VIRGINIA: IN THE CIRCUIT COURT OF LOUDOUN COUNTY COMMONWEALTH OF VIRGINIA €R00037874-00 v CR00037875-00 CR00037536-00 SCOTT A. ZIEGLER, Defendant RESPONSE TO MOTION TO DISMISS INDICTMENTS AND, ALTERNATIVELY,.TO DISQUALIFY THE OFFICE OF THE ATTORNEY GENERAL The Commonwealth objects to defendant’s request to dismiss the charges or in the alternative to disqualify the Attomey General from this prosecution, In support of her response the ‘Commonwealth alleges the following: Facts On January 15, 2022, Governor Glenn Youngkin signed Executive Order No. 4 (EO 4), which directed the Office of the Attomey General to, “initiate and coordinate investigative and prosecutorial efforts,” into the Loudoun County Public Schools (LCPS). (EO 4 attached), The order made direct reference to a sexual assault that occurred at a high school in the spring of 2021, and decisions made by administrators that led to a second sexual assault. EO 4. Subject to that order, the Office of the Attorney General initiated a special grand jury to investigate. The Loudoun County Circuit Court impaneled the Special Grand Jury on April 7, 2022. (Impanelling order attached). The Special Grand Jury had the authority to issue subpoenas and issued one to Dr. Scott Ziegler, who at the time was the Superintendent of the Loudoun County Public Schools (LCPS), and Jeff Morse, the Chairman of the Loudoun County School Board (LCSB). Steve Webster filed a motion to quash the subpoena on April 14, 2022, on behalf of bothPersonal capacity. (4/28/22 Ty. at 17)Defense counsel then took over the argument and repeatedly and consistently argued that Executive Order No. 4 and the impaneling of the Special Grand Jury under Code § 2.2-511 was beyond the scope of the authority given to the Governor. During the hearing, defense counsel made the following arguments to this Court: © “don’t know that the [Glovemor has the power to authorize the Attomey General’s Office to investigate, as it says, whether the Loudoun County Public Schools violated the rights of victims.” (4/28/22 Tr. at 19-20). [T]he designation, frankly, Your Honor, is just simply not narrow enough in order to — it did not say, investigate this activity.” (4/28/22 Tr. at 20). © “[I]t essentially is empowering the [A]ttorney [GJeneral, in that authorization section, to simply supplant the attorney for the Commonwealth in Loudoun County, and I don’t believe that that is the intent of Code Section 2.2-511.” (4/28/22 Tr. at 21-22). © “[I]t is contrary to the limitations that appear everywhere else in the Code of Virginia on the power of the [A]ttomey [GJeneral to initiate investigations of crime ....” (4/28/22 Tr. at 22). © After the judge told counsel that the issue to address was, “Whether the [A]ttomey [Gleneral can be involved to the scope of the subpoena,” defense counsel responded, “I think that our point on the subpoena’s validity on its face do dovetail with out position, which is that the Executive Order 4 is overly broad and outside the power of the [Governor to designate the [Alttomey [G]eneral to investigate this specific crime.” (4/28/22 Tr. at 28). “Impaneling a special grand jury, it does not allow the [A]ttomey [G]eneral’s [O}ffice, because this is such limited authority, to step into the shoes of attomey for the ‘Commonwealth in relation to a special grand jury.” (4/28/22 Tr. at 29),After listening to defense counsel the Court ruled, “Okay, I understand your argument. I think the [Ajttomey [G]eneral has the right to file the petition on their own.” (4/28/22 Tr. at 30). The Court went on to say, “When reading the statute and the code in its entirety, I think that is the only logical conclusion that one can make. So I think they are a proper attomey for the ‘Commonwealth to file a petition to impanel — to request the impanelment of the [SJpecial {GJrand [Jury.” (4/28/22 Tr. at 30-31). Even after the judge tried to retum to the issue of whether the foreman could sign the subpoenas, defense counsel continued to argue the point that the Executive Order No. 4 exceeded the scope of Code § 2.2-511 and therefore the Special Grand Jury was improperly impancled, (4/28/22 ‘Tr. at 33-41). Counsel specifically argued that EO 4 violated the intent of Code § 2.2-511, stating, “(I]t can’t be that the [GJeneral [A]ssembly intended, in 2.2-511, to allow the [GJovernor to simply have a shadow prosecutor in every jurisdiction in the Commonwealth, which could happen.” (4/28/22 Tr. at 38). Defense counsel pointed out the history of Code § 2.2-511 when she argued the General ‘Assembly had refused to expand the enumerated offenses that the Office of the Attomey General could prosecute without approval of the Governor. (4/28/22 Tr. at 39-40). At the conclusion of the hearing the Court reiterated a number of its findings. Most notably were: ¢ “The Court also determined that the [A]ttorney [G]eneral is the proper attorney for the Commonwealth that can initiate these proceedings, specifically the motion to petition to impanel a special grand jury.” (4/28/22 Tr. at 69).# “[Code § 2.2-511] does give the [Glovemor the authority to specifically request the [Alttomey [GJeneral to conduct criminal prosecutions, which [the Court] deem to include investigations as well, in the circuit courts.” (4/28/22 Tr. at 70). ‘© “[T]he [GJovernor’s order does meet the required specificity. ...” (4/28/22 Tr. at 72). Defendant filed a motion to reconsider on June 8, 2022. In that motion the defendant argued, “The Attomey General did not have the power to convene the Special Grand Jury, the Attomey General’s authority in criminal matters is limited to prosecutions, and an executive order could not expand the Attomey General’s authority to include investigation activities.” (Motion to Reconsider, 6/8/22 at 1). The defendant filed a 26-page brief in support of the motion that appears to mirror the arguments made in the current Motion to Dismiss. Specifically, that brief argued: Executive Order 4 was beyond the legal authority of the Governor (Ultra Vires)! + EO 4 goes beyond the authority of the Governor under “the plain language of Code §2.2-511? = The legislative history of Code § 2.2-511 demonstrates limited authority? = The evolution of the Grand Jury system shows limited authority under Code § 2.2- silt * Code § 2.2-511 has never given the Governor authority to confer broad investigative power to the Attomey General’ © The Special Grand Jury could not be expanded to “conduct a full investigation into LPS.” 2 This argument is repeated on page 10 of the current motion. 2 This argument is repeated on page 10 of the current motion. 9 This argument is repeated on page 15 of the current motion, + This argument is repeated on page 16 of the current motion, » This argument is repeated on page 19 of the current motion. 5That motion was argued before the Court on June 30, 2022. The Court denied the defendant's motion to reconsider.® Argument 1. Defendant's argument is barred by the legal principle of collateral estoppel In the preamble to his argument, the defendant states, “Virginia law does not permit the Attomey General, at the Govemor’s request, to seize the tools of criminal law enforcement and direct them against disfavored persons. EO 4 is ultra vires, and there is no legal basis of authority for the OAG investigation, the Special Grand Jury, nor the Indictments. The Indictments should be dismissed.” (Motion to Dismiss at 10), This is the exact same argument defense counsel made before this same circuit court twice before — and lost both times. Therefore, it is barred by the longstanding legal principle of collateral estoppel. Under the doctrine of collateral estoppel, the parties to an action and their privies are precluded from litigating in a subsequent suit any issue of fact actually litigated in, and essential to, valid and final judgment in the first action. See Simmons v. Commonwealth, 252 Va. 118 (1996). “Whereas res judicata precludes relitigation of issues which could have been litigated in a previous action but were not, collateral estoppel precludes relitigation only of those issues that were actually and expressly decided and necessary to the determination of, a prior suit between the same parties or their privies.” Charles Friend, The Law of Evidence in Virginia (7% Edition), page 92. “Furthermore, unlike res adjudicata, collateral estoppel applies even though the second proceeding between the parties is a different cause of action.” Friend, page 92, citing AKAK Corporation ¥. Commonwealth, 38 Va. App. 634 (2002). The burden rests with the party asserting the rule to * A transcript of this hearing was requested from Casamo but was not supplied prior to writing this response. If that transcript is made available prior to argument it will be incorporated into the ‘Commonwealth’ response.establish by a preponderance of the evidence that the precise issue or question the party seeks to preclude was raised and determined in the first action. Friend at 93, citing Reid v, Ascue, 246 Va. 454 (1993), United States v. Davis, 460 F.2d 792 (4% Cir. 1972). To invoke the doctrine of collateral estoppel, the party must show four things from the prior litigation: 1) the issue was the same; 2) the same issue was litigated; 3) the same issue was judicially determined; and 4) the determination was essential to the judgment rendered in the prior suit. See House v. Kirby, 233 Va. 197 (1987). Other cases have added the language of “mutuality,” meaning that a litigant cannot invoke collateral estoppel unless he would have been bound had the litigation of the issue in the prior action reached the opposite result. Friend at 93, citing Scales v, Lewis, 261 Va. 379 (2001). Whichever threshold is used, collateral estoppel applies to the defendant's argument that the indictments should be dismissed. Nothing required defense counsel to be involved in the April 28 hearing and to represent the defendant in his individual capacity rather than allowing Mr. Webster to argue the matter for the LCPS (and represent the defendant as the Superintendent). In fact, defense counsel twice noted that she had not had enough time to submit a written brief, (4/28/22 Tr. at 22, 41). However, she chose to argue on behalf of her client as an individual. (4/28/22 Tr. at 10). Furthermore, she clearly articulated the same arguments for why the Special Grand Jury violated the Code that she now makes in her motion. She repeatedly argued that Executive Order No. 4 exceeded the scope given to Governor Youngkin in Code § 2.2-511 (4/28/22 Tr. at 18, 19, 21, 22, 28, 29, 33-41), which is the exact same argument now made in her brief. The only difference is that the brief uses the Latin phrase Ultra Vires, meaning acting “beyond the scope of legal power or authority.” Merriam Webster Dictionary Online. Those two arguments are the same.This Court expressly ruled on Defendant’s argument twice. (4/28/22 Tr. at 30-31, 69-71). (Court's ruling attached). The judge held that the Office the Attomey General properly impaneled the Special Grand Jury. The defendant now asks this court to decide that exact same issue in his criminal case with no mention of why he should not be held to the Court’s previous rulings on the exact same issue. While the majority of collateral estoppel rulings in criminal cases involve the goverment being precluded from indicting a defendant after he was acquitted for a different crime that involved the same fact pattem nothing precludes the Commonwealth from arguing its application in cases such as this. See Friend, §1-11{d). For these reasons, the Commonwealth has shown that by a preponderance of the evidence, the vast majority of Dr. Ziegler’s argument has previously been decided by this Court and should not be relitigated in the criminal matter. If this Court cuts out the arguments repeated by the defendant from his previous failed motions, the only new material is contained on page 13 ~ that a limited authority approach to Code § 2.2-511 is, “confirmed by Virginia’s general structure for criminal law enforcement.” (Motion at 13). However, this same argument was orally made before this Court on April 28 and failed. The motion complains that, “{tJo read Code § 2.2-511 as the Attomey General has in this matter would allow the Governor to effectively amalgamate all criminal law enforcement power in one individual ~ the Attomey General ~ with the stroke of a pen.” (Motion at 14). This Court rejected this argument on April 28 for two reasons. First, the Court noted that the appointment on a non- enumerated type of offense had to be “specific”, which kept the Attomey General from handling any case that it wanted to, (4/28/22 Tr. at 22, 35, 71). Second, when defense counsel hypothesized that an expanded reading of Code § 2.2-511 would allow for a “shadow prosecutor in everyjurisdiction,” (4/28/22 Tr. at 38), the Court questioned why that was a bad thing, noting, “Some might say you're getting more bang for your buck because the [A]ttomey [General is elected as well.” (4/28/22 Tr. at 39). Therefore, even this argument has been previously heard and rejected by this Court, Il. Executive Order No. 4 and Code § 2.2-511 made the Attorney General “the attomey for the Commonwealth” for purposes of the instant special grand jury. Should this court hold that collateral estoppel does not prohibit the defendant from relitigating the same issue that he has twice lost on, the Commonwealth submits the same argument that this Court has previously accepted as persuasive.’ Specifically, Code § 2.2-511 creates two types of matters where the Office of the Attorney General has authority to, “institute or conduct criminal prosecutions in the circuit courts”: 1) those that fall under the 16 enumerated types of crime (which do not apply here); and 2) those that are “specifically requested by the Governor.” Code § 2.2-511(A). EO 4 from Governor Youngkin directed the Office of the Attomey General to investigate the Loudoun County Public Schools. Code § 2.2-511 reasonably authorizes the Attorney General to be able investigate criminal charges prior to their prosecution. ‘The “investigation” allowed for the impaneling of a Special Grand Jury under Code § 19.2-212. ‘The Attomey General is designated as the attomey for the Commonwealth in a large list of criminal matters, including violations of the Alcoholic Beverage Control Act, election laws, laws relating to motor vehicles and their operation, laws regarding the handling of funds by a state bureau, institution, commission or department, prosecutions for thefts of state property, violation of the child pornography laws, prosecutions for the unauthorized practice of law, 7 The appeal of this Court’s ruling to the Virginia Supreme Court (and that Court's denial of injunctive relief) by the LCPS focused on an argument under Article VIII § 7 of the Virginia Constitution and the Virginia Supreme Court specifically did not rule on Code § 2.2-511. Loudoun County School Board v. Commonwealth, Record No. 220497 (Sept. 2, 2022). 9prosecutions for various tobacco-related violations, and all criminal appeals in the Commonwealth. Code §2.2-511(A). Separately, the Governor may designate the Attomey General as the attomey for the Commonwealth in a particular criminal matter by specific authorization, however, as contemplated by the General Assembly in the first sentence of § 2.2- 511(A). Such authorization simply grants criminal jurisdiction to the Attomey General; it does not supersede the independent constitutional role of the elected Commonwealth’s Attomey. Code § 2.2-511(A) allows the Governor to specifically designate the Attomey General to “institute or conduct criminal prosecutions in the circuit courts of the Commonwealth.” Such a ‘grant of broad criminal jurisdiction to the Attomey General was indeed authorized in the recent past, In 2015, Govemor Terence R. McAuliffe granted Attorney General Mark R. Herring criminal jurisdiction to coordinate prosecutorial efforts against “firearms law offenders.” See Exec. Order 50 (2015), Executive Action to Prevent Gun Violence, available at http://digitool | .Iva.lib.va.us:1801/view/action/single Viewer.do?dvs=1650326230039~939&locale=e n_US&show_metadata=true& VIEWER_URL=/view/action/singleViewer.do?&DELIVERY_RULE. _ID=4&application=DIGITOOL-3&forebear_coll=1505&frameld=1 &usePid1=true&usePid2=true. Governor McAuliffe’s unchallenged executive order gave the Attorney General Jurisdiction over more than 30 different gun crimes in every single jurisdiction in the ‘Commonwealth. The instant Executive Order 4 (2022) is comparatively limited in topic, content, and geographic area, and it can hardly be said to be overbroad in light of the statewide authority granted to the Attomey General by Executive Order 50 (2015). Had the General Assembly desired to restrict the ability to initiate special grand jury proceedings only to the local Commonwealth’s Attomey, it would have specified that only the elected Commonwealth’s Attorney could do so. But it did not. The Attomey General can unquestionably petition any court in the Commonwealth to impanel a special grand jury with 10respect to any of its areas of original criminal jurisdiction, such as ABC, motor vehicle, and child pomography violations, so it does not follow that the Attomey General should be prohibited from empaneling a special grand jury when the Governor activates the statutory mechanism placing a particular investigation in the Attomey General’s original criminal jurisdiction, ‘The Governor's Executive Order No. 4, dated January 15, 2022, authorizes “an investigation of Loudoun County Public Schools by the Attomey General.” The Attomey General, therefore, is acting at the behest of the Governor, who has designated the Attomey General as the attorney for the Commonwealth in this matter. As such, the Attorney General is lawfully authorized to initiate special grand jury proceedings pursuant to Code 19.2-206(A){ii). ‘The defendant’s motion makes the illogical argument that even if the Office of the Attomey General could prosecute Dr. Ziegler for these crimes, Code § 2.2-511 does not give the Attorney General the authority to investigate the allegations before initiating prosecution, invalidating the indictments. (Motion at 11-12). Defendant notes that “the word ‘investigate’ is wholly absent from Code § 2.2-511.” (Motion at 11). Defendant essentially argues it was the intention of the General Assembly in writing Code § 2.2-11 to force the Attomey General into court to try a case with no ability to investigate the allegations prior to going to trial. “[W]e must give the effect to the legislature’s intention as expressed by the language used unless a literal interpretation of the language would result in a manifest absurdity.” Conyers v. Martial Arts World of Richmond, 273 Va. 96, 104 (2007). Defendant argues that because the Code authorizes the Attomey General to “institute or conduct criminal prosecutions,” but does not specifically authorize “investigations,” then the Attomey General was without authority to conduct the Special Grand Jury and any indictment is void. (Motion at 11). This Court agreed that this would be an absurd reading of the language of the statute when he held, “But [the Code] uldoes give the governor the authority to specifically request the attomey general to conduct criminal prosecutions, which I deem to include investigations as well, in the circuit court.” (4/28/22 Tr. at 70). ‘The Govemnor’s Executive Order No. 4, dated January 15, 2022, authorizes “an investigation of Loudoun County Public Schools by the Attorney General.” The Attorney General, therefore, is acting at the behest of the Governor, who has designated the Attomey General as she attorney for the Commonwealth in this matter. As such, the Attorney General was lawfully authorized to initiate special grand jury proceedings pursuant to Code 19.2-206(A)(ii). ‘Therefore, even if the court does not rule the motion barred by collateral estoppel, the motion to dismiss the indictments is without merit. TIL. The Office of the Attomey General is not disqualified from prosecuting the jctment for retaliation ‘The defendant asks this court to disqualify the Office of the Attomey General from prosecuting the indictment for retaliation, based on the enforcement language contained in Code § 2.2-3126. ‘The Commonwealth recognizes the retaliation statute has an accompanying enforcement statute, Code § 2.2-3126, giving jurisdiction to the attomey for the Commonwealth “within the political subdivision” where the local employee serves. While this language would normally give the Commonwealth’s Attomey for Loudoun County jurisdiction in a matter such as this, in this case the Governor exercised his authority under Code § 2.2-511 to direct the Attomey General to ““nitiate and coordinate investigative and prosecutorial efforts . . . .” EO 4 at 2. The indictment under, and subsequent prosecution of, Code §2.2-3108 by the Office of the Attomey General simply fulfills this exclusive grant of authority by the Governor. However, should the Court agree that the enforcement provisions of Code § 2.2-3126(A) ives exclusive jurisdiction to the Loudoun County Office the Commonwealth's Attomey (OCA), 12clearly dismissal of the indictment is not the proper remedy. In his motion, the defendant argues that the Retaliation indictment (CR00037874-00) should be dismissed since the enforcement provision against a local official is the Commonwealth's Attomey for the “subdivision”. (Motion at 22). The proper remedy for a valid indictment would be to place on a scheduling docket for a member of the Loudoun OCA to appear and confirm the trial date. WHEREFORE, the Commonwealth asks that the defendant’s motion for dismissal of the indictment or disqualification of the Office of the Attomey General be denied. Respectfully submitted, reo ‘Stamos (VSB No. 27124) Special Assistant to the Attomey General OFFICE OF THE ATTORNEY GENERAL, 202 North Ninth Street Richmond, Virginia 23219 (804) 418-9364 (804) 371-0151 Enmail: tstamos@oag. state. va.us 13CERTIFICATE OF SERVICE On January |, 2023, a copy of this response was emailed to counsel for the defendant, Erin Harrigan, at harrigan@gentrylocke.com and a copy was mailed to Gentry Locke, 919 E. Main Street, Suite 1130, Richmond, VA 23219. “2... Jason A. Faw Assistant Attomey General 14Commonwealth of Virginia Office of the Governor Executive Order ‘NUMBER FOUR (2022) AUTHORIZING AN INVESTIGATION OF LOUDOUN COUNTY PUBLIC SCHOOLS BY THE ATTORNEY GENERAL By virtue of the authority vested in me as Governor, I hereby issue this Executive Order requesting the Attorney General conduct a full investigation into Loudoun County Public Schools. ‘Importance of the Issue In the Spring of 2021, the Loudoun County School Board and the administration of the Loudoun County Public Schools. were made aware of a sexual assault that occurred in a Loudoun County high school. A decision was made to transfer the assailant to another Loudoun County high school, where the student was able to commit a second sexual assault. The Loudoun County School Board and school administrators withheld key details and knowingly lied to parents about the assaults. Neither the Loudoun County School Board, nor the administrators of the Loudoun County school ‘system, have been held accountable for deceiving the very Virginians they serve. Virginia parents deserve answers and assurances that the safety of their children will never be compromised.Attorney General Authorization By virtue of the authority vested in me by §2.2-511 of the Code of Virginia, Lam requesting the Attorney General to initiate and coordinate investigative and prosecutorial efforts and to take such actions as he may deem appropriate in order to protect the citizens of the Commonwealth and hold accountable any individuals who have violated existing law or violated the rights of victims of crime, fective Date This Executive Directive shall be effective upon its signing and shall remain in force and effect unless amended or rescinded by future executive order or directive. Given under my hand and under the Seal of the Commonwealth of Virginia, this 15 day of January, 2022. @ Vere) Therma — Kelly Thomasson, Secretary of the CommonwealthVIRGINIA: IN Tue Circurr Court of Loupoun County IN RE: MOTION TO IMPANEL SPECIAL, GRAND JuRY PURSUANT To CRIMINAL INVESTIGATION AUTHORIZED BY EXECUTIVE ORDER 4 (2022) FILED UNDER SEAL MOTION TO IMPANEL SPECIAL GRAND JURY COMES NOW the Commonwealth, by the Attomey General, in the person of Special ‘Counsel to the Attorney General Theophani K. ‘Stamos, and moves this Honorable Court pursuant to Code § 19.2-206(A)Gii) to impanel a special grand jury to investigate “any condition that involves or tends to promote criminal activity” related to Loudoun County Public Schools [hereinafter “LCPS”] and the Loudoun County School Board [hereinafter “LCSB”). In support of the instant motion, the Commonwealth attaches the Governor's Executive Order No. 4, dated January 15, 2022, “authorizing an investigation of Loudoun County Public Schools by the Attomey General.” The Governor's Executive Order authorizes the Attorney General, as the attomey for the Commonwealth, to “initiate and coordinate investigative and Prosecutorial efforts and to take such actions as he may deem appropriate in order to protect the citizens of the Commonwealth and hold accountable any individuals who have violated existing Jaw or violated the rights of victims of crime.” The Commonwealth has obtained preliminary evidence indicating that there exist conditions inside and involving LCPS and the LCSB that tend to promote various criminal activities; specifically, violations of Code § 18.2-47, § 18.2-57, § 18.2-63, § 18.2-67.1, § 18.2- 67.4, § 18.2-209, § 18.2-460, and potentially other yet-uninvestigated criminal conduct that may require further investigation. Unless otherwise indicated -by-the phrase “upon information-and— belief,” information related herein constitutes evidence directly obtained or observed by the Officeof the Attomey General during the course of this investigation. A. LCPS Teaching Assistant at Stone Bridge High School Informs Supervisors én ‘May 12, 2021, that a Student is Engaging in “Reckless” and “Unacceptable” Behavior On May 12, 2021, a teaching assistant at Stone Bridge High School, located in Loudoun County, Virginia, sent an email to her supervisors regarding the “reckless” and “unacceptable” behavior of « particular male student [hereinafter “assailant”]. The assailant had previously been classified as “emotionally disturbed,” and had a disciplinary file. The email stated, in part, “I ‘wouldn't want to be held accountable if someone should get hurt.” Its unclear what, if any, action was taken by the LPS supervisors to whom. the assailant's “reckless” and “unacceptable” ‘behavior was reported. B. The Assailant Reported to LCPS Supervisors as “Reckless” and “Unacceptable” on May 12, 2021, Commits a Criminal Sexual Assault on LCPS Property, Namely, Stone Bridge High School, on May 28, 2021 Despite this waming, on Friday May 28, 2021, the assailant sexually assaulted a female student in the female restroom at Stone Bridge High School. During the sexual assault, a teacher walked in the restroom and saw two pairs of feet in the same stall where the sexual assault was ‘ccurring. Notwithstanding this observation, the teacher took no action to intervene or report this observation, and she “assumed that they were both female students in the stall.” The students were in the bathroom together for approximately 24 minutes. Just hours after the incident occurred, the superintendent of LCPS sent an email to the entire Loudoun County School Board noting “a female student alleged that amale student sexually assaulted her in the restroom.” Prior to the May 28, 2021 incident, both the assailant and victim had engaged in consensual ‘sex with each other in the same restroom during school hours. The assailant and victim scheduledto meet in the restroom during school hours, on school property, and using the Discord messaging application on a Loudoun County Public Schools-issued Chromebook. The assailant described “calling a [hall] pass” to “have some ‘fun.”” C. Superintendent of LCPS Publicly Denies that a Criminal Sexual Assault Occurred on LCPS Property ‘On June 22, 2021, the LCSB held a meeting in Ashbum, attended by hundreds of residents and publicly televised. During that meeting, the superintendent of LCPS said, “to my knowledge we don’t have any records of assaults occurring in out restrooms.” D. Assailant Arrested for the May 28, 2021, Criminal Sexual Assault on LCPS Property On July 8, 2021, the assailant was arrested on two counts of forcible sodomy under § 18.2 67.1. On July 26, 2021, while his charges were still pending, he was released from custody Pursuant to § 16.1-277.1(A) and ordered to wear an ankle monitor by a Loudoun County Juvenile and Domestic Relations District Court Judge. E, The Assailant Transfers to a Different School within the LCPS System ‘The 2021-2022 LCPS School year began on August 26, 2021. On or around that time the assailant, wearing an ankle monitor, began attending school at Broad Run High School, located in Loudoun County. The circumstances of the LCPS approval process for the transfer of the assailant to Broad Run High School, including whether any warnings were given to the administration at Broad Run High School about the assailant's prior conduct, are unknown to the Commonwealth at this time,—_ = F. The Assailant Commits a Second Criminal Assault on LCPS Property, Namely, Broad Run High School, on September 9, 2021 On September 9, 2021; while on the property of Broad Ru High School; ar LCPS facility, the assailant committed multiple acts of unwanted touching of another female student and asked 3‘the student if she had any nude photos on her computer. This incident was reported both to school ‘administration as well asthe Loudoun County Sheriff's Office. Review of law-enforcement reports related to this incident indicates probable cause to believe the assailant committed an assault and battery. Despite this occurrence, LCPS allowed the assailant, still wearing an ankle monitor and ‘on pre-trial release awaiting trial on two counts of forcible sodomy, to remain a student at Broad ‘Run High School G. The Assailant Commits a Third Criminal Act and Second Criminal Sexual Assault on LCPS Property at Broad Run High School on October 6, 2021 On October 6, 2021, the assailant attacked another victim at Broad Run High School during school hours. The assailant was subsequently charged with one count of abduction and one count of sexual battery. On October 11, 2021, public media for the first time reported on both the May 28 and October 6 incidents, and noted the offenses were committed by thé assailant. H. Conclusion and Prayer for Relief ‘The Commonwealth submits that the apparent failure of LCPS and LCSB personnel to timely take affirmative action to develop a safety plan regarding a repeat sexual predator is evidence that “any condition that involves or tends to promote criminal activity” exists. This condition is all Code § 19,2-206 requires to impanel a grand jury. As such, the Commonwealth requests that, pursuant to Code § 19.2-207, the Clerk of this Court summon a sufficient number of qualified potential special grand jurors such that the Court ‘may select not less than seven (7) nor more than eleven (11) members to serve a term of not more than six (6) months, unless earir discharged Pursuant to Code § 19.2-213 or by order ofthe Court. ‘The Commonwealth further requests that, pursuant to Code § 19.2-211, this Court appoint -Spocial- Agent Eric Deel and Special Agent Wanda Beard of the Virginia State Police to assist the special grand jury in its investigation; the Commonwealth additionally requests pursuant to § 19.2- 4211 that the Court appoint Theophani K. Stamos, Esq., Carlton Davis, Esq., Brandon Wrobleski, Esq., and Jeremy Key, Esq., as special counsel to the special grand jury. The Commonwealth farther requests that, pursuant to Code § 19.2-212, this Court appoint a court reporter to transcribe all oral testimony taken before the special grand jury. I ASK JOR THIS: ‘Theophani K. Stamos Special Counsel to the Attorney General for Cold Cases, Actual Innocence, and Special InvestigationsVIRGINIA: IN THe Circurr Court oF Loupoun County eee eee, Se ORDER DENYING MOTIONS TO QUASH ‘SPECIAL GRAND JURY SUBPOENAS ‘THIS DAY, April 28, 2022, came the Attomey General of Virginia. by Special Counsel to ‘the Special Grand Jury Theophani Stamos and Carlton Davis; came also counsel for Petitioners ‘Scott Ziegler, Jeff Morse, and Diane Mackey, Steven Webster, Esq.; came also counsel for Scott Ziegler, Erin Harrigan, Esq. THIS MATTER came before the Court for hearing on Petitioners’ motions to quash subpoenas issued by the Special Grand Jury. ‘The Court has reviewed the briefs and motions filed by all partes and considered the positions advanced at oral argument on April 28, 2022. ‘THE COURT THEREFORE HOLDS that the Special Grand Jury subpoenas at issue were validly signed and issued by Special Counsel to the Special Grand Jury. ‘THE COURT FURTHER HOLDS that the Attomey General is a proper attomey for the ‘Commonwealth that can move to impanct a special grand jury. THE COURT FURTHER HOLDS that Executive Order 4 (2022) constitutes an ‘appropriate, and specific, request of the Governor within the meaning of Code § 2.2-511. IT IS THEREFORE ORDERED that for the reasons stated on the record, and after full consideration of the parties’ motions, briefs, and oral arguments, Petitioners’ motions to quash the Special Grand Jury subpoenas sre DENIED. merettin J aay of une, 202,James E, Plowman, Jr. Judge, 20" Judicial Circuit ‘K, Stamos, Esq. (VSB 27124) Special Counsel to the Attomey General tstamos@oag,state.va.us. Carlton J. Davis, Esq, (VSB 80283) Special Assistant for investigations cdavis@ong state.va.us Office of the Attorney General 10555 Main Street, Suite 350 Fairfax, VA 22030 GRAN aD OMRRETED To POR THE BxASOHtE STATED IMENT (OBJECTIONS CONTINUED BELOW) Steven T. Webster (VSB 31975) ‘Erin M, Harrigan (VSB 71 swebster@websterbook.com 919 E, Main Street, Ste. 1130 ‘Aaron 8. Book (VSB 43868) Richmond, VA 23219 a 804-297-3700 300N. Washington St., Suite 404 harrigan@gentrylocke.com (888) 987-9991 (telephone and fax) ADDITIONALLY OBJECTED TO FOR THE REASONS SET FORTH IN DR, ZIEGLER'S: BRIEF IN SUPPORT OF HIS MOTION TO RECONSIDER QUASHING APRIL 7, 2622, SUBPOENA