Arnold & Porter Secures Reinstatement of Prosecutor’s Office After Disqualification Over Court’s Challenge to Plea Agreement

Arnold & Porter recently helped secure an appellate victory for due process in a case before the Supreme Court of Virginia involving Loudoun County Commonwealth’s Attorney Buta Biberaj.

In late 2021, the Commonwealth’s Attorney’s Office for Loudoun County completed plea negotiations in an ongoing burglary prosecution in the circuit court. At the January 2022 plea hearing, the court questioned certain assertions in the prosecution’s proffer of facts, while accepting the defendant’s guilty plea and continuing the case. The circuit court subsequently rejected the plea agreement and, without prior notice to any of the parties, disqualified the entire Commonwealth’s Attorney’s Office from the prosecution, saying that its prosecutors had insufficient knowledge about the case.

On June 14, 2022, Commonwealth’s Attorney Biberaj petitioned the Supreme Court of Virginia for a writ of mandamus to annul the disqualification order. After the Virginia Attorney General moved to dismiss the appeal, Arnold & Porter and its co-counsel submitted responsive briefs on Ms. Biberaj’s behalf. More than 60 current and former elected prosecutors and state attorneys general also submitted an amicus curiae brief in support of Ms. Biberaj. On December 8, 2022, the Supreme Court of Virginia issued the requested writ of mandamus and annulled the disqualification, stating that Ms. Biberaj’s office was disqualified ”without affording her or her subordinates adequate notice or opportunity to be heard.”

“The Supreme Court of Virginia’s decision was an important win for the rule of law,” said Arnold & Porter senior associate Preston Smith.

“This ruling confirms that the due process safeguards of notice and fair hearing protect all attorneys who enter a courtroom, whether they represent private parties or the government,” partner Murad Hussain added.

The Arnold & Porter appellate team included partner Murad Hussain, senior associate Preston Smith, and associate Elliot Rosenwald, and collaborated with Vic Glasberg from Victor M. Glasberg & Associates.