On Friday, a bipartisan group of 62 current and former elected prosecutors and attorneys general from across the country filed an amicus brief in the Virginia Supreme Court, supporting Loudoun Commonwealth’s Attorney Buta Biberaj’s appeal after Circuit Court Judge Jim Plowman tossed her office from prosecuting a burglary suspect.
In June, Plowman, Biberaj’s predecessor in the office, removed and disqualified Biberaj’s office from that case, describing the filings in a plea agreement as “misleading representations and entirely inaccurate.” Biberaj disputed those characterizations and said the judge lacked the statutory authority to remove her office from the case and appealed to the Virginia Supreme Court.
Organized by prosecutorial reform organization Fair and Just Prosecution, the signers argue allowing Plowman’s decision to stand would threaten voters’ ability to choose their prosecutors.
“It is completely out of bounds for a judge to throw an entire prosecutor’s office off a case simply because he disagrees with decisions that are squarely within the exercise of established prosecutorial discretion,” stated Fair and Just Prosecution Executive Director Miriam Krinsky. “The voters of Loudoun County elected [Commonwealth’s Attorney] Biberaj because of her commitment to roll back the harms of decades of tough-on-crime policies championed by her predecessor, who also happens to be the judge in this case. Any effort to prevent her from carrying out that vision is not just an attack on her discretion, but also an infringement on the will of the people who put CA Biberaj in office. It is essential that the Virginia Supreme Court recognizes the sanctity of separation of powers and allow CA Biberaj to carry out the work she was elected to do without judicial interference.”
The filing argues Plowman ignored existing Virginia law giving courts limited power to overrule prosecutors’ discretion, and that judges may reject plea agreements but must then recuse themselves from the case and allow another judge to evaluate the deal.
“Only by disqualifying the entire office and assigning a different Commonwealth’s Attorney—not elected by voters in Loudoun County—before he recused himself, could the judge preclude CA Biberaj and her office from any future engagement in the case. This dramatic and unprecedented move sent a clear message to CA Biberaj: exercise your discretion according to the court’s values and judgment or risk losing oversight and control of your cases,” the filing reads.
“Since the founding of our country, prosecutorial discretion has been enshrined as a crucial part of our justice system, even as it was used to fuel mass incarceration at immense human and financial costs,” stated Albemarle County Commonwealth’s Attorney Jim Hingeley, a signatory to the brief. “Now, when reform-minded prosecutors and the voters who put them in office are rejecting decades of failed tough-on-crime policies, the discretion that judges have respected for centuries must continue to be protected.”