From left: Boating accident victim Graham McCormick, defendant John Randolph “Rand” Hooper and Lancaster County Commonwealth’s Attorney Jan Smith.

KING GEORGE — A judge on Tuesday dismissed a bid by the parents of a former Richmond man who was killed in a boating accident in Lancaster County to disqualify the county’s top prosecutor from handling the case against the man charged in their son’s death.

Sallie T. Graham and J. Burke McCormick had asked a Lancaster court to remove Commonwealth’s Attorney Jan Smith from the case. The motion had cited alleged improper and unethical behavior in the handling of the case against John Randolph “Rand” Hooper, who is accused of aggravated involuntary manslaughter and failure to render aid in the death of Graham McCormick, 31.

Tuesday’s hearing was held in King George County, where Judge Herbert M. Hewitt presides. He was appointed in June after another 15th Circuit Court judge, R. Michael McKenney, recused himself from the case.

That move was prompted by an implication that Smith had consulted with McKenney about evidence, or lack thereof, in the case, and that the judge had pushed for a plea deal — an implication McKenney denied. The revelation came from a witness who had discovered Graham McCormick’s body in the water just off his property and wrote a victim-impact statement to the court ahead of what was slated to be a plea hearing last month.

Sallie Graham and Burke McCormick said they were made to believe the same thing by Smith, who they also said pressured them into the plea deal that they didn’t think was harsh enough. They cite several other issues with how Smith has handled the case in their motion filed by their attorney, Gregory D. Habeeb of the Gentry Locke law firm in Richmond.

In court Tuesday, Habeeb argued that as victims in the case, McCormick’s parents’ right to be involved in the case had been violated by Smith.

“This is not a motion I file lightly,” said Habeeb, a former elected official himself who retired from the Virginia General Assembly last year. The decision of voters to elect officials is fundamental to our system of democracy, he said, but not as fundamental as justice, which he said has been miscarried in this case.

Habeeb said he wishes he could sue the commonwealth’s attorney “for the damage he has done to this family,” but state law protects prosecutors from liabilities.

Smith argued in court Tuesday that while state law allows victims of a crime to be consulted about a plea — which he said happened in this case — it doesn’t allow victims to disqualify an elected prosecutor.

According to Smith, state law allows only two types of people to request that a commonwealth’s attorney be disqualified: the commonwealth’s attorney himself, or a person already convicted of a crime who is arguing that he or she was harmed by the prosecutor’s handling of the case.

Judge Hewitt said he was not persuaded that the parents’ rights had been or would be violated if Smith remained on the case.

McCormick said he’s not surprised by the judge’s decision, saying he was bound by the language in the state statute.

“I call on the General Assembly to fix this,” McCormick said. “This should be a rare case indeed, but it should be an option for victims.”

Smith, who was elected in 2015, declined to comment on a pending case.

After Hewitt made his ruling, Smith and the three attorneys representing Hooper asked Tuesday if he would accept the pre-arranged plea deal, in which Hooper would plead guilty to two felonies and serve one year of a 15-year sentence.

Hewitt said that matter would be addressed at the next hearing, scheduled in Lancaster for Aug. 19.

Graham McCormick, who was from Richmond but was living in Atlanta working at SunTrust Bank as a corporate finance analyst, was found dead in Carter Creek off the Rappahannock River around 11:30 a.m. on Aug. 11, 2017. The state medical examiner found that McCormick’s death was caused by drowning, but that blunt-force trauma was a contributing factor.

McCormick had been visiting Hooper and other friends staying at Hooper’s parents’ Irvington home. He had been reported missing from the home about an hour before his body was found. It was originally thought that McCormick had fallen off a dock near the property.

Three days later, authorities noticed a damaged 1999 Boston Whaler on the Hoopers’ property. The Virginia Department of Game and Inland Fisheries concluded that the vessel struck a bulkhead jutting out of the water near where McCormick’s body was found.

In November 2017, McCormick’s family filed a civil lawsuit, which was settled in April 2018 for $4 million, alleging that Hooper was intoxicated while driving the boat when it crashed.

It wasn’t until July 2018, nearly a year after McCormick’s death, that Hooper was indicted on the charges he now faces.

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