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