In May 2021, 19-year-old Kevin Valle and another young man went on a smash-and-grab rampage. Across four counties in Northern Virginia, they hurled rocks through the windows or doors of closed businesses, stepped inside and took what they could, whether merchandise or cash registers or cash. They were arrested in Loudoun County, with some of the stolen items in Valle’s car, and soon began entering guilty pleas to their various cases, in different jurisdictions.
In Loudoun, prosecutors for Commonwealth’s Attorney Buta Biberaj (D) reached a plea deal with Valle’s lawyer for six months in jail and restitution to each of the businesses that were hit. But Circuit Court Judge James E. Plowman Jr., who sits in both Loudoun and Fauquier counties, had seen Valle in an early appearance in Fauquier, and noticed that his charges and pleas there weren’t mentioned by the Loudoun prosecutors.
After another hearing left Plowman unsatisfied with the plea deal, he kicked the entire prosecutor’s office off the case.
The move was a rare, if not unprecedented, step in Virginia, legal experts said, and represented the latest pushback against a wave of progressive prosecutors who won elections nationwide in recent years promising to reduce incarceration, stop prosecuting low-level crimes and focus on violence. In San Francisco, district attorney Chesa Boudin was recently recalled from office after serving less than three years. State attorneys general in multiple states have taken actions to overrule local prosecutors. Biberaj and other prosecutors in Northern Virginia also face recall efforts.
In January, Plowman asked Biberaj why her prosecutors hadn’t told him about Valle’s other pleas, or about his juvenile record. In April, at Valle’s sentencing, Plowman again asked about Valle’s background, was unsatisfied, and continued the case. He made the move to oust Biberaj’s office without any further notice or hearings.
Plowman, who spent 15 years as the Loudoun prosecutor before joining the bench in 2019, hammered his successor by saying her proffer in the case “sanitizes the facts by screening the court” from knowledge of the other cases, which he deemed “an overt misrepresentation by omission.” Biberaj’s proffer of facts “reflect[s] an inability … to properly prosecute this case with the detail and attention required of a criminal prosecutor,” Plowman wrote.
“The Loudoun County Commonwealth’s Attorney’s Office is hereby removed and disqualified” from Valle’s case, the judge concluded.
Shortly afterward, Virginia Attorney General Jason Miyares (R) — who is leading a political action committee dedicated to recruiting conservative prosecutor candidates — sent a letter to the court offering his services to prosecute the case instead of Biberaj. Plowman instead appointed the Fauquier prosecutor and recused himself from the case, as Virginia rules require whenever a judge rejects a plea agreement.
“This is not about Buta Biberaj,” Biberaj said in an interview. “It literally is about individuals who are inserting themselves into the electoral process.” She compared the resistance to elected progressive prosecutors to the actions of rioters attempting to interrupt the electoral college certification at the U.S. Capitol on Jan. 6, 2021. “These people are trying to subvert the will of the voters,” Biberaj said.
Biberaj has filed a petition with the Virginia Supreme Court asking it to annul the order disqualifying all 23 lawyers in her office from the Valle case. The request is pending. Plowman declined to comment. Rules prohibit judges from commenting on pending cases.
“Any time a locally elected prosecutor is being removed from prosecuting a case, there are grave separation-of-powers issues at stake, and it’s really a radical act,” said Thomas Frampton, a law professor at the University of Virginia. “Prosecutors are vested with extremely broad discretion to pursue justice as they see fit. When you have a judge who appears to have taken such an action, that judge is supplanting his views of justice for what a democratically elected prosecutor feels is appropriate.”
But the opponents of such prosecutors feel they simply can’t wait for another election. “The lion’s share of this progressive prosecutors group are incompetent, unqualified and in over their heads in this role,” said Sean Kennedy, head of Virginians for Safe Communities, which is seeking to recall Biberaj and the Fairfax and Arlington prosecutors also elected in 2019. “They’re not advancing the cause of social justice because they're not doing it well.”
Kennedy pointed to the September slaying in Loudoun of Regina Redman-Lollobrigido, who authorities say was beaten to death with a hammer by her husband, Peter Lollobrigido, two months after he’d been arrested and then released for choking his wife. Biberaj’s office did not oppose the release of Peter Lollobrigido as long as he wore a tracking monitor, and Loudoun Juvenile and Domestic Relations Judge Avelina S. Jacob granted him bond with a monitor. The monitor was not properly set up to trigger an alarm if Lollobrigido got near his wife, her family has said. The case against Lollobrigido is pending.
Kennedy acknowledged that the local prosecutors were chosen by voters and have held office for only two years, but, he said, “you were sworn to uphold an oath” to protect the community, “and our recall directly says you violated that oath.” He noted that judges in Fairfax County have sharply criticized Commonwealth’s Attorney Steve Descano for plea deals they felt were too lenient in sex crimes cases. Descano’s office has said it acted appropriately under the circumstances in each case. “The most liberal members of Fairfax or Loudoun County don’t want to see child rapists get lighter sentences. It’s unbelievable that they’re so ham-handed about it,” Kennedy said.
The Valle case became somewhat complicated because he was charged in four counties. Prosecutors said he promptly cooperated and agreed to plead guilty in Loudoun, Fauquier and Prince William counties, and he has a plea hearing scheduled in Fairfax on Monday.
In Loudoun, Valle and attorney John Boneta reached a deal in August 2021 for Valle to plead guilty to five charges and receive a six-month sentence. Biberaj said her office consulted with the four business owners who were victimized, and all agreed that the restitution and sentence were fine. She said the Loudoun detectives who handled the case also were satisfied with the resolution. On Aug. 5, Valle waived his preliminary hearing and agreed to plead guilty.
In a hearing Thursday, Boneta supported a request by Biberaj to postpone Valle’s case until the Supreme Court rules, saying the defense should be heard on the issue of disqualifying the prosecutor. Valle had “a contract” with the prosecutors, Boneta noted. Circuit Court Judge James P. Fisher declined to hear from Biberaj and recognized Fauquier Commonwealth’s Attorney Scott Hook as the new prosecutor in the case.
Several months after agreeing to plead guilty in Loudoun, Valle made a scheduling appearance in Fauquier before Plowman, whose circuit encompasses both counties. Valle then pleaded guilty before Fisher, prior to his plea hearing in Loudoun. In January, when Valle appeared for his Loudoun plea, Plowman wondered why the prosecution’s documents didn’t mention the Fauquier case or his extensive juvenile record. Plowman noted in his order that he provided the lawyers with copies of the Fauquier case documents. Biberaj suggested that was going beyond the bounds of the Loudoun case.
A sentencing hearing was set for April, when prosecutors responded to Plowman’s questions about Valle’s background in a way the judge found unsatisfactory. Meanwhile, in Fauquier, Fisher sentenced Valle to three years and nine months in prison for his burglaries there. Another Loudoun hearing was set by Plowman, then postponed because of a lawyer’s illness.
Then Plowman acted. “The facts diverge from the Commonwealth’s illusory language,” the judge wrote on June 9. “The representations contained here are specifically drafted to mislead the reader and lack the appropriate level of candor with the court required of Virginia attorneys.”
Biberaj said the Fauquier plea happened after the Loudoun plea had already been signed. When Valle received a heavy sentence in Fauquier, the presentencing report from the state probation and parole department was used to alert the judge to changes in the defendant’s status in the period between plea and sentencing, Biberaj said.
Plowman cited a case out of Arlington as his authority for disqualifying the prosecutors. In that case, the Arlington circuit court barred an individual attorney from practicing in the county because of frivolous filings, failure to show up for court and other erratic behavior. The Virginia Supreme Court upheld the ban, saying, “A court has an inherent power to discipline and regulate attorneys practicing before it.”
But the banned attorney was given notice of the proposed ban and offered a hearing, legal experts noted. The Loudoun prosecutors were not. The attorney also was not an elected constitutional officer.
“Virginia judges are conservative and careful,” said Steve Benjamin, a Richmond criminal defense lawyer who serves as special counsel to the state Senate Judiciary Committee and is a past president of the National Association of Criminal Defense Lawyers. “That’s why it’s surprising when a judge acts without giving notice, or an opportunity for the parties to be heard, and for the public to be there.”
Benjamin added: “I’ve never heard of a judge, on his own motion, in the absence of a conflict of interest, recusing an entire commonwealth’s attorney’s office. When a judge acts unilaterally without proper safeguards, that diminishes public trust in the judicial system … A prosecutor is a constitutional elected officer. It’s up to the people to determine who represents them as prosecutor.”
Miriam Krinsky, the executive director of Fair and Just Prosecution, which advises progressive prosecutors around the country, said of Plowman’s order, “It isn’t the first and won’t be the last time, by someone that doesn’t agree with the changes these prosecutors are putting in place, to put up roadblocks to stop the changes that prosecutors said they were going to implement.” She and others noted that judges have other options when they disapprove of plea agreements, including bar complaints (also filed against Biberaj by Virginians for Safe Communities) and holding lawyers in contempt.
Krinsky acknowledged the fear that rising crime creates, “but we have to be smart in how we address that,” by not just targeting those with mental or housing issues. She also noted that no one has criticized progressive prosecutors in areas where crime has gone down. Crime in Loudoun, which has declined for years, has continued to drop during Biberaj’s tenure.