RVA Trial Lawyers: Richmond's Trial Lawyer Podcast
RVA Trial Lawyers exists for Richmond’s trial lawyers. Through this podcast, we hope to learn from them, support them, connect them, inspire them, and preserve their work for future trial lawyers.
RVA Trial Lawyers: Richmond's Trial Lawyer Podcast
Jeff Everhart - Criminal Defense Trial Lawyer
"The fun thing about our business is, we get to try cases with good lawyers. Trying cases is fun. Trying juries is fun. Losing juries ain't fun, but trying them is fun."
Jeff Everhart joined us on RVA Trial Lawyers. We discuss his 42 years as a criminal defense lawyer, some of his more significant cases (e.g., The Southside Strangler and Ricky Gray), and his love for trial work and helping people.
It was a privilege having Jeff Everhart join us.
We are back Today. Special guest Jeff Everhart. When I think of Jeff Everhart, I think of the phrase sort of the earth. And why do I say that? Matthew 5.13 talks about what it means to be sort of the earth a very good human being, reasonable and an honest man. And, jeff, I'm not saying that because that's what Nahal Abazaki thinks of Jeff Everhart, but that's the reputation you've built over the years. Please introduce yourself.
Speaker 2:Well, I'm Jeff Everhart and I practice in Henrico County, Virginia. My office is right up the street from the Henrico County Courthouse. I started practicing in 1982. I've done criminal defense and traffic work for the vast majority of that term, probably the 40 years of it.
Speaker 1:Before you were an attorney. Take us back to Fort Bragg, north Carolina. You were born in Fort Bragg, north Carolina.
Speaker 2:Don't remember it.
Speaker 1:Don't remember that. Too far back, too far back, too far.
Speaker 3:Well, you're just trying to block it out. I also block out my time at Fort Bragg too. Well, the three years, I don't remember any, and not one day.
Speaker 2:Well, that's where I was born. And then my dad was in the Army Corps engineers, and let's see, we moved from Fort Bragg. We lived up at Fort Belvoir, virginia. My dad was stationed at well. He got his second degree at College Station, texas, a&m, and we went to Germany for four years, from 60 to 64, came back and spent two years at the University of Florida. My dad was an ROTC instructor there. In the fifth grade we lived in Charlotte when my father did his first tour in Vietnam. In sixth grade we lived in Fort Leavenworth, kansas. Seventh to eighth and ninth grade we were in Okinawa. Tenth grade we lived in Covington, georgia, because my dad did his second tour in Vietnam and my mom's parents lived in Covington. And then my junior year, terry Parker High School in Jacksonville, florida, my dad was transferred to Fort Lee, virginia, right before my senior year of high school.
Speaker 2:I graduated from Petersburg High School in 1974, and I did four years at the University of Virginia. So when I graduated from high school I think I'd lived in like 11 places and the longest was four years. And then, well, the longest was four years until Peersburg, where we were actually there five. Then my dad retired right after I graduated and took a year off. Well, I took a year off, I worked, came back here to the University of Richmond, tc Williams School of Law, graduated in 1982 and started practicing with Tom Mustion, byron Parker, pat Buford, the Gaines-Tabner it was Mustion, parker, tabner and Buford and then Ray Carpenter left the US Attorney's Office and he came in there.
Speaker 2:He and Tom and Byron were all VMI classmates and Ray is the one that helped me get started doing criminal work. He took me and introduced me to the judges in the city and started doing work in the city A lot of court-appointed work and then built from there and I moved to Enrico County where I am right now in 1994. And I've been in the office that we're sitting in right now ever since.
Speaker 1:What was the impetus that led you to law school?
Speaker 2:Part of it was I was an English major and I wanted to go to law school. I can't say I went wanting to be a criminal defense attorney, but I liked trial tactics. I took a trial tactics class with Judge Marriage, who was a United States District Court judge. I'd say he was kind of an icon and Robert Marriage, and he was a great teacher from my perspective. I really liked his class and that helped me, I guess. I liked being on my feet.
Speaker 2:I like arguing cases and analyzing evidence and trying to dissect the case that the Commonwealth of the United States puts together, and I enjoy it. I enjoy what I do. I'm fortunate that I've been able to do it for a long time and I like to think I'm reasonably good at it. But you learn something every day in this world and you all know you all are both Praxon attorneys Every day there's a little bit different. I mean, there's a lot of redundancy and we've heard the same stories time after time after time. But we also you learn something about every day and I really like what I do. I enjoy it. I'm blessed to have a profession that allows me to earn a good living, that allows me to serve the public and that does mean something.
Speaker 2:People. As you know, niall, you do criminal work, you're a prosecutor, and I suspect that people ask you sometimes how do these defense lawyers represent people that do such bad things? And it's not easy, but that is part of the process. We are we as a nation, I think are blessed to have the criminal justice system we have. I'm not saying it's perfect, but I think it's a great system. I love the jury system. You have 12 people that come and sit in judgment and they either determine that you're guilty or you're not guilty, or they hang sometimes. But I think it's a great system. It's an adversarial system, but I think if you do things the right way, always be good to people. If you do people the way you want to be treated, I think it pays off.
Speaker 2:I know when I started practicing law, tom Mustion told me Jeff, when you go to court, be nice to the clerks. The clerks can make you or they can break you. If you're nice to the clerks, something doesn't get done quite right. They're going to pick up the phone and call you. Hey, jeff, you made a mistake. You need to cover this If you're the guy that comes in there showing your backside, so to speak, acting like you're better than everybody. The time comes that you stumble, the clerk's going to let you fall.
Speaker 2:I think it's easier to be nice to people than not and I'd like to think that's that I'm that way as a matter of course. But that's a good thing to think about. You kind of reap what you sow, and in our world we interact with people all the time and I think lawyering at least from what we do is a people business and sometimes you know we're human, sometimes we get curt with people or we say something that we perhaps regret. But I think if overall you're nice to people, people will be nice to you and people will remember you.
Speaker 2:And I like to talk. I like talking to an audience and a jury's an audience or a judge's an audience, and I watched a lot of lawyers that were practicing when I started practicing, guys that were really good at it and I'd like to think I learned from them and now suddenly I'm an older lawyer. It's kind of hard to believe that I've been doing this 42 years. I'm 67 years old. I don't feel that old, but the driver's license doesn't lie and I'm one of the oldest guys doing what we do now what's kept you?
Speaker 3:going. This is not an easy job. Being a criminal defense lawyer is probably one of the harder jobs there is. When it comes to being a lawyer, it can be a grind. You deal with pretty horrific things and it's stressful, right, getting in front of a jury is not something for the fan of heart. What's kept you going?
Speaker 2:I enjoy what I do. You're right, it is a grind. I think that probably I am perhaps less patient now than I used to be. Some of that I attribute to the fact that over the course of time, you see, from our side we are generally fighting an uphill battle. I tell clients all the time the police just don't sit in the police station throwing darts at a phone book and they pick Jeff Everhart's name off and we go charge Jeff with something. There's generally a pretty good reason if you're charged. I'm not saying that people are not falsely charged or falsely accused. Probably more accurately, someone says I did something and I didn't. But most the time when somebody's charged, whether it's smoke, there's fire and you got to deal with it and oftentimes our job is to mitigate, to minimize the damage. You argue for not guilty. Lots of times your clients are not guilty. But I think, to answer the question most directly, I just like what I do. I enjoy the trial work. I do enjoy dealing with the people. I respect the prosecutors that I deal with on a regular basis and I just try my best to do things. What I would say is the right way.
Speaker 2:I was fortunate to have parents who, I think, instilled a good work ethic in me and the difference between right and wrong, doing things the right way Some might say the gentlemanly way, and I strive to do that. I know that sometimes I can get curt or short or impatient. I'm hard on myself. I'm probably harder myself than not on anybody else, but I know that sometimes I can get a little impatient, that's the best way to put it. But I try hard not to let that be a all the time thing or even a much of the time thing.
Speaker 2:But yes, it's a grind. You look back on the things you've done and the cases you've tried and you think, man, and sometimes it's very, very stressful. You can feel your blood pressure go up and there is a stress of you want to do your best for your client because your client obviously faces ramifications. Your client has a family. You also have to be cognizant of the fact that in crimes that involve violence, rapes, murders, robberies, malicious woundings there's a victim that has a family, and I think that it's always a good idea for a defense attorney to keep that in mind. It's not just simply the prosecutor wants to hurt my client. The prosecutor has a victim and a family of a victim that has been injured, or victimized if you want to. You know it's redundant, but there's two sides and you have to be respectful of that. I have done a lot of murder cases and murder cases are difficult because there's misery on both sides. Let's put it that way.
Speaker 1:Jeff, that's the reasonableness that I started with when I introduced you. You don't lose sight of the fact that there are victims on both sides. Some get caught up in their client's case, that they lose sight of the fact that there is a victim that led to someone else being victimized. Talking about that and you brought up the fact that you started in 1982 and the number of murder cases and looking back, how has the practice of law changed for the better or worse today?
Speaker 2:One of the things that really affected us as criminal defense lawyers. When I started practicing, virginia had a parole system and as a general rule you could anticipate that if you got time you were going to do about 15% of that time there were exceptions and if you messed up in the system you didn't get that. But as a practical matter at that time, if I tried a case, virginia had jury sentencing. Now it was not a bifurcated or two-part trial, it wasn't guilt or innocence, and then the jury hears more evidence and they retire and come back with sentencing. Back then you argued to the jury, the jury went in the back, they returned a verdict and if that verdict was guilty, they imposed sentence right then. When I started practicing, second-degree murder carried a maximum of 20 years so you could go to trial and if your client was convicted of second-degree murder and the jury gave you the max, you could expect that person was to be out probably in less than seven years. So there was an incentive, if you will, to try a case with a jury. We did not have sentencing guidelines back then as we do now, but jury sentencing was not a negative because you couldn't talk about parole with the jury, nor could the commonwealth. So you could try cases.
Speaker 2:In 1995, parole was abolished and we went to having guidelines. And when parole abolished, now all of a sudden you're doing 85% of your sentence. And so if you get a murder case and you get 20 years, that's 17 years. That's a big difference. A possession with intent to distribute drugs schedule one or two, five to 40 years. You guidelines, if you don't have a record, are generally seven months to a year, four months I think, or year one, with a midpoint of a year. Those general numbers.
Speaker 2:That's a big difference between if you try the case with a jury Jury sentencing. They can't suspend time, never could. At least you can get as five years. 85% of five is a lot more than one year. So that was a huge change and, as y'all know, just a couple years ago the General Assembly changed the law.
Speaker 2:You can try your case with a jury but you can have the judge sentence. As a result of that, I would hazard a guess that the number of juries we're trying is significantly greater and that's the reason. So that's a huge change. That is like the federal system. The federal system, you try the jury and then the judge sentences. In Virginia now you have that option or you can choose to have a jury sentence. The difference is, if you say I'm gonna have jury sentencing, you can talk about what the sentencing range is, what the charge carries. You can say the Commonwealth is alleging that this man committed first-degree murder, they're asking you to convict him and that the penalty range, folks, is 20 years to life. So if you convict him, you're starting at 20 years. You can talk about that if you're getting jury sentencing.
Speaker 3:In a sense, you've got some potential nullification built in.
Speaker 2:Big risk to take, though, on a case like murder, because if you fail, the numbers are so high. Now let's be clear Sentencing guidelines if I'm convicted of first-degree murder are pretty high too, even with no record, so you gotta balance that.
Speaker 3:Ironically, when I was at Fort Bragg doing criminal defense, oftentimes we would opt for judge-alone trials. Because when you tell the jury, yeah, you're going 0 to 40 and they give the guy 20 and they think they're giving him a break and the reality is the judge would have given him three, the jury doesn't necessarily have that insight. It's a scary proposition, I think. Asking the jury to sentence right Jury sentence yes, I think.
Speaker 2:So Now understand, as I said, pre-95, we tried a lot of juries but the safety net, so to speak, was parole. Clients say how much time am I gonna do In Virginia? If you get 10 years now and if it's an offense that where they're gonna say you gotta do 85%, that's eight and a half years. If it's an offense that you can do 65%, and some are, that's six and a half. That's simple math. Obviously Other numbers you gotta calculate, but everybody cares about. How much time am I going to serve?
Speaker 3:And on the whole it sounds like that the time is going up. People are spending more time in jail.
Speaker 2:Well, I mean certainly since 1995,. Yeah, because they abolished what was really favorable parole and, as you know, judges have sentencing guidelines. My experience is most times judges stay within the guidelines. So you can set some reasonable parameters. You can give people good advice. Sometimes judges go above in aggravating cases, sometimes they go below, but somebody told me recently that in about 80% of cases judges stay within the guidelines. I think Russ Stone mentioned that the other day in court.
Speaker 3:And more so on the federal side. Right the guidelines almost have protections. Like if you're gonna get outside of the guidelines, you've got to really justify it right.
Speaker 2:Yes, in the federal court they have the 18 US Code 3553 sentencing factors that the judge has to consider, and when a judge sentences a person, they go through those one by one. What they say is I'm imposing this sentence and this is why they lay out their reasons. But, yes, I would say that in the federal system there are fewer cases where the judge deviates. I think they tend to more closely adhere to the guidelines. In 1987, when the federal sentencing guidelines came into effect, they were mandatory, right, and so, booker, right, yes, and I'm gonna tell you, it was awful. At that time there weren't a lot of lawyers in Richmond that did federal work and most of us were of the opinion that with these harsh sentences back then, it wasn't gonna be long for the federal penance entries filled up. It was gonna have to change. Well, you said, booker, that was a Supreme Court case that said the courts do have discretion and gave the reasons they can vary if you will. You can have a variance sentence or a departure sentence.
Speaker 3:Yeah, my understanding is most judges if they're gonna get out of the guidelines, they're gonna vary, because I believe the guidelines required actually write something if you're gonna actually depart and there's a more of a formulaic approach to departing, versus if you vary. It's more open, it's more discretion to the judge.
Speaker 2:Yes, and that changed things in federal court for the better, in my opinion, from a defense perspective, for the better. But yes, I'd be willing to bet that the numbers where judges go above or below the guidelines is greater in the state court than in the federal court. Now, obviously, I think the volume in state court is significantly higher because you have jurisdictions throughout the Commonwealth. We have US district courts in the Commonwealth, but you got Alexandria, you have Norfolk, you have Newport News, you have Richmond, you have Charlottesville. I don't know if there's still a district court in Harrisburg. There was and then out in Roanoke and I think there's one out in Abington or out that way. I've never been that far west. The sheer volume of cases we have in Virginia vastly outstrips what's in federal court.
Speaker 3:How do you feel about sentencing? I guess I'll be a little bit more pointed than that. I've heard from some that you learn your lesson three weeks into the jail sentence, and then I was heard from others no, you need more time. What I've always wrestled with when I deal with criminal law and I really wrestled with it when I was working with now at the Henryco Commonwealth Attorney's Office is what's the difference between five years and seven years? When you get to those numbers, how do you decide what is appropriate, or is it all arbitrary? What is the goal that we actually have? What are your thoughts when you're approaching the sentencing?
Speaker 2:That's a good question. I think that's the tough thing about being a judge. I think in a perfect world, if you're a judge, you try to avoid the broad thinking of If this is this type of case, here's what I'm going to do. You would tailor your sentence, shall we say, to that defendant and to those circumstances. So that's two things. I would think that it would not be easy to be a judge to sentence a person to a long term of incarceration, maybe even a short term of incarceration, because incarceration has consequences, and the response to that from a prosecutor would be yes, acts have consequences. If I rob somebody, then that's going to have a consequence. I have a lot of clients that are repeat offenders and if I'm a judge, I'm going to treat somebody who's been back two or three, four times differently than the person who gets in trouble the first time.
Speaker 3:Maybe the amount of time isn't necessarily the issue there. The criminal justice system really is just dealing with symptoms of deeper problems, of not having good employment, of not having a good upbringing, of not being given the education that one necessarily needs in order to escape whatever cycle that person's in the criminal justice system. We often rely on it to fix a lot of problems, or at least we believe it's attempting to fix a lot of problems that oftentimes it's not capable of really fixing.
Speaker 2:Well, I think that's your answer right there. The criminal justice system is not designed to address problems of economic advantage or disadvantage, equity or inequities. Now, a lot of people would disagree with that. Last, a lot of people think that we should address inequity through the criminal justice system. I think in the abstract that sounds great. I think in the reality, the criminal justice system deals with people who commit crimes. Obviously, if I'm committing a crime, someone is suffering something for that. If I break in your house and steal stuff from you, you suffer a loss. If I shoot you, you suffer a loss. If I abduct your wife and rape her, you suffer a loss.
Speaker 2:I am of the opinion it's hard to convince a judge or a jury that because my father wasn't in my life, or because I didn't do well in school, because I went to a cruddy high school or junior high and therefore I don't have a good job, I think it's a hard sell to beg for leniency because of that. Now, in capital murder trials, where you're asking a jury to impose the death penalty, I think that's a little bit different argument, because what you're doing there is you're arguing mitigation evidence and really what you're asking is don't sentence this person to death back when we had capital punishment in Virginia. Give this person life without the possibility parole. I think that argument probably has more merit in that context because then a jury is trying to weigh does this merit the death penalty or not? In day-to-day crimes, if you're convicted of a felony, you have the right to a pre-sentence report. A pre-sentence report goes into an individual's background family work history, educational background, mental health health narrative whether they have a history of substance abuse, psychological problems and, of course, criminal record. On a daily basis a judge is hearing from Jeff Everhart or Nile Abazaki if Nile's a defense lawyer, you, if you're a defense lawyer folks in your office.
Speaker 2:Judge, this person comes from a disadvantaged background. He's never been in trouble before. He doesn't suffer from substance abuse. He's had problems finding the job. He stole because he thought he needed this. He stole because he thought his family needed it. He stole to support a drug habit, if we've got that.
Speaker 2:So we would ask the court to be lenient. So in that context I would think that a judge would tend to be more lenient, assuming it's a first time. Now you know, and I know in court some of our judges can be very lenient, even on people who used to be called recidivists that keep coming back. And part of the criminal justice system is I get a sentence today and the judge says stay out of trouble and if you don't, you stand this possibility getting suspended time and I come back on a show cause after a show cause after a show cause. I think a lot of prosecutors would probably argue that some of the judges are too lenient on that, that there comes a time. Enough is enough.
Speaker 2:Now, as a defense attorney, I'm arguing just what you said a few minutes ago, judge we're all human. We all have our failures, so to speak. We all stumble. But please give this person another chance. Let this person show that he or she can live by the rules and the convul t t t, t, t t t t t t t, t, t, t, t, t, t, t t t.
Speaker 2:We really are. We deal with the bad that goes on and we deal with the ramifications and the repercussions of it. And if you sit back and think of it the way I just said, that we're dealing with misery, it really will bring you down. I don't think it's a coincidence that there is a and I don't know the numbers, but I hear, see, and studies and stuff that there are a lot of attorneys who have alcohol problems.
Speaker 1:And that's what I was thinking, jeff, when you said we deal with misery because it brings down a lot of attorneys.
Speaker 3:Yeah, I mean, we deal with problems all the time. It's funny. I remember at Fort Bragg I used to ask my clients when I first met them hey, how are you doing? And then I realized that's such a stupid question because nobody's come into a criminal defense attorney's office excited to see you.
Speaker 2:Nobody, we got a problem.
Speaker 3:Nobody says, hey, man, I'm having a great day. Let me call the lawyer.
Speaker 1:Best day of my life, I'm gonna see you, mr Gray.
Speaker 3:And that transcends the most practice areas, not just criminal work, right?
Speaker 2:Well, that's a good point. Sometimes I say, other than having to be here, how are you? Yeah, I mean it's. And at the end, when you represent people, you have a tendency to say you know, if you ever need anything, call me. I hope you don't have to need me in this context again and think about this, the work that we do.
Speaker 3:I do personal injury, criminal defense. My livelihood is reliant on people getting hurt at no fault of their own and people committing crimes. It's pretty incredible when you step back and sometimes it freaks me out. But then I was like well, shoot, plumbers rely on plumbing breaking and like all this stuff, and that's just the way the world works.
Speaker 1:Well, Jeff, without going into details, I got a call from Shreej today telling me that there's a breakthrough in a case that he has, and the breakthrough is that someone else suffered some kind of loss and he's like that's my breakthrough in my case.
Speaker 3:And that's pretty sick. And that is pretty, yeah, it's very sick. It increases the value and the significance of our case now.
Speaker 1:But it's something that an attorney's celebrating, right. So, Jeff, let's talk about the trial. You've done hundreds of murder trials.
Speaker 2:There was a time that there were a lot of murders. During the time that crack cocaine was big, richmond had a very high murder rate. Unfortunately it was a lot of drug dealers shooting drug dealers and the prosecutors in cities used to call it misdemeanor murder and that's a sad commentary but unfortunately it was kind of true. Nonetheless, as we touched on earlier, if somebody gets killed that's a loss of a life, a family loser. I represented some people that were really bad people, no doubt in my mind. They had committed numerous murders and yet in the way the world worked they lost family members too. And when you meet a client, you meet their mother and you meet their sisters and then the brother gets killed, it impacts you. I'll never forget.
Speaker 2:I represented some young men over in Blackwell in Southside Richmond back in the late 80s into the early 90s and they were regular clients. They were good clients and then one of them was killed. And at the time one of them was killed, the oldest brother, the leader anyway, I think, actually was the second brother, but he was locked up, pinned in trial in a murder case and I had to go see him and tell him that his brother had been. He knew, he got word quicker and I could get down there. But I got a call and I went to the funeral home for the showing the viewing of the body, shall we say and I'll never forget going back to the jail and he asked me. He said how did he look? And I don't know that I'd ever been asked that question in my life.
Speaker 2:Certainly not in that context, because the guy had been shot and killed. The guy had walked up to him while he was sitting on the curb and put a gun to the back of his head and killed him, and I remember that, being asked that question, I said you know he looked dead. That's a stupid answer, jeff, but that was the best way to describe it. I mean, he was a 21, 22 year old man laying in a casket with his family sitting around crying, and it was all over drugs. They were selling drugs and this other family on the other side was selling drugs. One of the brothers on that other side got killed in his car on a busy street over in Southside and had three kilos of drugs and a trunk and $35,000 in the back seat. None of that was taken. It was just we're going to kill you and they did, and that's a hell of a thing when you think about it.
Speaker 1:Depressing In Europe. A jury trial where do you think you make your case? What part of the trial are you making your case?
Speaker 2:Well, it's a general defense work, of course, is reactive. As you know, the Commonwealth has the burden of proving their case. Commonwealth goes first, I have the opportunity to present evidence next and the Commonwealth has the opportunity to rebuttal evidence. What I try to do is I try to look at the Commonwealth's case and figure out how am I going to attack this. I'm going to convince a judge or a jury that there are holes in this case and that those holes are big enough to create a reasonable doubt. Rarely is there a perfect case. So you have to seize on inconsistencies, perhaps in the Commonwealth's evidence or lack of evidence in the Commonwealth's evidence. You have to consider whether your clients going to testify my experience is, most of the time defendants are not terribly good witnesses. There are a lot of reasons for that. Most and foremost, they've never done it before and everything is different in a courtroom. When you're trying a case, everything is bigger. Let's say, we can sit in this room, we can talk about the facts of a case, but when you're sitting in a courtroom and either a judge or a jury is hearing that they're hearing from the victim, they're hearing from the detectives it seems heavier, it seems bigger, it has more impact, especially when you're trying a jury trial. Jurors are regular citizens, everyday folks. They don't see this everyday like we do. There's a big difference between seeing a real dead body and a photograph versus what you see on TV. When the Commonwealth introduced an autopsy report, I think that has an effect on people and, let's not kid ourselves, we see some gruesome pictures. We see cases where terrible things are visited upon, often times innocent individuals. That's what you have to caution your clients sometimes. Look, we're sitting here talking about this and you're telling me I didn't do it, I didn't do it, I didn't do it. You have to understand when you get in that courtroom it's going to sound worse than it sounds right now. I'm telling you it's not good, it's going to sound worse. So sometimes you have cases that you really don't know where you're going to go on. But you have to do your best to try to figure that out.
Speaker 2:My experience is, when you try a case, there's always going to be some surprises. A witness says something you don't expect, or a witness doesn't say something you expect. Sometimes that works to your benefit. Sometimes it's like oh my gosh, I just got blindsided by a train, and I've had both happen more than once. I generally tell juries an opening statement. You can expect something like that's going to happen. We're the lawyers, we've got a pretty good idea of what's coming. But I'm sitting here pretty dangled and comfortable. Something's going to happen. I'm not expecting Commals witnesses.
Speaker 2:I said a minute ago, defendants tend not to be good witnesses. Oftentimes the commonwealths, most of the time the commas witnesses aren't good witnesses. Now, the detectives are probably the best because they are used to doing it more often and officers are pretty good at it because they're used to doing it. But everyday folks, they tend to be nervous in court. They're always prior inconsistent statements. You have to focus on those. You have to make the most hay out of them you can. That's where we hammer, hammer, hammer.
Speaker 2:I don't ever want to say don't believe that guy, believe this guy, this guy being my guy. What I tend to argue is you've heard the arguments. This is not a question of do you believe Sharif testifying for the commonwealth or do you believe Nile testifying for the defendant. The question is, having heard them both, having considered all the evidence, so you convince me on a reasonable doubt. Here's why I say you shouldn't be Now. Obviously I'm this man's lawyer. I'm biased.
Speaker 2:I'm telling you why I think the commonwealths case fails. They're going to stand up in a mineral rebuttal and say half of what Jeff Everhart said is BS. Here's why. But please consider what I'm saying. My job is not to mislead you. If you remember something one way and I say it a different way, I'm not trying to mislead you. I'm not trying to lie to you. You rely on what you remember. But I'm going to do my best to lay out the commonwealth's case for you and our case. And here's why I think their case fails. It's not. Do you believe their side? Do you believe our side? It's not. They got 10 witnesses as we got two. You put it all in a pot and you mix it up. Where are you? And that's a little bit of an oversimplification, but in essence, that's what you're saying to a jury. Of course, the judge instructs some of that. It is considering the totality of the evidence and I know that you, as prosecutors and you've been a prosecutor, sharif you all know y'all got a tough burden.
Speaker 3:Yeah, and you don't want to subconsciously degrade that burden, because if it comes down to well, who do you believe? Then we're maybe not putting as much emphasis on the burden to proof Ultimately, it has the commonwealth proven their case. You're reasonable to that.
Speaker 2:But practically speaking, what you said is accurate. You can tell a jury all day long. It's not. Do you believe Jeff, or do you believe Nile?
Speaker 1:I think ultimately it's who they believe. I think it's who they believe.
Speaker 3:I know a handful of criminal defense attorneys who swear they'll never call a witness. I'm sure part of that is bluster, but I think there is sometimes good reason not to call a witness, not to call the client, because sometimes you are taking attention away from the burden of proof.
Speaker 1:Sometimes you do especially Jeff knows that Because you don't ever want the jury to think that the defense has a burden.
Speaker 3:Well, you don't.
Speaker 2:So let's think about it a minute. Generally speaking, I think you're right. Most of the time, more often not, let's say, it's disadvantageous to call the defendant, but if you're trying to case where your defense is self-defense, you got to call your client. I suppose you could struck the case without your client if you had enough witnesses. But as a general rule, if it's a rape case and your argument is consent, you have to call your client. I guess you could make a case if you attacked the complaining witness enough Maybe. That's a tough road to hoe, in my opinion. I think your defendant's going to have to testify. Yes, I had sex with her, but it was consensual. Here's what we did. Here's what she said. Here's what I said.
Speaker 2:In a murder case, if it's an I didn't do it, your first impulse is well, the person wants to get up on the witness stand and testify I didn't do it. Oftentimes you put your client on the stand. You're opening up the door to a lot of stuff. I mean most people in a murder case. Clearly they're saying I didn't do it. They're pleading not guilty. So that's a weighing process. I'd be hard pressed to think I'd never want to use a witness. But you have to weigh and you have to prepare. Like I said a little bit ago, something that sounds good sitting in the conference room or sitting over at the jail talking never seems to sound quite as good in the courtroom.
Speaker 2:I had a defendant I represented in a murder case a couple of years ago. That did the best job, I think, in my entire career when I was preparing me. He took it to heart and he did, I think, the best job of any criminal defendant I've ever had testifying and it made a difference. He was not acquitted but he was convicted of much less serious offense. He was convicted of manslaughter rather than murder and he was convicted of unlawful wounding rather than aggravated malicious wounding. And, as y'all know, first three murder case 20 to life, aggravated malicious case 20 to life. Maximum sentence for manslaughter is 10 years, for unlawful wounding is five. And then they were used for firearm charges, for which he was acquitted. But he did a really good job.
Speaker 1:When Jeff looks back at his legal career, what are some cases that stand out?
Speaker 2:Well, I'll give you about three examples Southside Strangler, late 80s. First, a murder case is tried in the United States using DNA evidence. Dna was brand new. There's a gentleman named Timothy Spencer who was ultimately convicted of four murders, who sentenced to death four separate times. I represented him two times in the city of Richmond, in South Richmond, and one time in Chesterfield County. Dave Johnson and I David used to be in the public defender's office and we did the two cases in South Richmond. Chris Collins, who is a lawyer a little bit older than I who did a lot of cases with really really good lawyer. He and I represented Timothy. That was the last trial and that was in Chesterfield County.
Speaker 2:It's hard to tell people now. That was a time that people were genuinely afraid. Women were genuinely afraid. You had someone that was going around killing women and particularly gruesome ligature, strangulation, raping and sodomizing women and there didn't seem to be a common thread and people were afraid. Ultimately that case was broken and it was connected to a murder that had occurred up in Northern Virginia and a lot of good police work and they arrested and ultimately convicted Timothy Spencer.
Speaker 2:That case got a lot of notoriety. It was a big case because of DNA and I was still a relatively young lawyer. Like I said, I think it started in 87 or 88. That was a big case for me because it was my first capital murder trial and tried it against some good lawyers Arbery Davis and Jack Driscoll. Arbery was the common attorney so he felt obligated to try it and Jack was the chief deputy over in South Richmond. Then Warren Von Schuch, who is a very experienced and very good capital prosecutor. He was out in Chesterfield. He had been in the city before, had helped Bob Rice prosecute the Briley brothers, but he tried the case out there with Billy Davenport out in Chesterfield and that was a big case.
Speaker 2:I represented a guy named Ricky Gray who killed the Harvey family. That was the most horrific case because there were two young girls killed the father and the mother and two young girls. That was a hard case because I have two children my own. My daughter was young at the time. That was a hard case. That was one that kept you awake at night. Ted Bruns and I represented Ricky Gray and he ultimately got the death penalty.
Speaker 1:What were the facts of?
Speaker 2:that case. The facts were that Ricky Gray and his co-defendant basically just walked in the front door of the Harvey household over in South Richmond on New Year's Day and the mother and father and one of the daughters were home and they took them into the basement and the older daughter was brought home from a sleepover and they let her in and she went down to the basement and they bound them and they killed them. They stabbed them, they cut their throats and they set the house on fire. It was horrific. It was awful that was on a Sunday. My recollection is that Friday they killed there was a woman who was with them. She was the girlfriend of the co-defendant, the other man charged. She was actually asleep in the vehicle outside when they killed the Harveys but they killed her, her mother and her stepfather. That Friday they fled and they were arrested up in Philadelphia the next day, saturday. There was a live press conference when they were arrested.
Speaker 2:Before they came down here, ricky Gray had killed his wife up in Pennsylvania and but for the grace of God they would have killed another man up in DC, just random. He was walking to his parents' house and they stabbed him I think 60 sometimes maybe. I never forget the man's father saying that his son knocked on the door and he opened the door and he was covered in blood and that young man testified aggravating evidence when the Commonwealth was seeking the death penalty. That case was big. It was New Year's Day. The husband played in a very popular band. They owned a very popular toy store. I remember he served World of Murph, I think was the name of it, down in Carrington and that generated a lot of publicity and notoriety. But the fact that those two little girls were killed was hard. I think if you ever talked to Ted Bruns he would tell you that too, that case was hard.
Speaker 1:You talked about evilness earlier and you were like there are some evil people in this world. The majority are good, but there are some that are evil.
Speaker 2:I would say Ricky Gray was bad, he was evil. You're not supposed to say that on our side of the coin criminal defense side but the things that he did, that crime was basically what they got for their efforts, if you will. They got a little like a laptop, computer or something. As I remember, and I know, they took a little tray or thing that your kids make in arts and crafts. They make it out of clay or whatever and put in the hardened. You know I'm talking about bacon, right? Yes, they stole that. I mean they probably got less value than any one of us have in our wallets right now and I don't carry a lot of cash. It was next to nothing and it was senseless because they were not from here. If they had left those people alive I don't know how they would have ever identified them. They weren't going to be looking at mugshots from Pennsylvania. There was a drug element to that and we talked earlier about mitigation evidence.
Speaker 2:Ricky Gray. I say he was evil. The reality was also he was forcibly sodomized by his brother when he was a young boy. Multiple, multiple, multiple times. That was one of our arguments in mitigation. His sister came forward, came to us late in the game, relatively speaking, and shared that with us because it was a terrible thing to have to share and Ricky Gray would never address that. I'm sure he was scarred by it. So maybe I'm being too harsh to say he was evil. I don't know, but certainly the things that he did and visited upon those different families, I think you'd make a pretty good argument. He was an evil guy.
Speaker 2:His co-defendant got life without parole. They started his trial. I think Claire Cardwell and Kerry Bowen represented him. They came after us and they ended up working out I think about the second or third day of trial. They worked out an agreement. Mike Herring was commels turning Lerner Berry and Matt Geary tried that case. I know, y'all know Lerner Berry. Lerner Berry's one of the all time good, classy lawyers, really really good in the courtroom, and Lerner did a great job in that case. I'm not saying Mike and Matt did not. They did a really good job too, but Lerner is, and it comes to trying homicide cases, lerner is really a master of it and he does things the right way. We talked earlier about being nice and doing things the right way. Lerner always was a gentleman.
Speaker 2:Lerner never fought over something that wasn't important. If you were following a motion trying to keep something out or trying to whatever a tactical motion, if he didn't think it was imperative that he have that, he would concede it just to avoid having to worry about it on appeal. He had a good knack for finding what he wanted to use and hammering on that. I said earlier, my job or what I see is my job is try to dissect the commels case and I think I'm good at it. I find something and I try to hammer at it. Lerner did it the other way. He built the case but he could separate the wheat from the chaff. He wasn't a believer in more is better. He was a believer in take what you got to have get to the point very folksy with a jury, very good with a jury, nice way of speaking, and he did a really good job in that case. I never forget him talking to the young man that got stabbed all those times up in Washington DC and that was a really painful experience. He had him take his shirt off and show the injuries he had sustained and that young man's I think his right arm, if I remember right, was basically useless now he had been stabbed so badly and just out of the blue, I mean, god was just walking down the street and these guys stopped the car. They didn't know him from Adam. So you get all that and that builds up. I think probably as far as good cases, cases from a defense perspective, you think, man, I did a good job and let's not kid ourselves, we all have egos in this world. I mean it's a competitive business.
Speaker 2:I tried a federal capital murder case years and years ago out of Waverly, virginia, and the young man that I represented, along with Chuck Gavin. We went to trial in federal court and we tried the case before Judge Payne and the young men were charged with conspiracy distribute. I can't remember honestly if it was heroin or crack cocaine, but one of the other thing was maybe heroin down in Waverly. That was how they got it into federal court and they were alleged to have killed a deputy sheriff and the government thought they had a really good case and I guess they probably did. But we were very fortunate in that case and I thought did a really good job, chuck and I, and we got our client acquitted of the murder.
Speaker 2:You talked earlier about guidelines, sharif, in the federal system. Well, when you ran the guidelines for the conspiracy. Distribute the guidelines, say, if a death occurred, use the murder guidelines. I say it was a good effort because you got the knot guilty on what everybody was focused on. But we knew, coming in, we lost. We won the battle, we lost the war. It was a horrible thing. Nobody thought we were going to win on the murder. Now remember when that jury came back on the left side of the courtroom where the United States witnesses and the victim and the families, where everybody gasped and everybody on our side cheered momentarily. Chuck Gavin and I looked at each other because we knew that the next verdict was really the key, because by cross referencing we ended up the same place we would have been if he had been convicted of murder. Now, to me that is a travesty that I can be acquitted of a crime and be punished for it.
Speaker 2:And be punished for it. And that was the argument we made to Judge Payne. And Judge Payne said the guidelines say what the guidelines say. Now, this was back before we had Booker. Yes, exactly.
Speaker 3:Yeah, so they're mandatory.
Speaker 2:And so, even on what you might think is a really good day, it's not such a good day, and that's the nature of our work, but over the years I've had a lot of cases that stick with you. I lose a lot more cases than I win, for the reasons I said earlier. The police aren't sitting around throwing darts at a phone book and picking Jeff Everhart off.
Speaker 3:That would be a real problem if defense attorneys were winning everything too.
Speaker 2:Well, you'd wonder about the system, wouldn't you Exactly right?
Speaker 3:You'd wonder about the police force, you'd wonder about the prosecutor's office.
Speaker 2:Well, you've been a prosecutor. You took your job seriously, right? I tried to. Of course you did. I'd be willing to go out on a really shaky limb and say you weren't prosecuting people that you didn't think actually did the crime.
Speaker 3:Well, and the cool thing about being a prosecutor was, if I thought they didn't, that case was gone, you could drop it With the stroke of a pen.
Speaker 2:And that's the power of being a prosecutor and that's why prosecutors have to have that mindset. Now I would suspect that there are some prosecutors that may not take that as seriously as they should. I can't think of anybody off the top of my head that I would put in that category, but I hear horror stories from other people and other jurisdictions. Whether it's accurate or not I can't say, but I remember when I first started practicing law, when they came commonwealth attorneys, they had a little thing or they gave them about. The job and I'm paraphrasing is to do justice, to represent the people of commonwealth, of Virginia, and to do justice, to do what's right and with that responsibility and that ability to, like you said, drop a case if we think we got the wrong guy. That's what I think is doing right Now. I know in the last year I've had one or two cases where I've gotten a call from a prosecutor. I got one a month ago. The deputy commons attorney of menrico called me and said look, you got this guy. We made a mistake and we got into court that day. Within an hour of that phone call, we were in court. That case was being null-prost and it was a serious charge.
Speaker 2:I am not one of the defense attorneys that sits around pissing and moaning about how mean the prosecutors are. And this guy does this and this girl does that. My perspective is you have a job to do, I have a job to do and I'm going to do my best to do mine. I expect the same from you. I just ask you, don't hide the ball from me. Uphold your obligations for discovery, be straight with me and I'm going to do the same with you. It's an adversarial process, but at the end of the day, I take a lot of pride in being able to shake your hand and say look, good job, you did a good job. You whip me, that's good. I don't take it personally, because that's what we do. It's a contest. It's like playing a ball game. Both sides want to win.
Speaker 2:I am convinced that over the course of my career, I have accomplished more by being nice than I've accomplished by being super smart or anything. I'm an intelligent guy. I don't think I'm any more intelligent than a lot of people, but I think that when you're nice to people and what I mean by that is this you can go into court and you can be a jerk to witnesses. You can make everything a battle, a contest. You can make everything a fight. I'm going to tell you my experience is if you talk to people nicely, you get a lot more out of them. My job is to get what I want, what I need, not to put on a show paid by the word.
Speaker 2:Oh, that guy. He's loud, he's boisterous, he's. Oh man, he's fighting for me. I hear that all the time from defendants not all the time, but I hear it from defendants. That guy's fighting for his client. I need you to do that for me and I'm like all that guy's doing is blowing smoke and putting on a show. Listen to the questions, listen to the answers, not get anywhere. He's got the witness pissed off and so they're butt in heads. Go with the witness a little bit different way. You can't always do it, but oftentimes you go with the witness politely, treat him respectfully. Most of the time they're going to be honest with you.
Speaker 2:Sometimes you get them to say give me that nugget and then you take that nugget and that's your hammer. Remember what this witness said. That wasn't my witness. That was a witness at the Commonwealth call. That's their witness. Now they're going to explain to you why that's not a big deal, but I'm telling you it is a big deal On cross examination. When asked, this is what that person said. And I'm not going to say that. I've never gotten at odds with a witness. But I'll tell you.
Speaker 2:I think I did one of the best cross examinations in my life in federal court a few years ago in a robbery case and the guy argued that he was lying on my client and what I was saying was that's you in these videos we see. And he was kind of bucking on me and he said I don't understand what you're saying, man, what are you saying? And I said I'm saying that's you. I said it nicely, but the jury was behind me and they laughed. And my point is I could have gone at it harder and I'm not saying that what Jeff does is great. I'm not at the point of law. In that case I kind of downplayed it. He was getting angry. I didn't respond in kind. I said I'm saying that's you.
Speaker 2:Jury acquitted on all the robberies. They convicted my guy of making a false statement. Who cares? That was time served? I don't mean who cares, we do care. We want to win everything. But the reality was he had made a false statement. He had told the police he was at work when the robberies occurred and, point of fact, he wasn't. That's what the jury convicted him of and the judge in that case gave him, I think, six months, and he'd already done six months.
Speaker 2:So I just am a big believer in easy rather than hard. Now I can be hard, I can get an edge in my voice, but as a general rule I am a firm believer in you. You get more than honey than vinegar and that's the reason those old sayings are old sayings, because they make sense. And I'm old school. You all talked to Craig Cooley. Craig Cooley's folksy as hell. I think I'm pretty folksy Not as folksy as Craig, but I'm folksy.
Speaker 2:And the fun thing about our business is we get to try cases with good lawyers. Trying cases is fun. Trying juries is fun. Losing juries ain't fun, but trying them is fun. Craig Cooley put on a presentation at a criminal defense seminar a couple weeks ago about having a theme for your defense and I have to tell you I've been going to continuing legal education seminars for 42 years. That was maybe the best presentation I've ever seen. I mean, it was phenomenal and I think the world of Craig Cooley's a great lawyer, a great person, but that was, if it wasn't the best, it was certainly one of the best, and I've seen some doggone good ones and I've been blessed during my career.
Speaker 2:I came up seeing people that are true great lawyers try cases. Judge Spencer, who's a retired federal judge. I saw him try a capital murder case involving a murder at Mecklenburg and Judge Spencer gave one of the best closing arguments I've ever seen. He is an ordained minister or was, and I never forget I sat in that courtroom and in his rebuttal I believe it was he said the hands of the victims come up from the grave and they point at you and you and you and you, and he went around the table pointing at all the defendants. And I'm going to tell you something it was the wildest dangling thing I've ever seen in a courtroom. It was like you expected lightning to strike. It was fantastic.
Speaker 2:Saad El Amin, recognized as one of the greatest cross examiners in this area. I saw Saad try cases, dick Ryder, who's famous, saw him. Bobby Cabell, murray, janis I mean I was lucky. I saw guys that were just icons and great lawyers and I think I learned a lot from watching all of them. Jim Baeber was a really good lawyer. Lots of guys I was lucky. I've been blessed in my career. I'm fortunate, like I said earlier, to do what I do and I like it.
Speaker 1:Jeff, there's a lot of law students, young attorneys, seasoned attorneys that listen to this podcast. You've been blessed seeing great attorneys put on great cases. What is something that you want to share about that to pass to younger attorneys?
Speaker 2:Take opportunities to watch other lawyers, to learn, be receptive and open to different ideas. Don't have tunnel vision One thing that I think has changed. That is not for the better. When I started practicing law, the interaction between attorneys and judges was greater than it is now. Understand, way before 9-11, courtrooms weren't, as, shall we say, sealed or secure as they are now. If I could walk down the hallway in South Richmond, walk into Judge Wright's office, speak to Judy, his secretary, and ask can I see the judge? And I'd go right in and see the judge unless the judge is busy. The judges in Richmond used to have breakfast right across the street from the courthouse, over where the general district courts were. There was a cafeteria there and we, as young lawyers, could go down and have breakfast with them and you would interact with them. And what I'm getting at is you listened and you learned, you heard things, sometimes you heard criticism, sometimes you heard praise. It was just a kind of a collegial, shall we say, atmosphere.
Speaker 2:I think that now there is minimal interaction between attorneys and judges. I think that's a shame. I think if I were a young lawyer, I would seek the counsel of older lawyers and I'd take opportunities to observe trials. In the old days you used to see young lawyers in a courtroom watching my first jury trial in the city of Richmond, the judge, judge Nance, had an older lawyer sitting at the counsel table and basically be second chair for me, and that was an attorney named Skip Francis. That was kind of a safety net for me and the judge, of course, was providing a safety net to the client. That was a court appointing case involving assault at the old Spring Street Penitentiary, which was a felony, and that was my first jury in the city of Richmond. But you know, I had the opportunity to have Skip Francis tell me things and give me some guidance, which was nice. We got a not guilty verdict, which was really nice.
Speaker 1:That's the best it's ever been.
Speaker 2:It's gone downhill since. But my advice to young attorneys is do that. Do things the right way, Treat people the way you want to be treated. I said that earlier. I'm not trying to be the dead horse, but I think sometimes we can get lost in the fight and just try to be professional. Do your job, not asking anybody to sacrifice their principles, anything else, but use your best judgment, try to learn and take you I mean I think everybody takes their job seriously but just don't take it personally, because in our world I don't think much of it is personal. I don't think that there are prosecutors out there trying to screw Jeff Everhard over. Be yourself, Be polite, Learn. If you have somebody that can mentor you, do that.
Speaker 1:Jeff, we want to thank you for taking the time to give everyone a glimpse of the amazing career and the many, many, many people you've helped along the way. We are in the business of dealing with people. If you want to see Jeff Everhard, just walk into the courthouse of Henrico County and you'll see him sitting there either reading a case before going to court or looking at the facts again before trying a case. We want to thank you for taking the time and letting the listeners get to know you a bit better.
Speaker 2:Thank you, jeff, appreciate you all having me. It's really nice that you all do this. I know you guys enjoy it. We're getting down to the bottom of the barrel now that we got to me, but it's nice of you to have me.
Speaker 1:Not true. The voices of the greats, Jeff. The voices of the greats You've been talking to Craig Cooley and those guys.
Speaker 2:Those are the true, but I appreciate the comments and the praise and I take my job seriously and it's always a pleasure to deal with you too.
