Does anyone else think that someone should tell John Brownlee it isn’t the Attorney General’s job to prosecute criminal cases?

I swear, every other word that comes out of John Brownlee’s mouth is about how he used to be a prosecutor, as if that has any bearing on the Attorney General’s Office.

Maybe he should check out the Attorney General’s Office’s website. As one page notes, “[t]he Office of the Attorney General is the Commonwealth’s law firm. Its clients are the Virginia state government and the state agencies, boards and commissions that compose that government.”

On the list of “duties and powers” for the office (Id.), the only reference to prosecuting cases appears in the eight bullet stating, “[c]onduct or assist criminal investigations and prosecutions in certain limited cases” [emphasis mine].

Remember, also, that current Republican candidate for Governor and former Attorney General, Bob McDonnell, was responsible for the information on that website until a couple weeks ago.

Is Brownlee not familiar with Virginia law or something? After all, the guy has been doing federal, not state, cases for the past decade or more. Maybe he should consult Va. Code § 2.2-511 [emphasis mine throughout]:

A. Unless specifically requested by the Governor to do so, the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving (i) violations of the Alcoholic Beverage Control Act (§ 4.1-100 et seq.), (ii) violation of laws relating to elections and the electoral process as provided in § 24.2-104, (iii) violation of laws relating to motor vehicles and their operation, (iv) the handling of funds by a state bureau, institution, commission or department, (v) the theft of state property, (vi) violation of the criminal laws involving child pornography and sexually explicit visual material involving children, (vii) the practice of law without being duly authorized or licensed or the illegal practice of law, (viii) with the concurrence of the local attorney for the Commonwealth [the locale’s elected Commonwealth’s Attorney], violations of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.), (ix) with the concurrence of the local attorney for the Commonwealth, violations of the Air Pollution Control Law (§ 10.1-1300 et seq.), the Virginia Waste Management Act (§ 10.1-1400 et seq.), and the State Water Control Law (§ 62.1-44.2 et seq.), (x) with the concurrence of the local attorney for the Commonwealth, violations of Chapters 2 (§ 18.2-18 et seq.), 3 (§ 18.2-22 et seq.), and 10 (§ 18.2-434 et seq.) of Title 18.2, if such crimes relate to violations of law listed in clause (ix) of this subsection, (xi) with the concurrence of the local attorney for the Commonwealth, criminal violations by Medicaid providers or their employees in the course of doing business, or violations of Chapter 13 (§ 18.2-512 et seq.) of Title 18.2, in which cases the Attorney General may leave the prosecution to the local attorney for the Commonwealth, or he may institute proceedings by information, presentment or indictment, as appropriate, and conduct the same, (xii) with the concurrence of the local attorney for the Commonwealth, violations of Article 9 (§ 18.2-246.1 et seq.) of Chapter 6 of Title 18.2, (xiii) with the concurrence of the local attorney for the Commonwealth, assisting in the prosecution of violations of §§ 18.2-186.3 and 18.2-186.4, and (xiv) with the concurrence of the local attorney for the Commonwealth, assisting in the prosecution of violations of § 18.2-46.2, 18.2-46.3, or 18.2-46.5 when such violations are committed on the grounds of a state correctional facility.

In all other criminal cases in the circuit courts, except where the law provides otherwise, the authority of the Attorney General to appear or participate in the proceedings shall not attach unless and until a petition for appeal has been granted by the Court of Appeals or a writ of error has been granted by the Supreme Court. In all criminal cases before the Court of Appeals or the Supreme Court in which the Commonwealth is a party or is directly interested, the Attorney General shall appear and represent the Commonwealth. In any criminal case in which a petition for appeal has been granted by the Court of Appeals, the Attorney General shall continue to represent the Commonwealth in any further appeal of a case from the Court of Appeals to the Supreme Court.

I’m sure there’s a locale somewhere looking for a qualified Commonwealth’s Attorney, if John Brownlee wants to prosecute criminal cases, maybe he should go there.

13 Comments

  1. ccmaximus says:

    Actually, you are incorrect. The Virginia Attorney General’s Office has original jurisdiction to prosecute ALL internet related crimes in Virginia–even in Circuit Court.

    Additionally, the professional prosecutors in the Virginia OAG are also sworn in to prosecute cases as Assistant U.S. Attorneys in US District Courts. Case in point, the 643 Million dollar criminal judgement that was awarded to the VAOAG for its role in prosecuting the Perdue-Pharma Oxycotin case. The Medicaid Fraud Control Unit within the VA OAG has prosecutors assigned to it that prosecute cases in Circuit Courts and Federal Courts as Medicaid utilizes both federal and state money both courts can be used to prosecute these cases. And by the way, Brownlee was the US ATTY. for the Western District of VA when the Perdue Pharma case was prosecuted by the VA OAG in the Western District of Virginia. Please print a retraction to this post. Respectfully Submitted.

  2. I have nothing to retract: As Va Code § 2.2-511(A) clearly states: “the Attorney General shall have no authority to institute or conduct criminal prosecutions in the circuit courts of the Commonwealth except in cases involving […] (viii) with the concurrence of the local attorney for the Commonwealth [the locale’s elected Commonwealth’s Attorney], violations of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.)”.

    If the Office of the Attorney General (OAG) was responsible for prosecuting “ALL internet related crimes in Virginia” as you claim, and not just prosecution of the “violations of the Virginia Computer Crimes Act (§ 18.2-152.1 et seq.)” and then only “with the concurrence of the local attorney for the Commonwealth [the locale’s elected Commonwealth’s Attorney]”, then every time someone got arrested for the electronic solicitation of a minor (a violation of § 18.2-374.3), the OAG would be responsible for prosecuting the case. How many Assistant Attorney Generals are there and how many of those charges are brought every year? Must make it pretty busy in the OAG having to fly to every jurisdiction to prosecute those cases.

    And the term “original jurisdiction” refers to a trial court’s ability to hear a case. The OAG is not a court — trial or not — the last time I checked.

    Do you want to me to e-mail General Assembly and have them change the Code of Virginia? Makes you wonder if John Brownlee and his supporters approve of that activist judge stuff after all.

    While Bob McDonnell’s office was one party responsible for investigating the fraudulent marketing of Oxycontin (which was originally initiated by then-Attorney General Jerry Kilgore), he was not responsible for prosecuting the case, as noted in a press release from his office: “The case was prosecuted by Assistant United States Attorneys Rick Mountcastle, Randy Ramseyer and Sharon Burnham and U.S. Department of Justice, Office of Consumer Litigation, Trial Attorneys Barbara Wells and Elizabeth Stein.”[1] No mention of Virginia OAG personnel there.

    Money that was given to the OAG for disbursement was from a civil settlement — not a criminal prosecution — in state court — not federal — as noted by several of Bob McDonnell’s press releases.[2][3][4] That money however, was required to be released by Purdue-Pharma as a result of a plea deal in the original criminal case.[5]

    [1] http://www.vaag.com/PRESS_RELEASES/NewsArchive/051007_OxyContin.html
    [2] http://www.vaag.com/PRESS_RELEASES/NewsArchive/050807_OxyContin.html
    [3] http://www.vaag.com/PRESS_RELEASES/NewsArchive/013009_OxyContin_Settlement.html
    [4] http://www.vaag.com/CONSUMER/09February_Consumer_Alert.html
    [5] United States of America v. The Purdue Frederick Company, Inc., et al. 495 F. Supp. 2d 569; 2007 U.S. Dist. LEXIS 53042.

  3. James says:

    The Attorney General is without question a prosecutor. Currently, the AG supervises prosecutors who are investigating criminal cases involving child predators, Medicaid/Medicare fraud, illegal immigration, gangs, drug dealers, consumer fraud, and other violent acts. For instance, Assistant Attorney General Phil Figura investigates and prosecutes gang related activities in the western part of Virginia. http://www.oag.state.va.us/PRESS_RELEASES/NewsArchive/081406_Shenandoah_Anti_Gang_Initiative.html
    http://www.newsvirginian.com/wnv/news/local/article/man_to_serve_7_years_for_gang_charges/32860/
    The AG also handles all criminal appeals for the Commonwealth Attorneys. That is why every AG since Mary Sue Terry, except for Mark Early, served as a prosecutor and used that experience as a foundation for their campaigns. (Early’s Democrat opponent was not a prosecutor.)
    More importantly, the GOP has kept the AG’s office for the past 16 years b/c it has nominated former prosecutors, like Gilmore, Kilgore and McDonnell. I don’t understand why you wouldn’t want to nominate a former US Attorney like John Brownlee rather than a business lawyer like Foster or a patent attorney like Cuccinelli — niether of whom have ever prosecuted a defendant. The Dems have picked Steve Shannon who was a Fairfax County prosecutor for three years and, interestly, voted against Tim Kaine on the abolition of the Triggerman Rule (Cuccinelli was the only GOP memeber to vote to keep the Triggerman Rule). It seems like a pretty easy decision to go with the prosecutor if you can.

  4. It’s absolutely amazing that you guys seem to think that because someone investigates something, that makes them a “prosecutor”. Using you guys’ logic, every detective or investigator for every police department or sheriff’s office is a “prosecutor” because they investigate cases.

    And according to the Associated Press in 2005, “two-thirds of the attorney general’s work involves representing state agencies and officials in civil matters”[1] [emphasis mine].

    And can someone explain to me why Bob McDonnell’s very own Office of the Attorney General website lists “[c]onduct or assist criminal investigations and prosecutions in certain limited cases” [emphasis mine] as the eight bullet under their “duties and powers” list.[2]

    And you guys managed to find a single person out of a 336+ person office that has a dedicated prosecutorial position? Not to mention the fact that I can find more stories about him organizing a “Community Day” in Staunton than anything else. [3][4][5]

    And since you Brownlee supports don’t seem to know a single thing about law, let me explain this to you as simple as possible: appellate work is not prosecution. Ask any lawyer and he will tell you the same thing. You’re not putting on a show for the jury during an appeal, you have to prove your point to fellow lawyer on the Virginia Court of Appeals or Supreme Court, or the 4th Circuit Court of Appeals, or the SCOTUS.

    And you think maybe the success by Republicans in runs for the Attorney General position might have something to do with their support for the platform and ideals of the Republican Party, and not having been a prosecutor? After all, McDonnell was only an assistant Commonwealth’s Attorney for three years, and he beat Creigh Deeds, who was an elected Commonwealth’s Attorney for a whole term.

    And the reasons for Cuccinelli’s opposition for the change in the triggerman rule are well-documented and well-reasoned.[6]

    1. Larry O’Dell. “Virginia AG candidates reinforce law enforcement messages.” The Associated Press State & Local Wire. 5 Nov 2005: LexisNexis.
    2. http://www.oag.state.va.us/OUR_OFFICE/Role.html
    3. http://www.newsvirginian.com/wnv/news/local/article/staunton_ready_to_swing_into_action/28288/
    4. http://www.staunton.va.us/default.asp?pageID=CE989112-D3E3-450A-8833-267CAEFA189B
    5. http://www.andrewclem.com/Archives/Post.php?2008/09/28ct.html
    6. see http://www.imsurroundedbyidiots.com/2009/02/26/why-cant-john-brownlee-stop-lying-about-ken-cuccinelli/

  5. James says:

    Exactly! And what did McDonnell have that Deeds didn’t? Military service — just like Brownlee. Brownlee is the only candidate for AG with any military experience. Brownlee was an infantry soldier who is airborne and ranger qualified. He was also an Army JAG. Cuccinelli and Foster never served. Never!

    And as far as appellate work, only Brownlee has that experience as well. As US Attorney, Brownlee ran and led a criminal division, a civil division, and an appellate division. He also served as the principal legal advisor to over 20 federal agencies. Neither Foster nor Cuccinell have done anything close to that. Brownlee also personally prosecuted defendants (including capital murder cases), defended the government when sued, and argued cases before the federal appellate courts. When it comes to qualifications to be AG, there is simply no comparison between Brownlee and the others. He has been accuratly defined as the most qualified candidate to be AG in the last 50 years. Cuccinelli is a patent attorney with almost no litigation experience at all. Has Cuccinelli ever conducted a jury trial — civil or criminal — in either state or federal court?
    You may be rooting for Cuccinelli and you may even vote for him, but please do not attempt to elevate his lean record to that of Brownlee’s.

  6. It’s beyond disgusting that you Brownlee supporters can’t — or won’t — stop lying about Cuccinelli’s service as a United States Marine Corps officer.

    How much time has Brownlee spent working as a court-appointed attorney for people facing civil commitments in Virginia? If you want to talk about what the OAG does, maybe you should look-up about sex offenders being civilly committed so they can’t offend again (legislation that Cuccinelli helped to expand). What experience does Brownlee have in that regard?

    Name a single piece of legislation that Brownlee has written that has improved the safety of the citizens of Virginia. One of the purposes of the OAG is to provide legislators with ways to write laws that will pass constitutional muster (something McDonnell wasn’t so good at, see HB3202 of the 2006 Regular Session, and SB113 and HB633 of the 2008 Regular Session). How many times has Brownlee been involved in writing legislation?

  7. James says:

    Great point. Brownlee and Foster served on AG McDonnell’s Internet Safety Task Force.
    http://www.oag.state.va.us/InternetTaskForce/Task_Force_Members.html Brownlee played a mojor role in drafting the new state laws that imposed enhanced penalties for sex offenders. That included adding mandatory minimum sentences for repeat offenders. In fact, it is one of the few pieces of legislation that McDonnell talks about as he runs for Governor.
    BTW, lets talk about all that great legislation Cuccinelli passed this last term. Can you name anything other than a new license plate? Anything? Oh yes, he voted against repeal of the triggerman rule — and of course, he was the only Republican to vote with Tim kaine on this important issue.
    As far as Cuccinelli’s alleged Marine Corps service, Brownlee has repeatedy stated publically that he is the only military veteran running for AG — including in the debates. Has Cuccinelli ever challenged him? Has Cuccinelli ever stepped forward and said, “Now hold on a minute, I served too”? The Answer is NO! Cuccinelli remains silent because he is not a veteran and he never served. You may wish he served and you may want him to challenge Brownlee, but he won’t and he can’t.

  8. Do you mean the legislation that Cuccinelli sponsored that would have expanded the people that could represent people facing civil commitment hearings? Do you mean the legislation that Cuccinelli sponsored that would have allowed a court to order mandatory outpatient treatment following involuntary admission, so people continue to receive mental health treatment after they are released? Do you mean the legislation that Cuccinelli co-sponsored that would have given short-term disability payments to State Police personnel that were injured in the line of duty? Do you mean the constitutional amendment that he co-sponsored that would have given disabled veterans a property tax exemption?

    As for the continued digs on Cuccinelli’s Marine Corp service: You Brownlee supporters are absolute scum and I can’t wait until Brownlee gets shown the door, just like he got shown the door when he wanted to be a federal judge.

  9. You can fool all of the people some of the time, and you can fool some of the people all of the time, but you can’t fool all the people all the time and you can’t whitewash history when there’s something like LexisNexis:

    U.S. Attorney John Brownlee’s bid to become a federal judge, considered by some to be on a rapid ascent, has run into turbulence.

    Brownlee received lukewarm endorsements this week from two bar associations — and no backing at all from another three — as questions surfaced during the judicial screening process about his prosecutorial discretion and other “credible adverse information.”

    In a 6-5 vote, the Virginia State Bar’s judicial nomination committee found Brownlee to be qualified. It was the only close vote as the committee deemed six candidates qualified and another five highly qualified for federal judgeships in Richmond and Alexandria.

    “The committee notes that substantial concerns arose from significant and credible adverse information” obtained about Brownlee, a report from the state bar read. But because the bar was unable to fully investigate those concerns before the deadline for recommendations, “the committee is unable to opine as to Mr. Brownlee’s integrity, temperament and impartiality,” the report stated.

    The report does not explain what the “adverse information” is, and state bar executive director Thomas Edmonds declined to elaborate.

    “The documents speak for themselves and they are carefully worded,” Edmonds said. “Obviously, the vote and the comments reflect some concern.”

    Another concern raised by the bar dealt with the extent of Brownlee’s courtroom experience, and discrepancies between what he said about that qualification in a written application to the bar and in a later interview with the nomination committee.

    Brownlee, who has overseen federal prosecutions in the Roanoke-based Western District of Virginia since 2001, declined to comment Thursday.

    Several cases during his tenure have created considerable controversy, including the fraud prosecution of former National D-Day Memorial Foundation president Richard Burrow, which ended in two hung juries.

    Also, the case of pain specialist Dr. Cecil Knox, accused of health fraud and illegal distribution of prescription painkillers, devolved from a sweeping indictment on hundreds of charges to just a few convictions.

    The Virginia Women Attorneys Association, another bar group asked to rank judicial candidates, also raised concerns. In a report sent Tuesday to U.S. Sens. John Warner and Jim Webb, the VWAA noted that Brownlee was the only one of 13 candidates to receive unsolicited letters in opposition to his becoming a judge and none in support of his bid.

    […]

    Also this week, the Virginia Bar Association, the Virginia Defense Attorneys Association and the Virginia Trial Lawyers Association released names of candidates they found to be qualified. Brownlee’s name was not on either list.1

    Webb and [John] Warner were responsible for recommending names to the President about who should be nominated. And isn’t Brownlee bestest buds with Warner? That should tell you something right there.

    And what does that comment say? NLS simply said that he didn’t hear Cuccinelli talk that much about it. And have you ever considered that maybe Cuccinelli doesn’t consider his service as notable as those that served years in the military?

    But of course not, you folks are all insane and I’m not going to bother replying to another of your inane comments.

    1. Laurence Hammack. “Federal Fast Track Slows for Brownlee.” The Roanoke Times. 1 Mar 2007. A1: LexisNexis.

  10. James says:

    Oh, I thought you meant legislation that was actually enacted. Anyone, of course, can sponsor anything. I thought you were talking about leadership qualities. Don’t despair, however, Cuccinelli did provide great leadership in making sure that Virgnians were subjected to abuser fees and $2.5 billion in new taxes with his tie breaking vote for HB3202. http://www.cuccinelli.com/Oleszek%20shocks%20Fairfax%20Senator;%20opposes%20fines%207.20.07.pdf
    I haven’t heard him taking credit for that bill in his AG race. Hmmmm, I wonder why? Maybe he votes for higher taxes when he is running in NOVA and now he is “Mr. No New Taxes” in a GOP nomination. Pitiful.
    As for his fake military service, I believe it was Loundon Insider that noticed that Cuccinelli had lied in 2002 when he claimed to be a veteran in his senate race. I think NLS heard it as well. Don’t you think your candidate holds some responsibility for that mess? And, if Cuccinelli is the nominee, who are you going to blame when the Dems demand he release his military records and call him out for lying about being a veteran?

  11. Cuccinelli made a mistake, which he has admitted was a mistake, after he was one of the leaders in opposing the regional gas tax increases which was proposed in a referendum by Governor Warner.

    And this doesn’t include stuff from the 2009 session:

    While in the General Assembly, this is just a small sample of legislation that Ken Cuccinelli has been involved with:

    2003 session: Co-Patron (Virginia’s term for co-sponsorship of legislation) on two resolutions remembering the late Troopers Charles Mark Cosslett (HJ 895) and Michael T. Blanton (HJ 899), both of whom were killed in the line of duty. Co-Patron of legislation that expanded the definition of “sexually violent predators” and allowed for easier civil commitment procedures (SB 1149). Co-Patron of legislation that created the Child Pornography Images Registry to allow for easier prosecution of child pornography cases; also increased the punishment for child pornography cases (SB 1153). Co-Patron of legislation requiring state buildings to have Code Adam procedures in place; created the Virginia Amber Alert Plan (SB 1204).

    2005 session: Chief Patron of legislation that expanded the requirements of overtime compensation for law enforcement officers (SB 873). Co-Patron of legislation that would have “[p]rovide[d] for funding of continued health insurance and death benefit payments for eligible state employees under the Line of Duty Act”, which covers law enforcement officers (SB 878).

    2006 session: Chief Patron of legislation that would have ensured that state law enforcement officers received the same expanded overtime compensation requirements that were passed in 2003 (SB 657). Chief Patron of legislation that expanded the definition of “sexually violent predators” and expanded the ability of the Office of the Attorney General to access child protective services records (SB 694). This piece of legislation was incorporated into a larger bill, SB 559, which significantly revamped the state’s Sex Offender Registry, which Cuccinelli was also a Co-Patron of. Co-Patron of legislation that increased penalties for people that commit sex crimes when they should be on the Virginia Sex Offender Registry, but haven’t registered (HB 561), which was incorporated into HB 984. Chief Patron of legislation that would have made “several changes in the process and procedures afforded to [law enforcement] officers under the procedural guarantee act, including right to counsel, notice of allegations, and a prohibition against a complaining officer being in charge of an investigation” (SB 697). Co-Patron of a resolution commending the Virginia Capitol Police and its head, Colonel George B. Mason, Jr. (SJ 296). Co-Patron of a resolution celebrating the life of Officer Seneca B. Darden of the Norfolk Police Department, who was killed in the line of duty (SJ 5035).

    2007 session: Again the Chief Patron of legislation that would have made “several changes in the process and procedures afforded to [law enforcement] officers under the procedural guarantee act, including right to counsel, notice of allegations, and a prohibition against a complaining officer being in charge of an investigation” (SB 776).

    2008 session: Co-Patron of legislation that would have given the expanded overtime compensation requirements that were passed in 2003 to employees of the Virginia State Police (SB 269). Chief Patron of SB 76 and Co-Patron of SB 355 that would have made “several changes in the process and procedures afforded to [law enforcement] officers under the procedural guarantee act, including right to counsel, notice of allegations, and a prohibition against a complaining officer being in charge of an investigation”.

    http://www.imsurroundedbyidiots.com/2009/02/26/why-cant-john-brownlee-stop-lying-about-ken-cuccinelli/

    Wow, you calling a commissioned Marine Corps officer a “fake”. Absolutely amazing. I don’t care what that hack “Loudoun Insider” says, and for the record a Google Search of NLS shows nothing.

    Got a simple question: Why isn’t John Brownlee a federal judge right now?

  12. James says:

    Because the Virginia State Bar judicial selection committee recommended and got a Democrat. Even Cuccinelli thought he was a lame pick. http://news.oldva.org/blogroll/cuccinelli-compass-re-more-on-judges-a-va-company-unveiled/

    As far as NLS is concerned, check out post #11. http://tooconservative.com/?p=3191 You see, the problem is that Cuccinelli was playing fast and loose with his resume in 2002 — never dreaming it would come back to haunt him many years later. If he truly was a “Marine Officer” as you claim, why doesn’t he say anything about it? Can you give any rational explanation for his silence on such an important issue? More importantly, do you believe the Dems will not make a real issue over it? What will he say then? Don’t you think we should see his records before we put him on the ticket with McDonnell and Bolling? Do you trust him that much to walk into this blindly?

  13. Sherri says:

    @ Timothy Watson….
    I like the way you think. I am currenty looking into Virginia law and was wondering if you could help me dicepher a few things.

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