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Judge’s ‘Unprecedented’ Ruling Ousting Prosecutor Over Light Plea Deal Is ‘Unconstitutional,’ Virginia’s Top Court Told

Buta Biberaj

Buta Biberaj

More than 60 former and current elected prosecutors asked Virginia’s highest court to find that a lower court judge threatened the separation of powers through his “unprecedented” decision to oust the commonwealth’s attorney for Loudoun County from a case over a lenient plea deal.

In June, a Loudoun County judge “removed and disqualified” the Commonwealth’s Attorney Buta Biberaj (D) from the case of Kevin Valle, a 19-year old who went on what had been described as a smash-and-grab rampage. The Washington Post reported that the teenager hurled rocks through windows and doors of local businesses and swiped merchandise or cash.

Biberaj, frequently described as part of wave of progressive prosecutors who oppose harsh sentencing, offered Valle a plea deal that called for restitution for the businesses and a six-month sentence. But Circuit Court Judge James E. Plowman Jr. rejected the deal and threw Biberaj off the case.

On Friday, the advocacy group Fair and Justice prosecution challenged that “unprecedented” decision in a brief to Virginia’s highest court.

“For decades, prosecutors have exercised discretion on whether to charge cases, what charges and penalties to pursue, and what plea bargains to offer,” their friend-of-the-court brief to the Supreme Court of Virginia states. “Indeed, it is well-settled that prosecutorial discretion is fundamental to the operation of the criminal justice system.”

The brief claims that the judge’s action was “both an unconstitutional infringement on separation of powers and contrary to Virginia law.”

Quoting the U.S. Supreme Court’s ruling in McCleskey v. Kemp, the memo continues: “The capacity of prosecutorial discretion to provide individualized justice is firmly entrenched in American law.”

The advocacy group’s executive director Miriam Krinsky called Plowman’s actions “completely out of bounds.”

“The voters of Loudoun County elected CA 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,” Krinsky said in a statement. “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 group claims that the lower court’s actions threaten “community self-governance” by eroding the rights of voters.

“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 brief says.

One of Biberaj’s peers, the Commonwealth’s Attorney for Albemarle County Jim Hingeley (D), echoed those sentiments.

“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,” Hingeley said in a statement. “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.”

Hingeley is one of the signatories of the brief. Other elected prosecutors on the list include Minnesota Attorney General Keith Ellison (DFL); District Attorney José Garza (D), from Travis County, Texas; District Attorney Eric Gonzalez (D), from Kings County, New York; and dozens of others.

Read the brief, below:

(Screenshot via WTTG YouTube)

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."