Trial begins: Police accusers find themselves accused

As the public drunkenness trials of Richard Silva and his fiancée, Blair Austin [photo left], loom large on this week's Charlottesville court docket, questions persist about what exactly happened the night of September 28 as they made their way from the Downtown Mall to the Water Street parking garage and literally crossed the path of Charlottesville police officer Mike Flaherty.

According to Police Department records from that night, a call went out from the central dispatcher's office at 12:41am regarding a possible "domestic in progress" at 322 E. Main Street, the building that houses Timberlake's Drug Store and a few apartments.

"We look at that as two people in an intimate relationship," says Charlottesville Police spokesperson Lt. David Shifflett. "The dispute could be anything."

The dispatcher's report doesn't specify whether it was a simple argument or full-blown fisticuffs (or a false alarm, as the building owner suspects), but according to police officials, Flaherty was rushing to respond to that call when his marked police SUV came down Second Street SE past the X Lounge. At the foot of the hill, he encountered Silva and Austin crossing the street as he attempted to make the turn onto Water.

"He was going so fast it didn't look like he was going to stop," says passerby Treva Smith, who saw the incident from across Second Street. "If he'd gotten there a second sooner, he would have hit them. So [Silva] was trying to cross the street and put a hand out like, 'Can you give us a chance to cross?'"

While that account matches three others quoted in the original Hook story about the incident, Edwin Banks reports a slightly different version of the events from his vantage point working in the booth at the Water Street parking lot.

"They walked into the street in front of the officer," says Banks. "They were intoxicated. I see a lot of that down here."

Smith, who says she had a drink herself two hours earlier, argues that she knows intoxicated people when she sees them, and neither Silva nor Austin fit that description.

"They weren't drunk or anything," she says. "Maybe they had some kind of alcohol with dinner, but they weren't stumbling or making noise."

As Flaherty was bearing down to make the turn onto Water, and Silva and Austin were scrambling out of the crosswalk to avoid him, Silva spoke the words he now regrets.

"He yelled, 'Slow your a**!'" says Smith. "The cop immediately stopped and got out. I guess he had the adrenaline of going to this other scene and got upset."

What happened next has become the subject of much public debate. As Flaherty got out of the car and began to handcuff Silva, Austin shouted, "Why are you arresting him?" At that point, Flaherty allegedly got physical.

"He pushed her hard," says Smith. "It's like when you're a kid, and you're mad at someone, and you push them with all your might. He didn't say, 'Stay back,' or anything like that. It was out of the blue."

According to Austin, the police plan to claim that she tripped, an allegation she vehemently denies. However she hit the Water Street asphalt, her predicament didn't stop Flaherty from arresting her in addition to Silva, both on charges of drunk in public and Austin on an additional charge: obstruction.

Besides the alleged use of force on a woman, something else doesn't sit right with Smith about Officer Flaherty.

"If he had to go to an emergency," she wonders, "why did he have time to arrest two people crossing the street?"

According to police officials, Flaherty had been called off the 12:41am domestic call by the time he encountered Silva and Austin. But according to the list of police dispatches from that night, Flaherty called in his suspicion of Silva at 12:42am. How could he be speeding to the scene of a potentially serious domestic dispute one minute and stopping to arrest a couple on a misdemeanor drunk in public charge the next?

"That whole incident is currently under investigation," says Shifflett, "and I'm not at liberty to discuss it, as is normal when something is being investigated by the department internally."

One man who may be able to clarify the night's events is Gordon Butler, a cab driver who saw the incident and has been issued a subpoena by the prosecution. So key is Butler to the prosecution's case that even after lawyers and five witnesses assembled in Charlottesville General District Court for the trial on November 13, prosecutors were successful in getting the trial delayed because Butler was busy with a scheduled medical consultation.

"I got a call the day before the trial, and I said I couldn't come because I'm trying to get this kidney transplant," Butler explains.

Butler refuses to divulge his account of the incident with the Hook before he testifies; however, with only days remaining until the new trial, Butler says he still doesn't have his marching orders.

"They haven't called me, and I haven't gotten a subpoena," he said November 21, eight days after the trial date. "I went down to the police station," he explains. "I told them what I'd seen, and they said they would get back with me."

The prosecutor in the case, Charlottesville Assistant Commonwealth's Attorney Katherine Peters, has not returned the Hook's repeated calls for comment about whether Butler has since been served with his subpoena and why it's taken this long to serve him. To veteran defense attorney Debbie Wyatt, this kind of lag seems unusual.

"It certainly raises an eyebrow," says Wyatt, who has no stake in the case. "It's not common that you can't run down a witness. In this day and age, I can find anybody, and I think the police have more resources than I do."

The trial comes at a particularly momentous time for both Silva and Austin. Silva is a veteran of the wars in both Iraq and Afghanistan and is slated to return to Afghanistan in January December as a private contractor. And the couple discovered recently that Austin isn't the only loved one he'll be leaving behind.

"I have just found out I was pregnant at the time of the incident," says Austin.

Despite injuries which Austin says resembled the stiffness resulting from a car accident, she says her unborn baby is fine, but she adds, "It's scary to think it could have been worse."

Silva and Austin stand trial Thursday, November 29 at 9am in Charlottesville General District Court.

#

16 comments

Sally said > "...Drug dealers and murderers seem to be dealt with less harshly in this country than someone who talks back to a cop!..."

Sally, it's an unwritten law called "contempt of cop." You shall not commit contempt of cop. No exceptions.

The entire system is melting down because of these God-complex uniformed loose cannons that seem to be everywhere nowadays.

I saw a joke the other day.... 95% of cops make the other 5% look bad. But is it a joke or is it the truth?

"The real problem here is that the chief did not step up to the plate the very next day and get involved to settle this in a day." If the police chief did as you say every time some college-looking people yelled at police officers, he would be working every night, all night. The proper thing to do is what he has done, let the story be told under the full weight and influence of our local judiciary with witnesses sworn to tell the truth under penalty of perjury. Then, if the officer is lying, he's convicted of perjury. If the couple is lying, then they are convicted of the charges. This is the American way. Not telling a police officer he's so supposed to recognize his "betters" and ignore their behavior in public that he has witnessed. The era of UVA student privilege ended by in the '80's when a graduate student was convicted of attacking a bar owner. Let's not go back to those days. Let's wait and hear with the parking lot attendant has to say or should he shut up when testifying against his "betters?"
Women who are sexually active should realize that they could become pregnant at any time and not abuse drugs or alcohol. That's the responsible thing to do. Oh, I forgot smoking. Maybe, if the court determines the police is in error, the couple will file a civil suit.

C-ville Eye...You. Are. Awful.

Silvia/Austin are NOT UVA students.

The police in this town are a joke...just like you.

now that's funny!

I heard a very similar story in Charlottesville a couple of years ago. The kids in question were walking BECAUSE they'd been drinking and weren't doing anything "wrong" at all, but a Charlotteville cop stops and starts yelling at them to get off the street. These young people were being VERY responsible NOT to get in their cars, but this cop was just ticked off that they were ON the street at all. One of the young girls "sassed" him, telling him that they were not doing anything wrong and that he should be grateful none of them wanted to drive, etc., and he got so ticked he arrested her for public drunkeness. She went to night court and proved she was NOT drunk, probably the only one in the crowd not drunk, but because she DARED speak back to him when he was barking orders, he tried to give this young college student a public drunkeness record.

She went to court and won the argument, and the judge dismissed the charge, but this fool could have hurt this girl quite a bit, and for what? His thin skin, his God-complex attitude that you can't be "sassy" (she used no bad language, just ARGUED with him vehemently) to a cop even when they are being jerks and have no real justification for what they are doing?

If Charlottesville is so crime-free that the cops have nothing to do but ride around and see who they can fight with that will end in an arrest, perhaps they should be put to charity work. And if they're so thin-skinned that they think being "sassed" or, in this case someone who got shaken saying "slow your **** down" to a car, even though there's a cop driving it, my opinion is they need some personal training on what is "arrestable" behavior and what is not. He should have blown off the guy's mouthy behavior due to shaking them up, and gone and arrested some dope dealer, who deal freely on the streets unfethered by the police. I hope the judge dismisses the case as the one before and that these two folks can get on with their lives. Drug dealers and murderers seem to be dealt with less harshly in this country than someone who talks back to a cop!

Having said that of course, we need the police, we have to have the police. They are, in most areas and in MOST cases, heroes who put their lives on the line for us every day and I support them as much as possible. We just need to train them better in community relations, it seems, or at least in Charlottesville's case, to know who the bad guys really are.

911 time cards show the hour, minute and seconds. So 12:41:00 to 12:42:59 could easily be 1 minute and 59 seconds; while the human mind would think only 1 minute when dispatch says "12:41" and "12:42". With me so far?

So how could Flaherty be speeding to the scene of a potentially serious domestic dispute one minute and stopping to arrest a couple on a misdemeanor drunk in public charge the next? It's very easy to explain. 60+ seconds is quite longer than you might think it is. (Just like it seems a rescue squad took 25 minutes to get to you, even though it was only 4 minutes) Follow along below and count the seconds off as you go.......

At 12:41:30 a.m. it sounds like Flaherty was perhaps advised to cancel his response to the domestic. This happens very often. But perhaps he continued just to see the action. This also happens very often, especially if the officer who was just cancelled is near the event already anyway.

At 12:41:50 a.m., 20 seconds later, Flaherty has come upon this intersection, still running wide open even though his response had been cancelled. Silva and Austin are in the crosswalk.

At 12:41:53 a.m., 3 seconds later, Flaherty has to come to a complete stop in this intersection, or chooses to come to a complete stop.

At 12:41:55, 2 seconds later, Flaherty advises dispatch he is going to be out of the car with 2 disorderly subjects on Water Street. Dispatch will ask Flaherty if he needs another officer to assist. Let's assume Flaherty says "yes base, send one this way!"

At 12:42:05, 10 seconds later, Flaherty has hung up the two way radio microphone and jumps out of the police Jeep and confronts Silva and Austin, because his response to the other event had been cancelled anyway.

At 12:42:15, 10 seconds later, a disagreement has seriously erupted between Flaherty and Silva/Austin. Pushing, shoving, yelling, screaming, etc... Flaherty does his thing to Silva, and the backup officer does his thing to Austin when he/she arrives a minute later.

I wasn't there, but I can assure you it could easily have taken place in 1 to 2 minutes as I described above. The fact only a minute or more passed means very little.

Several nights after the Silva/Austin event, several police units were talking back and forth to each other during their response to a call. You could hear their sirens going in the background as they keyed their micrphones up to speak to each other. Sgt. Higgins advised several of them to slow down and stop running code (sirens and lights) because their needed response had already been cancelled. One of two things, 1) Perhaps the Silva/Austin thing was still fresh in Sgt. Higgins mind?, or 2) Higgins was doing his job well and supervising the troop's movements as he is suppose to be doing?

Denver, you must not realize how large local governement is? Downing Smith was an excellent assistant commonwealth attorney. And when Downing retired the city had to hire 2 or 3 assistants to take his place. As commonwealth attorney, Dave Chapman will work on the McGowan and serial rapist cases. His assistants, on your dime, will handle these other silly matters. As to your other point, there's no foul in Flaherty continuing to the call even if he had been called off. It's simply his duty to continue his response in a safe manner. Doesn't sound like entering a crosswalk with pedestrians in it was a safe manner though.

I am looking forward to this. I hope the Police department gets SPANKED. If I were a cop I would demand that my superiors move this kind of crap to the front window and get it settled ASAP. We know the police are not perfect and we accept that, but we cannot have faith in a police department that is not transparent.

No subpoena for witness?

I think the city may drop the charges and try to make nice to avoid a civil claim. City council has already received taxpayer notification of this matter during a public comment.

I'm speculating this officer has had other beefs with management, maybe he will not be with the department much longer and would not be available to testify. Not to mention a jury trial of the criminal case in the unlikely event there is a conviction. We have a much bigger case now on the dockets with the Jayne McGowan issue. Out of repect to McGowan maybe the commonwealth's attorney may have to limit prosecutions of frivolous matters to make sure adequate rescources are available at this important time. And don't forget the serial rapist, that's not a done deal, he still needs to go to trial.

I he was called off the emergency call BEFORE encountering Silva and Austin, why was he still driving like he needed to be first at the scene of the accident?

I can't figure out why a well educated, service minded young man or woman would not want to work for the Charlottesville Police Department.

The problem isn't with the Attorney's office or the police department. It's guys and gals behaving badly because they think they're privileged college graduates that own the downtown. Imagine sloshing your baby around in alcohol. You'd expect that out of high school dropouts. The original story had a gaggle of "eyewitnesses" siding with the "victims." Where are they now? Maybe, now that everyone is sober, many of them have decided they don't want to be associated with this public display. Or maybe they have migrated over to Outback. It's just this kind of incidents that causes Voice of Reason to boycott the downtown. Isn't that right, Voice?

C-ville eye, She found out she was pregnant AFTER the incident. If I were in a crosswalk and a cop came roaring down on me with no siren I would holler also. Stone cold sober. The only difference between me and this guy is if he shoved my girlfriend to the ground I would have already filed a civil suit and done everything in my power to legally destroy him and his career. Hell I would have tee shirts made with his picture that say "don't freak out on me bro". I would have called the FBI and tried to have the force investigated for civil rights violations.

The real problem here is that the chief did not step up to the plate the very next day and get involved to settle this in a day. This would all be over now if he had only gotten all parties together and tried to get to the bottom of things. If he had, we would have had three possible outcomes...1) The cop would have been charged with abuse. 2) The couple would have been charged (as they have been) buit he would have had a press conference saying why he feels the police force is in the right. or 3) He could have gotten the parties together, had everybody apologise to everybody, have everybody agree to walk out and let everybody save face and move on.

When will the police force learn that circling the wagons is ALWAYS THE WRONG THING TO DO?

Jeff, you need to understand why a police chief or sheriff will circle the wagon. Let's say a police chief steps up to the plate and admits one of his officers was way over the line. He goes on to say that he has even terminated this officer's employment. Now what's wrong with this picture? Well, the police chief has just set himself up to be sued: FAILURE TO PROPERLY TRAIN HIS OFFICERS. It's that simple. So unless there's absolutely no way for chiefs and sheriffs to lie and deny their way out of a police brutality accusation or whatever, they're going to circle the wagons. Just like the Rodney King beating, there was no way to lie and deny because a video existed. If you recall, quite a different tale was being told by the LAPD before the Rodney King video surfaced. They changed their tune real quick after the media started playing the video nationwide every 5th second of the day.

Cville Eye, are you some kind of whacked-out woman hater? How on earth do you equate Blair Austin finding out she's newly pregnant to someone who smokes and drinks throughout their pregnancy? What bizarre standards you have for the "wimmin-folk." Perhaps they're supposed to take a pregnancy test in the evening before having a glass of wine with their dinner? Ya know, just in case.

Yeah, UVA students often act like overly entitled ass****s. But you've somehow managed to trump them with your huffy self-entitled diatribe. Oh, and Silva and Austin aren't students!

Perhaps you need to adjust your meds. I think you've now blown any shred of credibility you had on this site, or any other.

I wonder why Sally's friend and these two, who are college graduates, behaving like common street trash?