By T. Rees Shapiro, Mary Pat Flaherty and Justin Jouvenal October 23
CHARLOTTESVILLE — The suspect in the disappearance of University of Virginia student Hannah Graham might soon be moved to Northern Virginia to face new charges related to a vicious sexual assault in 2005 in Fairfax City.
Fairfax County Judge Dennis J. Smith issued a bench warrant Thursday for Jesse L. Matthew Jr., 32, of Charlottesville, ordering him to appear on charges of attempted capital murder, abduction with intent to defile and sexual penetration with an object. In that case, a woman walking home from a supermarket was grabbed off a residential street but was able to ward off her attacker, screaming loudly and fighting back.
The warrant to appear in Fairfax could be an indication that Matthew will face trial on the older charges before those in Graham’s case. Matthew is being held without bond at the Albemarle-Charlottesville Regional Jail on charges that he kidnapped Graham, 18, in the early-morning hours of Sept. 13 with the intention of sexually assaulting her.
Though police have said that remains believed to be Graham’s were found on an abandoned property 12 miles southwest of Charlottesville on Saturday, the body has not been identified as the missing U-Va. sophomore from Fairfax County, and no one has been charged with harming Graham. Frank Battle, an administrator at the chief medical examiner’s office, said that confirmation of the body’s identity is a “difficult” and lengthy process.
So far, police have said only that witnesses saw Graham walking with Matthew shortly after 1 a.m. on Sept. 13 and that she was never heard from again. It is unclear whether authorities know what happened to Graham after that point or what additional evidence they might have against Matthew.
But in the Fairfax case, authorities have said that the victim is able to testify and that there is DNA evidence linking Matthew to the attack — factors that lawyers said probably makes it a more solid case. Police and prosecutors in Fairfax have been seeking justice for that victim for nearly a decade.
Fairfax County Commonwealth’s Attorney Ray Morrogh, whose office will prosecute the 2005 case, said it is unclear which case will be tried first.
“There could be a lot of reasons to go either way, depending on what develops,” Morrogh said. “We’ll have to see how it shakes out.”
James L. Camblos III, Matthew’s attorney in the Graham case, said he is seeking to be appointed as counsel to defend Matthew against the Fairfax charges.
“I have sent a letter to the chief judge of the Fairfax County Circuit Court requesting to be appointed as counsel for the three charges in Fairfax,” Camblos said. He declined to comment on how the charges in Fairfax could affect Matthew’s case in Charlottesville.
Albemarle-Charlottesville jail officials said that Matthew was still in custody there as of Thursday afternoon. Morrogh said Thursday that Matthew could be moved to Fairfax within a week.
In Fairfax, prosecutors benefit from having a witness and a forensic link, and that could help drive a decision to first pursue the older case even as the same suspect faces more current accusations, according to several defense lawyers. If convicted in the Fairfax case, Matthew could face up to three life sentences, and Virginia does not have parole, meaning a life sentence is truly a life sentence.
Hannah Graham timeline
“It’s possible this could be the easier case to prove and you might even think of the decision as an insurance policy if they feel confident they have the right guy and are correct in that,” said Jonathan Biran, a former federal prosecutor who is a defense lawyer in Baltimore.
But the first case brought to court might not wind up as the first resolved, said Edward B. MacMahon Jr., a defense attorney in Middleburg, whose clients have included Zacarias Moussaoui, who pleaded guilty to charges in connection with the Sept. 11, 2001, terrorist attacks.
“There’s no rule that says the newest case goes first when you have the same suspect, and there is nothing to say the first case charged would ultimately be the first one that is tried,” MacMahon said. He said he would expect prosecutors who have charges pending in different jurisdictions to have discussed how to sequence the cases.
Biran and MacMahon both noted that each crime involved its own victim for whom a prosecutor will want to seek justice, creating another impetus to pursue a case when it appears ready to go.
Charlottesville defense lawyer Scott Goodman said that the case in Fairfax appears much stronger for prosecutors than the Graham case and pointed out that it has also been investigated across a decade.
It is “the most ready to go,” Goodman said. “There’s a witness ready to testify, and the forensics has all their ducks lined up in a row.”
Goodman said that the Graham case appears to be based mostly on circumstantial evidence so far, which would make it more challenging to prove. Goodman said that a conviction and lengthy sentence in the Fairfax case could relieve pressure on prosecutors in Charlottesville. If the evidence in the Graham case is weak, Goodman said, “it could be a factor in the question of whether it is worth the resources to do it.”
Matthew was arrested Sept. 23 in Texas, 10 days after Graham went missing.
Evidence gathered during the search for Graham set off a chain of police and prosecutor actions.
Virginia State Police said that the Graham case had provided a new “forensic link” in the abduction and slaying of Virginia Tech student Morgan Harrington, 20, who went missing in Charlottesville on Oct. 17, 2009. That link is Matthew’s DNA, according to two sources familiar with the Graham investigation. Harrington’s body was found in a field about five miles from where the remains police suspect to be Graham’s were located. No charges have been filed in connection with Harrington’s death.
The FBI had previously said that DNA evidence in the Harrington case was linked to the Fairfax assault.
A conviction in Fairfax or any evidence from the trial likely could not be used in court in the Graham case, defense lawyers said. But the case could be discussed during sentencing if Matthew were to be found guilty in Graham’s disappearance.
Flaherty and Jouvenal reported from Washington.