Editor's note: Comments by a representative from the National Association of Police Organizations were included to this online version. Bill Johnson was unable to make the initial print deadline, so the Star-Exponent added them to the online version. 

A University of Virginia law professor said it would be “unusual” for a court to appoint a special prosecutor to handle a specific officer’s criminal cases just because a prosecutor refuses to proceed with any of his cases.

Responding to the Star-Exponent’s request, Darryl Brown, who teaches criminal law, criminal adjudication and evidence at UVa School of Law, shared his legal perspective via email Monday regarding the town of Culpeper’s civil lawsuit filed June 17 against Culpeper’s Commonwealth Attorney Megan Frederick, who refuses to prosecute any of town officer Matthew Haymaker’s cases.

“I can only speculate that the prosecutor must know of some very disturbing evidence about the officer’s conduct,” said Brown, who earned his law degree from UVa in 1990 before becoming a professor at his alma mater in 1998 and joining UVa Law School in 2004.

“[But] why that same evidence is not disturbing to the police chief and [town] officials is very puzzling. I don’t know who’s right, of course. But to have such a sharp disagreement about whether an officer’s conduct is appropriate is unusual.”

Courts records show, the commonwealth received information that a “human relations and improper documentation complaint was sustained against detective M.J. Haymaker and has concerns regarding allegations of improper investigatory methods specifically involving detective M.J. Haymaker.”

Following up on a complaint against Haymaker earlier this year, Frederick filed a motion in Culpeper County Circuit Court in March requesting the results of Haymaker’s internal affairs investigation.

On March 17, Judge Susan Whitlock denied the commonwealth’s request.

In this latest legal battle, the town’s lawsuit requests the circuit court grant its wish to hire a special prosecutor to handle Haymaker’s cases and have the money come from the commonwealth’s attorney’s budget.

“Generally, courts are extremely deferential to prosecutors’ decisions about whether to prosecute or not prosecute in any particular case,” Brown said. “It’s virtually unheard of for a court to order a prosecutor to charge in a particular case, or to reprimand a prosecutor for not prosecuting.”

According to town attorney Martin Crim, after the town completed its internal investigation of a second complaint against Haymaker, the town notified Frederick on Feb. 13 that “nothing in the town’s findings required Haymaker to be put on the Brady list.”

The Brady Rule, derived from a landmark Supreme Court case in 1963, requires prosecutors to turn over exculpatory evidence to the defense.

In a letter issued to the Culpeper Chief of Police Chris Jenkins on March 26, Frederick informed the force that her office would no longer prosecute Haymaker’s cases.

Two days prior, the commonwealth decided not to prosecute Steven M. Wright for a July 2014 drug charge, according to court records. Haymaker was the lead investigator on the Wright case.

“This office strives to embrace the highest standards of professional and personal conduct. As prosecutors, we are unanimous in our determination that it is not in the commonwealth’s best interest to utilize detective Haymaker as a witness,” Frederick wrote.

Court records also show, the Virginia State Police also rescinded Haymaker’s special state police authority permanently removing him from the Blue Ridge Narcotics and Gang Task Force based on Frederick’s March 26 letter to the Culpeper police chief.

On May 15, the Culpeper Town Council intervened, asking Frederick to reconsider her decision.

“While we respect your prosecutorial discretion, you have a legal duty to prosecute cases and do not have the authority to exclude an officer from being a witness unless that officer is subject to impeachment on the bases of credibility, which, is not the case here,” the town council wrote.

Brown said while some disagreements aren’t so strange, this particular situation is quite puzzling.

“The prosecutor and police are independent of each other, even though they usually get along well and we think of them as working closely together,” explained Brown. “I have to say that, without knowing any details, I’m impressed that Commonwealth Attorney Frederick would take such a strong and public stand on this, despite the harsh criticism of the police and [town] officials and, perhaps, some of the public who voted her into office. It’s such a bold act I have to believe that she really believes she knows about some disturbing police conduct that is not being addressed by the department or the [town].”

In the end, Brown added that it’s also “very unusual for a prosecutor to publicly and categorically refuse to prosecute cases based on the involvement of a particular police officer.

“What’s so odd in this Culpeper case is that the police chief and the [town] are standing firmly behind the officer, while the commonwealth’s attorney has apparently concluded the officer is so untrustworthy that she can’t trust any evidence the officer is connected with,” assessed Brown.

Bill Johnson, executive director for the National Association of Police Organizations, said he thinks it's important to point out that, as professor Brown notes, that it is mere speculation to guess what upset the prosecutor about detective Haymaker. 

"Given that not only the local police department, but the town council as well, support the detective, it seems it can't be any sort of gravely serious matter. It seems more likely to me that the prosecutor may be offended by something much more minor, such as methods of interrogating a suspect that are perfectly legal, but that seem rude, or even something as commonplace as coarse language or an inappropriate joke," suggested Johnson. "Regardless of the underlying actions that have led the prosecutor to take her position, NAPO thinks that her office should be at least equally concerned about dragging a detective's reputation through the mud and threatening his livelihood, as it appears to be with a persnickety interpretation of the Brady rule."

Asked his opinion about this situation, Jenkins said Tuesday that he would like to resolve this conflict immediately.

“We just want to be able to quickly move ahead,” Jenkins said. “I think this hampers the whole community. We are allotted 42 slots for law enforcement positions so all of our officers are authorized to make arrests.”

“We want this resolved as soon as [possible],” concluded Jenkins.

Reached by phone Tuesday, Frederick said, “I look forward to my attorneys resolving this quickly.”

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