OF

COUNTY OF FAIRFAX
RAYMOND F. MORROGH
COMMONWEALTH'S ATTORNEY

41 10 CHAIN BRIDGE ROAD, ROOM 1 14

FAIRFAX, VIRGINIA 22030-4047

CASEY M. LINGAN
CHIEF DEPUTY 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

December 19, 2014

The Honorable Charles E. 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
MICHAEL M. GROMOSAIK
JESSICA L. GREIS EDWARDSON
LENA S. 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 my 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 (4th 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.

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?
As 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 Affairs 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.
At 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.
My 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.

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).
On December 4, 2013 I again requested the Office of the County Attorney and
FCPD to reconsider its position and turn over the internal affairs files. On January 6,
2014 the Office of the County Attorney 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. At 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 Attorney General of Virginia plays a much different
role here in the Commonwealth than the Attorney 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 Attorney because
he or she would have encountered the same impediments detailed in my response to
your question lb.

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 questions 1 and 2.
(ii) When did you discover the conflict?
See answers to your questions 1 and 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 Attorney 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.