Commonwealth’s attorney, defended by VA Senate minority leader, found guilty of DUI

By Kathryn Watson | Watchdog.org, Virginia Bureau

RICHMOND, Va. — It isn’t every day a Virginia commonwealth’s attorney — a publicly elected official tasked with upholding the law — faces criminal charges.

It’s also certainly not every day an influential state senator steps up to the plate to represent him in court.

Norfolk Commonwealth’s Attorney Greg Underwood last week was found guilty of driving under the influence — he refused any kind of blood or breath tests — and improper driving. In October, a state trooper pulled over Underwood for driving into a coned-off lane in a construction zone as he was getting ready to exit Interstate 264 in Norfolk

Accomack District Court Judge Gordon Vincent, specially appointed by the Virginia Supreme Court to try the case, sentenced Underwood to three days in jail and a one-year suspension of his license. Underwood was also charged with carrying a firearm in public while intoxicated, but the judge dropped the charge because Underwood was only in public because the trooper ordered him out of his vehicle.

Underwood, a Democrat, received a salary of more than $157,000 last year.

“It’s kind of an interesting case, really,” said J. Randolph Smith Jr., assistant commonwealth’s attorney for Henry County and selected by the Virginia Supreme Court to prevent any conflicts of interest in the Norfolk trial. “Very seldom do you have a commonwealth’s attorney who is charged with any criminal charge.”

At least as interesting, however, is Underwood’s representation.

For now the commonwealth’s attorney won’t serve any of his penalties because he and his defense attorney, Senate Minority Leader and Republican Tommy Norment of James City, are appealing the case to Norfolk Circuit Court.

“As far as why I took Mr. Underwood’s case, he contacted me and asked if I would represent him on it,” Norment told Watchdog.org. “I think he’s entitled to the best representation that he could get, just as you would be if you were charged. And certainly, I think he’s getting it.”

As a defense lawyer, Norment has defended clients in hundreds of DUI and other criminal cases, even public officials and their family members.

Norment himself was charged with a DUI in 2001, and he made a well-received public apology before the General Assembly.

“It has not made me any more or any less empathetic to those who are charged with drunk driving,” Norment said. “I have tried hundreds if not thousands of those types of cases.”

But as a state lawmaker, even before his own conviction, Norment helped push stricter DUI legislation through the General Assembly. In fact, he helped write the DUI law he would later be charged with breaking.

“I’ve spent my entire career as a trial lawyer,” Norment said. “And one of the first things that I had to intellectually discipline myself with is, I cannot allow any personal thoughts or persuasions that I may have about a case to impact my professional judgment and my professional representation.

“If I ever allowed that to happen, particularly on serious cases, then my ability to impartially and to rigorously represent someone on a criminal case would be completely compromised. I not only have to, I do compartmentalize how I view something personally from how I view it professionally, and I never allow my personal feelings to impact how I approach something professionally.”

Norment is familiar with prominent cases.

“In the past, I’ve done a number of very high-profile capital murder cases in Virginia,” he said. “Those are some of the most gruesome cases that a defender can be involved in. … I have had to intellectually discipline myself. Obviously, if I can do it in a capital murder case, I can do it on a driving-under-the-influence case.”

Smith, the specially appointed prosecutor, said he doesn’t see Underwood’s conviction, if it sticks, as something that could automatically disqualify him from his public position.

“I think there are obviously things that legally would disqualify you from being a commonwealth’s attorney, but I don’t think a DUI is one of them,” Smith, said. “I think that’s up to the General Assembly.”

The public has already given Underwood a vote of confidence — literally. In November, Norfolk voters re-elected Underwood just weeks after word of the DUI charges broke.

Amanda Howie, communications director for the Norfolk Commonwealth’s Attorney Office, declined to comment on whether the case affects Underwood’s position as commonwealth’s attorney. He continues to hold the title.

“That’s not something that we’re in a position to answer as an office,” Howie said. “The work of this office continues, just as it does every day.”

Because Underwood had no prior record, Vincent reduced his sentence from 33 days to three, Smith said. That’s comparable to a sentence, the judge said, he would give someone in his county with no prior criminal record.

Smith said he didn’t think the sentence reduction was related to Underwood’s public position, adding he was somewhat surprised Underwood got any time at all.

“In fact, it’s very unusual that somebody with a first offense to get active jail time unless they were doing something just atrocious,” Smith said.

Under Virginia law, a full jury must hear Underwood’s case, unless all involved parties — the defense, prosecution and a judge — agree to have it heard only by a judge.

Underwood’s day in Norfolk Circuit Court has a tentative date of May 21. The Virginia Supreme Court will need to appoint a judge who isn’t from Norfolk.

Kathryn Watson is an investigative reporter for Watchdog.org, and can be reached at kwatson@watchdog.org.