The Use of Special Prosecutors

The use of a Special Prosecutor is a situation contemplated by the Virginia General Assembly and codified into law. This structure is in place should a prosecutor be presented with a situation where a conflict of interest exists and the State Bar's Rules of Professional Responsibility, which govern attorney conduct, may dictate action. The conflicts giving rise to an assignment can be many: familial, personal or professional, but they also include perceived conflicts.

Using Special Prosecutors is a regular occurrence, most often among neighboring jurisdictions. In fact, Loudoun County has handled numerous matters for:

  • Arlington
  • Clarke
  • Fairfax
  • Fauquier
  • Frederick
  • Prince William
  • Winchester

These situations are typically only publicized in the media during campaign seasons when political opponents regularly make criminal accusations against their rivals in an effort to gain an advantage in the election. Regardless of how the complaint originates, the legal analysis and process for assignment is the same. The Attorney for the Commonwealth makes the request by filing a Motion with the Circuit Court pursuant to Virginia Code Section 19.2-155. If, based on the Motion, a Judge deems the request appropriate and consistent with the statute, a Commonwealth's Attorney from another jurisdiction is assigned the case. The Judge does not review the complaint or the merits of any allegation.


The conflicts that arise and relate to local officials and candidates for office are not due to political party affiliation, but rather due to personal or professional relationships. The Constitution of Virginia establishes the Commonwealth's Attorney and the Sheriff as elected offices, which sets the stage since complaints are often directed to either office for investigation. Engaging an outside agency to address these complaints is in no way a reflection of an inability to fairly handle the complaint, but rather a step taken to avoid the appearance of a biased evaluator. It also says nothing about the merit of any complaint, the determination of which rests solely with the Special Prosecutor.

The September 24, 2015, conviction in Arlington by Loudoun County prosecutors of Michael Gardner, a prominent local political figure and husband of the former Mayor of Falls Church, is a prime example. Was the Arlington Commonwealth's Attorney's Office incapable of handling the prosecution? Absolutely not. However, with personal, professional and / or political affiliations existing, what would be the perception and what would be the accusation had Mr. Gardner not been convicted, or sentenced to something less than people thought he deserved for molesting four young girls? What would the perception be if he had been a public critic of the Commonwealth's Attorney, or an official of an opposing political party, and thought treated too harshly?

What is paramount is that the ability to protect the public's confidence in the judicial system and the investigative process be preserved and the use of a Special Prosecutor is a tool that aides in ensuring that protection.


A portion of this article was printed in the September 30, 2015 edition of the Loudoun Times-Mirror


Nothing in this article should be construed as rendering legal advice. For legal opinions, please consult with a private attorney.