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Va. Supreme Court overrules judge who booted progressive prosecutor off case

The Washington Post logo The Washington Post 12/8/2022 Salvador Rizzo
Buta Biberaj, then the commonwealth’s attorney-elect for Loudoun County, speaks at an event at the Center for American Progress in 2019. © Sarah L. Voisin/The Washington Post Buta Biberaj, then the commonwealth’s attorney-elect for Loudoun County, speaks at an event at the Center for American Progress in 2019.

The Supreme Court of Virginia handed a victory to Loudoun County Commonwealth’s Attorney Buta Biberaj (D) on Thursday in her dispute with a circuit court judge, ruling that the judge had incorrectly “divested her of her constitutional authority to prosecute” a teenager accused in several robberies without first hearing arguments on the matter.

Biberaj was reinstated as the prosecutor in the case of Kevin Enrique Valle, who was 19 years old when he was accused last year of robberies in several Northern Virginia counties and struck a deal with Biberaj’s office to plead guilty.

Circuit Court Judge James E. Plowman Jr. had issued an order in June disqualifying Biberaj’s office from the case, accusing prosecutors of hiding details from Valle’s criminal and juvenile record to “sell” a plea deal that called for six months in prison for nonviolent robbery charges.

Plowman cited his “inherent authority” as a judge and appointed the Fauquier County Commonwealth’s Attorney’s Office as a substitute. Biberaj challenged the move in the Supreme Court and said her opponents were “trying to subvert the will of the voters.” Some legal experts described the judge’s actions — disqualifying Biberaj and all 23 lawyers in her office from the case without notice or a hearing — as extraordinary.

Biberaj told The Washington Post that the Virginia Supreme Court’s ruling “fully vindicates what we did in that case.” She said the Virginia State Bar, an agency under the state Supreme Court, separately dismissed an ethics complaint against her office that was triggered by Plowman’s order in the Valle matter.

“It just lets the court know that we have a certain responsibility, and as an elected official, our community has a certain expectation that we are representing them,” Biberaj said.

Biberaj became Loudoun County commonwealth’s attorney in 2020 as part of a wave of liberal prosecutors elected nationwide. Plowman led the Loudoun County prosecutor’s office for more than a decade as a Republican, until taking the bench in 2019.

In an unsigned order, the Virginia Supreme Court said judges have the power to “regulate which attorneys may appear” to prosecute criminal charges “in some circumstances.” But Plowman was wrong to disqualify Biberaj, the high court ruled.

“Judge Plowman disqualified Biberaj’s office without affording her or her subordinates adequate notice or opportunity to be heard,” the Supreme Court said.

“Biberaj was entitled to notice and an opportunity to respond before Judge Plowman publicly relieved her of that authority based on the conclusion that the plea agreement … amounted to professional neglect, ineptitude, or malfeasance that infected Biberaj’s whole office,” the court said.

In a footnote, the court added, “In reaching this conclusion, we offer no opinion on any other issue relevant to the disqualification of Biberaj and her office.”

An attorney for Biberaj, Victor M. Glasberg, said, “This is an important success vindicating due process rights and a progressive prosecutor elected by Loudoun County voters.”

Months after removing Loudoun prosecutors from the Valle case, Plowman said he had concerns about Biberaj’s impartiality in another matter and replaced her with the Republican prosecutor in Stafford County. That politically charged case involves a confrontation at a school board meeting. But unlike in the prior case, Plowman held a hearing before ruling to disqualify Biberaj.

The Virginia Supreme Court ruled only on the Valle case Thursday.

Sean Kennedy, head of the group Virginians for Safe Communities, which is leading a recall effort against Biberaj, said that Plowman was right to disqualify her after finding that prosecutors misrepresented Valle’s record in his courtroom, but he added that the judge used the wrong process.

“This decision does not prevent Plowman or any other judge from tossing Biberaj for cause if they do it the right way,” Kennedy said. “Unfortunately, in this individual case, Biberaj’s misdeeds will go unpunished and a dangerous offender will get a slap on the wrist.”

Plowman recused himself from the Valle case after rejecting the plea deal. An attorney for Valle, who has a hearing scheduled for Feb. 9, declined to comment. A spokeswoman for the Loudoun County Circuit Court did not respond to a request for comment. Court officials previously said ethical restrictions prevented Plowman from making public comments about pending cases. A spokeswoman for the state attorney general’s office, which argued in favor of Biberaj’s disqualification, declined to comment.

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