morrogh reply to senator grassley geer inquiry

8/10/2019 Morrogh reply to Senator Grassley Geer Inquiry

1/4

RAYMOND F. MORROGH

COMMONWEALTH S ATTORNEY

CASEY

M. LINGAN

CHIEFDEPUTY COMMONWEALTH S ATTORNEY

JOHN R. MURPHY

DEPUTY

COMMONWEALTH S

ATTORNEY

KATHER1NE

E. STOTT

DEPUTY COMMONWEALTH S ATTORNEY

ROBERT

D.

MCCLAIN

DEPUTY COMMONWEALTH S ATTORNEY

703 246 2776

OF

C O U N T Y

OF

F A I R F A X

4110CHAIN BRIDGE

ROAD,

ROOM

1 14

FAIRFAX, VIRGINIA

22030 4047

December

19,

2014

TheHonorable

CharlesE.

Grassley

Ranking

Member

Committee

on

the

Judiciary

United States Senate

Washington, DC 20510-6275

JOHN

J MURRAY

GREGORY O. HOLT

KATHRYN A. PAVLUCHUK

BRANDON R. SHAPIRO

MARK

J. SULLIVAN

JAMES S. PANAGIS, JR.

J. DAVID GARDY

MICHAELM.

GROMOSAIK

JESSICA L. GREIS EDWARDSON

LENAS. MUNASIF1

LAURA

A.

RIDDLEBARGER

GEORGE L. FREEMAN, IV

MAHA

REBEKAH R. ABEJUELA

ELIZABETH A. KOHUT

MATTHEW

B. KAPUSCINSKI

KIERAN O.

CARTER

MARIN B.

HOPLAMAZIAN

JAMIE S. HILES

ERIN

M.

SIZEMORE

CHARLES

K.

PETERS

RACHEL

M.

ROBERTS

STEPHEN J.

FOSTER

RYAN B. BREDEMEIER

SEAN

P.

O BRIEN

ELENA G. LOWE

KATHLEEN

M. BILTON

BRANDON

R.

SLOANE

LAUREN E.

HAHN

ASSISTANTS

Dear

Senator

Grassley:

This is

in

response to

your

letter

of

December 16, 2014. As per

your

request I respond

seriatim

to

the questions you have posed. For purposes

of

clarity and for

the

convenience

of

readers I

have included

the questions

above each

of m y

answers.

1.

Did

FCPD

ever

refuse to provide to your office any information,

documents, or

evidence

pertaining to

this

case-including the personnel

file

or

the

internal affairs

file

of

the officer who

allegedly shot John

Geer?

Yes.

If so:

a. Please

explain what was

withheld

and the reason given

for

the withholding.

Internal

affairs

records were

withheld.

The

reasons

given for withholding

were

as

follows:

i) The case of Garrity et

al. v. New

Jersey 385 U.S.493 1967);

ii)

The

case

of

In re Grand

Jury

John

Doe

No.

G J

2005-2

v .

United States

478 F.3d

581

(4

th

Cir

2007);

iii)

Executive

Privilege;

iv)

Va.

Code 2.2-3706(A)(2)(i) Chapter 37 Virginia

Freedom

of Information

Act;

v ) Privacy concerns regarding internal

affairs

files.


2/4

Senator Grassley

December 19,

2014

Page 2 of 4

b. Prior to referring the

matter

to the U.S.

Attorney

did you

take

any additional

steps

to obtain the withheld material?

Yes.

If so

what

steps did

you take and how

much

time did this process

consume?

If

not,

why not?

A s

you know,

this

officer-involved

shooting

occurred on August 29,

2013.

During

the following weeks and months Fairfax County detectives worked

diligently

on the

investigation. The

report

of autopsy

was

approved and released by the

Medical

Examiner

on

November

20,

2013. I

received

it

on

November

26, 2013

from the

Medical Examiner s Office. I received

the

bulk of written police reports

on

the case

on

December 4, 2013. In the meantime, I

had

been supplied with

numerous

transcribed

witness interviews

as

well

as

photographs and

other materials

related

to

the investigation. I reviewed materials

as

I received

them

and was

kept

informed by

detectives throughout the investigation.

In

the course

of the

investigation, I

requested

Internal Affairs

reports be

provided.

On

November 14,

2013

I met

with

the

Chief

of the Fairfax

County Police

Department, a

captain

from Internal A ffairs

FCPD,

and

three

lawyers from the

Fairfax

County Attorney s office. During this meeting,

for

the first time,

I

was

apprised that

the FCPD refused to voluntarily provide me with the records

I

had

requested for the reasons set forth above

in

la.

A t

that

meeting,

I

addressed each

of

their concerns, none

of which,

in

my

legal

opinion, warranted the

withholding

of

the requested materials.

I argued that in

cases

of

this nature the public has

to

have

complete

confidence

in the

integrity

of the

investigation.

I explained that I

could

not

complete my investigation into

the

case

without

access

to

all potentially relevant

materials.

The

meeting

ended without

resolution

of this issue.

M y

office

prosecutes

cases

investigated by nine separate

local

and campus

police

departments and a

number

of federal law enforcement agencies as

well.

We rely on

the officers from

these various

departments

to conduct criminal investigations.

This

case was

no different. Two

experienced and dedicated Fairfax

County

detectives

were

assigned by the FCPD

to

this investigation.

I

had, and

still have,

complete

confidence in

their ability and integrity.

However, the

decision

made

by

the

Chief

of

Police

and his advisors to

withhold

the requested

materials

effectively

prevented

me

from completing the investigation and rendering

my decision.


3/4

Senator Grassley

December 19,2014

Page

3

of 4

After the November meeting, I explored the legal options and mechanisms which

might be available to

allow my

office to successfully compel the production of the

internal

affairs files

over

the Office

of

the County Attorney s

objection.

For instance,

a

subpoena

duces tecum was unavailable for two reasons: (l)there was no action

pending

in

court

and 2)

a subpoena

duces

tecum

cannot issue against a

party

to a

criminal case. See

Va.

Sup

Ct. Rule 3A:12. Police chiefs

and

police officers

conducting

criminal investigations

are considered to be

agents

of the

Commonwealth,

and

thus, documents

in

their possession are not subject

to subpoenas

duces tecum.

See Moore

v .

Commonwealth 200 Va.

App.

LEXIS

538

2000); Ramirez v.

Commonwealth

20

Va. App.

292

1995).

O n

December

4,

2013

I

again

requested

the Office

of

the

County

Attorney and

F C P D

to

reconsider its

position and

turn

over the internal

affairs files.

On January 6,

2014

the

Office

of

the County

A ttorney

informed me

that

they would

not

voluntarily

turn over

the documents.

They reiterated their position

that I

could file a

motion

for a

subpoena

which

they

would oppose

in

court.

The next

day

on

January

7,

2014

the

Office

of

the

United

States

Attorney for the Eastern

District

of Virginia

agreed

to take

the case at my

request.

Even

had

there been a legal instrument through which I could have obtained the

documents, the Office of the County Attorney

had

informed me that it would

oppose

production of

the documents

in

court. A t

that

point

I

was

convinced

that the public

could not have complete confidence in an investigation where one arm of the police

department

was

cooperating with the prosecutor

while

the

Chief and Internal Affairs

Section

along with the

Office of

the

County

Attorney were

seeking

to withhold

information

albeit for reasons which they believed entitled them

to do so.

2. Prior to referring this case to the U.S. Attorney:

a.

Did you

attempt

to refer

the

case

to the

Attorney

General

of Virginia or

another Commonwealth s Attorney so

that possible

violations of

state

law

could be

investigated?

No.

If

not,

why

not?

Please understand that

the

A ttorney General of

Virginia plays a much different

role here

in

the

Commonwealth

than

the

A ttorney

General

of

the

United

States does

in the

federal system. To be clear, the Attorney

General of

Virginia

has no

authority

to

institute or

conduct

criminal prosecutions

in the Circuit

Courts

of the

Commonwealth except

under

limited circumstances

not applicable

here.

I

did

not attempt to

refer the case to

another Commonwealth s A ttorney because

he

or

she would have

encountered the

same impediments

detailed in

my response

to

your question lb.


4/4

Senator

Grassley

December 19,2014

Page 4

of

4

b. Did you ever seek guidance from the Attorney

General of

Virginia?

No.

If

not,

why

not?

Please refer

to my

answer

to

your

question

2a.

3. Did you instruct FCPD to refrain from disclosing

information

about this shooting?

No.

4.

Was

there

a

conflict

of

interest that

you

believed

merited referral of this case from

your office to the U.S.

Attorney s

Office?

Yes.

i) What was the conflict?

The conflict of

interest

that led

me

to

request

the intervention of the

U.S.

Attorney s Office is detailed

in

answer to your

questions1and

2.

ii) When

did

you

discover

the

conflict?

See answers to your questions1and 2.

iii) When

and

to whom did you disclose the conflict?

See answer to your questions

1

and 2.

In

closing,

I

reiterate

that

I

maintain complete confidence

in

the

ability

and integrity

of

the detectives

who

investigated this

case. I also

have

the utmost

confidence in the

Office

of

the

United

States

Attorney in

the Eastern District

of Virginia. As

the Assistant

A ttorney

General

pointed out to you

in

his letter of November

21,

2014, the U.S. Attorney s Office is experienced

in handling cases of officer-involved shootings referred by local jurisdictions. The

U.S.

Attorney s

Office

has a well-deserved reputation

for

excellence. The active participation

of

the

U.S.

Attorney s Office

can only

serve

to

enhance

the public s

confidence in

this

investigation.

morrogh reply to senator grassley geer inquiry

Documents