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Diana Wheeler, Commonwealth’s Attorney for Orange, talked with law student Bryan Rhode.
Diana Wheeler, Commonwealth’s Attorney for Orange, talks with law student Bryan Rhode.

Posted April 26, 2004
Mr. Prosecutor Rhode: In the Prosecution Clinic, Cases Aren’t from the Textbook

Things were about as real as they could possibly get for Mark Gentry, who had provided the reason for Commonwealth of Virginia v. Mark D. Gentry. He sat in a folding chair, next to his defense lawyer, John R. Maus, in the basement-style temporary quarters of the Orange County Circuit Court in Orange, vacantly casting his eyes down—at the legs of the empty folding chairs where a jury would have sat or at the industrial carpeting—anywhere that was away from the action, the judge, the prosecutor, the Commonwealth’s attorney, the clerk, the bailiffs with their thumbs tucked idly in their holster belts, from the pair of witnesses with belligerent faces. He wore a black varsity jacket with slate gray leather sleeves, a red sweatshirt and a smudged New York Yankees cap. His chin bore clumps of a beard. He’s 26. He’d stayed in school through the 11th grade. If his slump took on a few more degrees of pitch to the right he would fall from the chair. He was barely resisting gravity. Up, down, now, then, whatever; he didn’t want to think about any of it.

Fifteen feet across from him in a navy blue suit bearing faint chalk lines and wearing a red regimental tie, his hair close-cropped but hinting of red, his feet square, his shoulders square, his jaw square, like a quarterback taking a five-step drop, stood the man with momentum on his side. Bryan Rhode, U.Va. Law, ex-USMC, six months live-action, hands-on in the Prosecution Clinic, was standing up on behalf of the people. The people of Orange County had a justice issue with Mark Gentry and Rhode had the job of convincing Circuit Court Judge Daniel R. Bouton that the people were right. As in, without a doubt right. Behind him at a cramped folding table sat Diana Wheeler, Commonwealth’s Attorney for Orange, four months into the job, having beat out the incumbent in last fall’s election after years as a local defense attorney. She would backstop Rhode if he needed it. She knew he didn’t. Meanwhile, she likes a dignified court. She kept trying to keep their witnesses from running their own version of the trial from behind the rope swag that divided off the audience. Two young women there carried on in acid-hot mutterings and vehement charade-like gestures. Wheeler repeatedly tamped down their sparks before they could blaze.

Rhode, attentive and at ease, like a cat sitting with its ears trained forward, listened as the defense made an Alford plea. They knew the evidence: four previous convictions for beating the same woman. They conceded it. Yeah, OK, he hit her again. At least there wouldn’t be a jury hearing about it and deciding what punishment he deserved.

Across the street a new courthouse is going up and there all will be as dignified as it should be, but for now, from his temporary bench, where future grandeur is augured by wood-grain formica, Judge Bouton asked Gentry if he understood and accepted what was happening. The image of courtesy and sagacity, leaning out and resting weight on his forearms, the Judge ticked off the implications. No jury. No appeal. The judge sets the punishment. Yes? Yes, Gentry agreed. He “freely and voluntarily” pleaded guilty to felonious assault and battery.

Rhode smoothly read the facts of the incident. The witnesses, one of whom has a child by Gentry, went to see him about past-due child-support payments. He ran them off in a rage. He punched the back window of their van. The mother, pregnant, got out. He punched her repeatedly in the face. When she went down to the ground, he kicked her belly. Their little boy watched it all too.

The defense concurred on those facts. Judge Bouton asked Gentry if he drank alcohol the night before the trial. “Two beers,” answered Gentry to twitters in the audience. “Any drugs?” “No,” but that brought muffled hoots. The deal was that the Commonwealth wouldn’t oppose bail. Rhode, bringing the file with the four earlier convictions to the bench for admission into evidence, showed them first to Moss. Gentry still had his face cast down. Ain’t life a mess. Sentencing was set for July 9, 9 a.m. He was ordered to have no contact, direct or indirect, with the women who had been in the van and warned that his punishment could include jail.

Rhode had shown up early that morning, anxious over presenting to a jury and anxious about what the witnesses might say, even though they’d gone over it all twice. When things get to the real stage, beyond the academic precincts, out where people aren’t working on being smart all day, they get damnably unpredictable. When he got into the office he learned that Gentry had decided the night before to plea. It made things a lot simpler, but it also meant that a lot of effort and care to be ready didn’t matter. Still, he did the job and it wasn’t pretending or theorizing. It was a fact now and it did matter, even if Gentry had had trouble looking up at it as it happened. Law school had gotten him to the point where he could do what lawyers do. Rhode predicted that, in the end, Gentry would get one year in jail.

More than 100 third-year law students at Virginia enroll in one of 15 clinical programs every year that give them real-life legal tasks to perform under the supervision of practicing attorneys.Hands-on work is available in criminal defense and prosecution, housing and landlord issues, international human rights, environmental law, death penalty and First Amendment cases, and health care and refugee issues, among many others. Students perform the lawyer functions associated with their cases, including client and witness interviews, factual development, legal research, preparation of pleadings and negotiation. Students with third-year practice certification, like Rhode, may also be responsible for courtroom advocacy.

“I kinda pictured myself as a prosecutor when I worked for the Commonwealth attorney in Alexandria my first summer,” said Rhode, who grew up in Springfield and came to the law school after graduating from Penn State (an international politics major) and a tour in the Marine Corps that he left at the rank of captain. His former unit is now fighting in Fallujah, Iraq.

“It’s been absolutely amazing,” Rhode exclaimed, “but it could depend on what office you go to, too. I’ve been very fortunate that I could choose the cases I wanted.”

He handled misdemeanors in the fall, appearing in court weekly, and shifted to felonies in the spring, among them felony shoplifting, a crime taken seriously in a town of small shop owners, and possession of drugs with intent to distribute.

The clinic includes a two-and-half-hour class every other week at the Law School.

Rhode advised students to decide early if they want to do a clinic because of the prerequisite courses. The prosecution clinic’s five pre-reqs include Constitutional law, criminal procedure, evidence, professional responsibility and trial advocacy. Some clinics also require students to hold Third-Year Practice Certificates, learners permits issued by the Virginia State Bar to students who have taken certain required courses.

“This jury trial has been on my mind a lot. It’s been hard not being in Orange where you can be reached by the police or the witnesses,” he said after the trial was over. “You know the theory and concepts, but it comes down to the details and the procedures. That’s what raises the stress.

“Judge Bouton has been phenomenal. Did you see how he sort of led me along? ‘Would the prosecution have anything to say here, Mr. Rhode?’ He knows how much I know.”

But to any one sitting in the court, Rhode appeared to be a veteran, imperturbable and confident.

“I feel like I’ve been practicing law for a year,” he said. “I’ve learned more doing this than anything else I did in law school. The prosecution clinic is an amazing opportunity. It gives you the experience you need to get that first job. In trial ad you have all the facts. Here you just don’t know. I couldn’t be sure what my witnesses would really say. You can only prep them so far.

“I’ve seen the domestic violence side and how turbulent some people’s lives are,” he said. “The neatest thing is to see all these people. If I wanted to be a writer, I would sit in a courtroom. There are so many unique characters, a true diversity of people from businessmen to drunks. You see all of society.”

Rhode says he’s keeping the option of prosecution open, but meanwhile he has taken a job with the Richmond office of Hunton & Williams to work in their corporate practice. He’s postponed his start by a year to first get a master’s degree in public policy from the London School of Economics. And he’s engaged too.

“A clinic is a huge time commitment,” Rhode said as his only caveat. “It would be nice if they gave more credit for it. If I could have taken one fewer class, I could have taken on more cases. For most of us it also involves a lot of commuting.”

The prosecution clinic had 20 students enrolled this year in 16 cooperating jurisdictions surrounding Charlottesville, according to Richard E. Moore, Deputy Commonwealth Attorney for Albemarle, who serves as the clinic’s instructor. The local U.S. District Attorney’s Office accepts two interns, as do the Commonwealth attorneys in Charlottesville, Albemarle, and Augusta and Rockingham Counties. The rest take one.

“The main point is to expose students to the real-world trial experience and what a courtroom is like,” Moore said. “My personal goal is to inculcate in them the values and priorities that I think make a good prosecutor. Those include preparation, integrity, good communication skills, considering the implication of your decisions, and I also want to encourage public service. We look at the responsibilities that accompany the discretion that prosecutors have.”

“A prosecutor needs life-experience in order to have good prosecutorial discretion,” said Wheeler, Rhode’s supervising attorney. “A judge I know once said a prosecutor has to have three qualifications: they have to have had too much to drink at least once, been stopped for speeding and let go, and had somebody in their family in trouble. A prosecutor has to have credibility with a judge. A judge needs to think the prosecutor is a reasonable person and that he isn’t mean. You have to be likeable to win over a jury.

“We’re about justice, justice for the injury the community has suffered, and that doesn’t always fit into cookie-cutter formulas.”

“I think the clinic is wonderful,” said Wheeler. “I observe fabulous students in it. Bryan has required very little direction. He’ll stop me and say, ‘I’ve got a quick question.’ Finally I said to him, ‘Have you got any long questions?’ He picked out cases, worked them up, and showed me how he was preparing them. For us it has been a way to have the office fully staffed.

“I think the clinic students learn a lot,” said Wheeler. “There’s nothing better than hands-on, doing it and having the pressure to perform. You don’t really get that in the academic setting. Bryan has real presence. He could do anything he wanted to. All the victims want him to handle their case. He also wrote an appellate brief for me. I wish I could keep him.”

But the clinic has done its job, and he’s ready to go on on his own.
• Reported by M. Marshall

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