no longer has a lawyer.