Appeals panel rules Loudoun judge violated woman's civil liberties
Judge James Fisher has come under scrutiny for his treatment of women in the courtroom.
In September 2021, Katie Orndoff showed up to court to testify against her ex-boyfriend in a felony assault case. By the end of the day, she was in custody under orders of Loudoun County Circuit Court Judge James Fisher, who handed her a 10-day jail sentence and ordered her tested for drugs after Orndoff admitted to having smoked marijuana earlier in the day.
On Tuesday, June 6, a three-judge panel on the Virginia Court of Appeals ruled Fisher’s contempt order violated Orndoff’s key civil liberties.
“The circuit court’s impermissible exercise of the summary contempt power violated Ms. Orndoff’s due process rights to notice of the contempt charge, a fair plenary hearing, and representation by counsel,” wrote Appeals Judge Vernida Chaney.
In an interview at her home last week, Orndoff argued her case showed that Fisher should be removed from the bench.
“I just think that he needs to be held accountable for his actions, because it's not right,” she said.
Fisher has come under scrutiny and faced protests for his treatment of women in the courtroom.
In January 2020, he held attorney Rachel Virk in contempt and ordered a one-day jail sentence after a tense exchange. Two months later, Fisher said a woman violated her probation order when she had consensual sex while at a residential drug treatment program. He handed her a more than four-year jail sentence in a decision that was later upheld by the court of appeals.
This year, Fisher ordered a woman who was allegedly abducted by an Uber driver to hand over medical records, which he reportedly needed to justify delaying the trial. The woman, who prosecutors said was experiencing severe complications with an unrelated pregnancy, backed out of the case; Fisher dismissed it.
A changing story
In the Katie Orndoff case, the majority on the appeals panel noted Fisher’s rendition of what happened in the courtroom — ”the stated factual basis for the contempt finding” — changed in the initial hearing’s aftermath.
Some of the story is not in dispute. Orndoff arrived at a Sept. 7, 2021 hearing to testify against her ex-boyfriend, James Paige Phillips, who was accused of punching her while driving. Phillips faced a felony charge of domestic assault and battery of a family or household member, third or subsequent offense.
Over three hours into the hearing and after extensive testimony from Orndoff, Fisher called a recess, seemingly frustrated at Orndoff's continued offhand mentions of Phillips’ previous criminal record in her answers to questions.
“You appear to me to be under the influence of narcotics or some other type of substance,” Fisher told Orndoff, as heard in courtroom audio that emerged as part of the appeals process
Orndoff said she’d recently discontinued mood-stabilizing medication and that she was nervous about testifying. When Fisher pressed her on whether she’d taken any other substances, Orndoff admitted to having smoked marijuana earlier in the day before coming to court.
The General Assembly legalized personal possession and home use of marijuana in a law that went into effect July 1, 2021, several months before the trial.
Nonetheless, Fisher held her in contempt of court, ordered a 10-day sentence in the county jail and declared a mistrial. (Phillips later pleaded guilty to a lesser misdemeanor charge.)
“We have to assure that this process is untainted, and we cannot have a person put on trial and be testified against by an accuser who is under the influence of intoxicants,” Fisher told the jury at the Sept. 7 hearing.
In later filings, Fisher later said his contempt finding was based on her courtroom behavior — and the appearance of being intoxicated — rather than her admission to smoking marijuana: “[n]o portion of the court’s finding of contempt depended, in any way, upon knowing exactly how, when or where Ms. Orndoff became intoxicated, nor did it depend upon the substance(s) she ingested.”
Orndoff said that shifting account was especially troubling.
“It wasn't even what happened,” she said. “It was what he did after the fact to hide what he had done to cover his tracks.”
Orndoff said after Fisher held her in contempt, she was sent to a hospital, where her blood was forcibly withdrawn for a drug test Fisher had ordered. When she arrived in jail to serve out the sentence, Orndoff said she was placed on suicide watch, restrained in a straitjacket and refused other clothing before she was released two and a half days later.
A "win for women"
While the appeals panel found Fisher erred by holding Orndoff in contempt for actions that took place outside the courtroom, Judge Clifford Lynwood Athey Jr. said the majority misread relevant precedent and that “the evidence was sufficient to support the contempt conviction.”
A spokesperson for Attorney General Jason Miyares, whose office represented Fisher, declined to say if it would appeal the outcome. Fisher and Loudoun County Clerk Gary Clemens did not respond to emails sent Monday morning seeking comment.
The verdict was a “win for women,” according to Lisa Sales, president of the Virginia Chapter of the National Organization for Women.
“Fisher caused further emotional harm to a victim of violent crime, and unmeasured harm to those who may never come forward as a result of his conduct,” Sales wrote in an email. “Hopefully, the decision in this case provides some comfort to victims.”
The appeals court noted it didn’t consider several facets of the case, including whether Orndoff’s forced imprisonment, blood test and publishing of protected medical records in court documents violated the U.S. and Virginia constitutions.
Orndoff’s pro bono attorney, Thomas Plofchan, said those matters might best be taken up by Virginia’s Judicial Review and Inquiry Commission, which investigates allegations of misconduct against judges.
JIRC’s proceedings and the outcomes of its investigations are not disclosed to the public unless they refer a case to the Virginia Supreme Court — a step last taken in 2017.
VPM is investigating judicial conduct for an upcoming season of the podcast Admissible: Shreds of Evidence. If you have tips related to Judge James Fisher or other Virginia judges, email [email protected].