An evenly divided appeals court on Tuesday let stand a Virginia judge’s controversial jailing of a domestic violence victim who admitted during testimony against her former boyfriend at his 2021 trial that she had smoked marijuana before traveling to the courthouse that day.

The Virginia Court of Appeals split 8-8 over whether Loudoun County Circuit Court Judge James P. Fisher violated Katie Orndoff’s due process rights when he held her in summary contempt of court for testifying while allegedly intoxicated in September 2021. Such a tie affirms the lower court’s ruling.

Fisher halted Orndoff’s testimony during her ex-boyfriend’s trial and told her she appeared to be under the influence of narcotics. Orndoff admitted under questioning that she had used marijuana earlier in the day. Fisher then held her in contempt.

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It became legal in July of that year to possess, grow and consume small amounts of marijuana in Virginia. Fisher told the attorneys in the courtroom that it was problematic that Orndoff had appeared to be intoxicated, not that she had smoked marijuana.

“What am I supposed to do?” Orndoff can be heard saying on a recording of the trial as she was taken into custody by sheriff’s deputies. “I don’t understand.”

Fisher declared a mistrial in Orndoff’s ex-boyfriend’s case, but he later pleaded guilty to misdemeanor assault and battery.

Orndoff appealed Fisher’s contempt citation, arguing she was not high, simply nervous, and that there was no basis for Fisher’s ruling, which drew a furious backlash from women’s groups and Loudoun County’s then-prosecutor, who said it would have a chilling effect on domestic violence victims’ willingness to testify in court.

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A three-judge panel of the appeals court sided with Orndoff in June, saying Fisher was required to witness the conduct that the contempt citation was based on and that the judge should have held a hearing before issuing the citation. The Office of Virginia Attorney General Jason Miyares, which is representing Fisher, appealed that ruling for a rehearing before the Court of Appeal’s full panel.

“The Attorney General is very pleased with the result, and believes that justice has been done in this case,” Miyares’s spokeswoman, Victoria LaCivita, said in a statement.

Fisher did not respond to a request for comment.

Thomas K. Plofchan, an attorney for Orndoff, said she was likely to appeal the ruling to the Virginia Supreme Court. The Post typically doesn’t publish crime victims’ names, but Plofchan said Orndoff was okay being identified.

“Eight appellate judges said that Judge Fisher violated Orndoff’s rights, and eight did not say that he acted appropriately but only that no error occurred,” Plofchan said.

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