A Virginia judge again has booted Loudoun County’s progressive prosecutor from a criminal case, a judicial intervention that analysts say is extraordinary and raises questions about whether he is exceeding the bounds of his authority. Judge James Plowman Jr. month disqualified Commonwealth’s Attorney Buta Biberaj from the misdemeanor case against a father who was charged with disorderly conduct and resisting arrest. The charges came after the father appeared at a school board meeting to protest what he said was a coverup of his daughter’s sexual assault in a high school bathroom, the Washington Post reports. The case has become a rallying cry for conservatives nationwide, fueling backlash against a policy in Loudoun County schools — put in place after the assault — that allowed transgender students to use bathrooms that match their gender identity. Authorities described the assailant as a male student wearing a skirt; the girl’s parents say the person was “gender fluid.”
Judges only in rare instances remove attorneys from ongoing cases, but it was Plowman’s second time booting Biberaj from a case this year. Some legal experts have questioned whether Plowman has the legal authority to remove Biberaj from such cases. “No statute gives Virginia judges the power to do this,” said Darryl K. Brown, a professor of law and criminal procedure at the University of Virginia School of Law. “The sole statute that empowers 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 reason of a temporary nature.’ ”
Virginia’s highest court, Brown said, has held that the phrase “other reason of a temporary nature” refers to circumstances such as a sickness or disability. Biberaj says crime has fallen even as she has cut down on pretrial detention for nonviolent, low-level offenders. A recall campaign has gathered thousands of signatures. Organizers expect to begin the formal court process to remove the prosecutor next year.