The results of Virginia’s 2021 general election could have significant ramifications for local efforts to seek alternatives to jail and other criminal justice reforms, Fairfax County Commonwealth’s Attorney Steve Descano says.
Descano, a Democrat, addressed expectations that his agenda will clash with that of Republican Attorney General-elect Jason Miyares in an online event on Tuesday (Nov. 16) hosted by the McLean chapter of the American Association of University Women, which seeks to promote equity and education for women and girls.
A day after defeating incumbent Mark Herring, who was seeking a third consecutive term as Virginia’s top legal officer, Miyares told reporters on Nov. 3 that he plans to introduce a bill that would let the state intervene in local cases.
“This legislation was inspired by a child rape case in Fairfax County, where a defendant was charged with repeatedly raping and molesting a 5-year-old child and was eligible for a life sentence,” Miyares said in a statement to FFXnow, pointing to a case involving Oscar R. Zaldivar, 53, who received a 17-year sentence through a plea deal.
Despite objections from the families involved, Descano’s office defended the sentence in statements to media after the September hearing as longer than what 75% of defendants in Virginia face for the same offenses.
Prosecutors typically get discretion to determine when to pursue a case based on whether the available evidence is sufficient and other factors. Descano said Miyares’s proposal would turn the legal system on its head.
“He wants the police to be able to sideline a prosecutor who’s inconvenient for them at anytime,” Descano said, adding that Fairfax County is fortunate to have a professionalized police force.
Miyares countered that he would get guidance from Commonwealth’s Attorneys to advocate for a bill that would “invite” the attorney general to prosecute child rape or violent crime cases “when the local prosecutor refuses to prosecute.”
The clash between Descano and Miyares presages the uphill battle that Fairfax County’s mostly Democratic elected officials will likely face over the next few years in trying to work with the n0w-Republican-led state government.
The county started a veterans court in 2015 to provide support systems for service members faced with charges. It then launched a Diversion First initiative in 2016 that offers rehabilitation over incarceration for certain nonviolent offenses. Since then, the county has also created specialized court dockets focused on the needs of people with drug addiction and mental health issues.
According to Census data compiled by the nonprofit The Marshall Project, Fairfax County’s jail population has declined significantly over the past two decades, from 3,749 people in 2000 to 1,207 people in 2010 and 667 people in 2020.
Elected in 2019 amid a progressive surge in Northern Virginia, Descano has implemented many of his pledged reforms, including eliminating cash bail, not holding suspects on nonviolent charges when they aren’t deemed a danger to the community, and enabling prosecutors to take “community values” into account instead of deferring to judges.
He said on Tuesday that the changes are intended to improve fairness in prosecutions.
The Office of the Commonwealth’s Attorney also has a data director who is working with researchers from American University and other partners to create a public dashboard with information on how it handles different cases.
Descano says the data will allow for analysis of prosecutors’ decisions, which will help avoid problems, such as unfair treatment based on gender or race.
When asked about the data effort by Aroona Borpujari, a statistician who watched the event, Descano replied that his office will release the data when they have enough of a sample size.
“It’s our pledge that we’re going to be transparent,” he said, describing the office as previously being in the Stone Age.
Video of an encounter between Fairfax County’s top prosecutor and security personnel at the county courthouse does not appear to be consistent with some of the allegations leveled in a Fairfax County Sheriff’s Office incident report.
The report claims Fairfax County Commonwealth’s Attorney Steve Descano and a colleague lost their tempers during a courthouse security screening. According to the Sept. 30 report, Descano and Chief Deputy Commonwealth Attorney Kyle Manikas questioned and cursed at security officers when directed to go through a metal detector upon entering the Fairfax County Courthouse at 9:37 a.m. on Sept. 28.
But the two main triggers that the report says prompted Descano and Manikas to display “disrespect” and “unprofessional conduct” toward the security guards are absent from the video, notes a courthouse source who has also seen the footage viewed by FFXnow.
The report states that, after seeing two law enforcement officers in full uniform bypass the checkpoint and being told by the security guards that uniformed law enforcement officers were exempt from the mandatory security screening, Descano responded by saying “That’s bullshit,” “Don’t you know who I am?”, and “I’m the top law enforcement officer in Fairfax County.”
While no audio was recorded, courthouse security camera footage provided by the sheriff’s office does not show any uniformed law enforcement officers coming into the building and passing the security checkpoint.
Around the time Descano arrives, a sheriff’s deputy and a uniformed man wearing a vest emblazoned with the logo for the security company Brink’s walk by the checkpoint, but they are leaving the courthouse, not entering.
The sheriff’s office report, which is signed by both a deputy and a supervisor, states that the two security guards gave statements and that facility security “provided a video to corroborate the visual part of the incident.”
“We do not have any comments about the report,” the sheriff’s office said when asked about the discrepancies between its incident report and the security camera video.
The report also says Manikas “was visibly upset about being screened and kept saying ‘This is f**king bulls**t.'”
According to the report, Manikas also became upset when told that the x-ray machine detected a knife in his lunch bag and that an additional search of the bag was needed, claiming that there was no knife in the bag.
After a security officer “rotated the screen of the x-ray around to show CDCA Kyle Manikas the image he was looking at,” the report claims the prosecutor stated, “This is f**king bulls**t, I know you are doing your job, but this is bulls**t.” A search of the bag revealed a butter knife.
In the video, however, when one of the security officers gestures that he needs to look through Manikas’s backpack, Manikas unzips the bag and opens what appears to be a lunch box without any visible hesitation. The officer doesn’t show Manikas a screen, and his side of the x-ray machine is inaccessible to visitors, blocked by the tables where people collect their belongings after getting screened.
“As the full video reflects, the report paints an inconsistent picture of what actually occurred,” Benjamin Shnider, chief of staff for the Fairfax County Office of the Commonwealth’s Attorney, said in a statement to FFXnow.
Descano and Manikas were not available to comment directly.
Descano has become a target of conservatives since he was one of three Northern Virginia prosecutors elected in 2019 on criminal justice reform platforms, including pledges to stop prosecuting marijuana possession, end the use of cash-bail and the death penalty, and reduce mass incarceration.
Like his reform-minded counterparts in Arlington and Loudoun, Descano is currently facing a recall effort spearheaded by Virginians for Safe Communities, a group led by Republican operatives and funded by undisclosed donors.
A separate group called Stand Up Virginia launched its own recall campaign against Descano in April.
An incident report from the Fairfax County Sheriff’s Office alleges that two of the county’s top prosecutors clashed with security guards when asked to undergo a security screening to enter the Fairfax County Courthouse.
The sheriff’s office states in the Sept. 28 incident report that Fairfax County Commonwealth’s Attorney Steve Descano and his chief deputy displayed “disrespect and unprofessionalism” that was “unsuited for an officer of the court.”
When asked to go through metal detectors at the courthouse at around 9:37 a.m. that day, Descano reportedly asked why two uniformed law enforcement officers didn’t go through security. When told by two security officers that law enforcement was exempt, Descano said “That’s bullshit!” and then asked “Don’t you know who I am? I’m the top law enforcement officer in the county,” according to the incident report.
The courthouse routinely requires security screening of all employees and attorneys at the request of the Courthouse Security Committee, which is chaired by Chief Judge Penny Azcarate. Descano reportedly stated that he was exempt from the security screening because of his position.
Descano’s office declined to comment on the incident report. FFXnow has not viewed security footage that the incident report purports corroborates the “visual part of the incident.”
It’s unclear whether Descano and his chief deputy were aware of a new screening policy that appears to have contributed to the verbal altercation.
Under the new security policy, which began on Sept. 1, on randomly selected days, every person entering the courthouse must take part in security screenings.
This requires all individuals to walk through a magnetometer and for all bags, briefcases, purses, parcels, and electronic devices to be screened by an X-ray machine, according to the county’s website, which did not provide information about the new policy until yesterday morning (Wednesday).
A Fairfax County Circuit Court clerk declined to comment on all of FFXnow’s questions, including why the new policy was put in place, why uniformed law enforcement officers are exempt, and how it differs from the court’s previous procedures, including an option that allows attorneys to bypass security screenings.
According to the report, Kyle Manikas, the chief deputy commonwealth’s attorney, took issue with a security search of his lunch bag when a knife was detected in the metal detector screening.
“This is fucking bullshit, I know you are doing your job, but this is bullshit,” Manikas reportedly said, as quoted in the incident report. He was described as “physically upset.”
A butter knife was found in the bag.
The incident report concluded that the security officers experienced “disrespect, curse and abuse, and unprofessional conduct.”
Angela Woolsey contributed to this report. Photo via Google Maps