A Virginia judge has once again removed Loudoun County’s progressive prosecutor from a criminal case, an extraordinary judicial intervention that raises questions about whether he is exceeding his authority.
In the most recent development, Circuit Court Judge James E. Plowman Jr. disqualified Loudoun County Commonwealth’s Attorney Buta Biberaj (D) from representing a Leesburg father charged with disorderly conduct and resisting arrest last year. The charges were brought after the father attended a Loudoun County School Board meeting to protest what he claimed was a cover-up of his daughter’s sexual assault in a Stone Bridge High School restroom.
The case has become a rallying cry for conservatives across the country, fueling backlash against a policy implemented in Loudoun County schools after the assault that allowed transgender students to use bathrooms that corresponded to their gender identity. Authorities described the attacker as a male student wearing a skirt, while the girl’s parents claimed the person was “gender fluid.”
Judges only remove attorneys from ongoing cases on rare occasions, but this was Plowman’s second time booting Biberaj from a case this year. Some legal experts question whether Plowman has the legal authority to remove Biberaj from such cases, while others say the judge’s actions raise issues of separation of powers.
“No statute gives Virginia judges the authority to do this,” Darryl K. Brown, a law and criminal procedure professor at the University of Virginia School of Law, said. “The sole statute authorizing judges to appoint a substitute for a local prosecutor authorizes that action only in very limited circumstances: when the commonwealth’s attorney ‘is unable to act, or to attend to his official duties as attorney for the Commonwealth, due to sickness, disability, or other temporary reason.”
According to Brown, Virginia’s highest court has ruled that the phrase “other reason of a temporary nature” refers to circumstances such as sickness or disability.
The judge’s actions are the latest setback for Biberaj, who claims that crime has decreased even as she has reduced pretrial detention for nonviolent, low-level offenders. A recall campaign has amassed thousands of signatures, and organizers say they expect the formal court process to begin next year to remove the prosecutor. Other judges have barred attorneys from Biberaj’s office from representing clients in cases involving a different sexual assault and recall attempts against a school board official. The Democrat chair of the Loudoun County Board of Supervisors has chastised Biberaj for hiring a sex offender as a paralegal and then incorrectly blaming the lapse on the county’s human resources department. Within a few days, the sex offender was released.
According to Plowman’s one-page order, dated Sept. 2, the court was unable to determine whether Biberaj had a direct conflict of interest. However, the judge called Biberaj’s impartiality into question and replaced her with Eric Olsen, the Republican prosecutor in Stafford County. Olsen stated that he received a courtesy call from Plowman prior to the appointment, but that the judge did not explain why he was chosen.
An attorney for the father charged with disorderly conduct, William M. Stanley Jr., accused Biberaj of bias and asked the judge to remove her from the case because she was heavily criticized after the student accused in the Stone Bridge High School sexual assault case was initially released. Stanley, a Republican state senator in Virginia, added in a legal brief that Biberaj “has been a fierce proponent of criminal justice reform” and was a member of the Anti-Racist Parents of Loudoun Facebook group, which has been accused of doxing opponents of teaching critical race theory in public schools. Stanley’s brief made no mention of how these activities impacted his client’s case.
The sexual assault occurred at Stone Bridge in late May 2021. The girl’s father was arrested during a school board meeting in June. The student assailant was arrested and released pending trial on July 8, 2021. Virginia law prohibits authorities from keeping juveniles in jail for more than three weeks before charges are adjudicated or transferred to a different court for adult proceedings. After being released, the student was charged with sexually assaulting another girl in October 2021 at a different school. Both assaults were committed by the student.
