VIRGINIA BEACH — Police in Virginia Beach used fake documents they represented as coming from the state forensic department to get either cooperation or confessions, according to a statement released on Wednesday, Jan. 12, by the outgoing state attorney general.
The tactic was used at least five times during interrogations between March 2016 and February 2020, according to the Office of Civil Rights under outgoing Attorney General Mark Herring, who is scheduled to leave office on Saturday, Jan. 15.
The practice was discovered when a prosecutor asked the state forensic science department “to provide a certified copy of a forged document [the department] never created or knew about,” according to the announcement.
One false document was even filed with court records in a case in Virginia Beach in 2020, though Macie Allen, a spokesperson for the commonwealth’s attorney’s office, said the office notified the court when they learned of this and it did not clearly affect the case, which is ongoing.
“Nothing has changed in terms of cases we’re currently prosecuting,” Allen said Thursday, Jan. 13.
Independent of the attorney general’s review, the city police department changed its policies about the use of such tactics, according to a statement released by the police department. The Independent News reviewed what appear to be updated department policies about the use of “ruses” available at the city website.
“A ruse that replicates, alters or uses any certificate, letterhead or format belonging to an agency outside the Virginia Beach Police Department is not permissible during any part of an investigation, including during interviews and /or interrogations,” says one general order about constitutional issues.
In a statement released on Wednesday, Jan. 12, as a “clarification” to what has been disclosed about the issue, the police department said it opened an inquiry into the practice in April 2021 after the state forensic department and Virginia’s public safety secretary notified Police Chief Paul Neudigate, who did not respond to an emailed interview request sent by The Independent News early Thursday, Jan. 13.
The department determined the use of what it called a “replica” certificate of analysis happened. Two days after learning of the issue, Neudigate prohibited the use of “inauthentic replica documents and initiated an internal investigation,” according to the statement, and opened an investigation that found only five instances among thousands of cases in a five-year timeframe ending in 2020.
“This was an extremely troubling and potentially unconstitutional tactic that abused the name of the commonwealth to try to coerce confessions,” Herring said in a statement released with a copy of a conciliation agreement signed by the city and state.
Herring said he appreciated that Beach police put a stop to the practice, but he called it “a tactic that should never have been used.”
Herring’s office entered into an agreement with the city over the issue. A copy of the agreement that was provided to reporters was signed on Wednesday, Jan. 12.
The police said the practice in interrogations has been found to be constitutional by the courts. That said, the department also noted that it “took immediate and proactive steps to address this very limited interrogation technique which they felt, though legal, was not in the spirit of what the community expects of their police department.”
In one instance in 2020, a fabricated forensics report used to seek a confession in a sex crime case ended up submitted to the court as evidence, which, when discovered, forced the commonwealth’s attorney’s office to walk back the document.
The Independent News does not identify victims of sex crimes, and the newspaper is not naming the person accused in the case because he is related to the victim, a minor. The case originated in Juvenile & Domestic Relations Court, and a hearing in the matter is scheduled for next month in Circuit Court.
Assistant Commonwealth’s Attorney Paula Bruns alerted the court and defense attorneys that a copy of a certificate of analysis that had been provided to defense counsel was not a true certificate of analysis, court records reviewed by The Independent News show.
In a Sept. 22, 2020, letter to the defendant’s attorney, Bruns wrote the certificate of analysis was filed mistakenly and that the information had been included in a summary of facts in a previous bond hearing.
“Therefore, I want to make clear the true nature of the report as an investigative tool, not a valid certificate of analysis, and make the court aware,” Bruns wrote.
In a filing in May 2020, the commonwealth had informed the court that it intended to use the analysis as evidence during a June 2020 hearing.
The report at issue appears on letterhead showing the state seal and marked “Department of Forensic Science,” according to a copy filed in Juvenile & Domestic Relations Court. The false report – which is dated Jan. 27, 2020, and addressed to an investigator – purports to show DNA evidence that appears to connect the defendant to the victim, and it shows a signature of an alleged “forensic scientist” and “latent examiner.”
According to Allen, the spokesperson for the commonwealth’s attorney, the certificate was mentioned during a bond hearing in July 2020, and it was filed with the court but not entered into evidence during the hearing.
The prosecutor learned the certificate was an investigative tool from police on Sept. 22, 2020, and immediately notified the court and defense counsel in writing, according to Allen. The defendant was “then afforded another bond hearing,” Allen wrote in an email. In a Sept. 24, 2020, order filed in the case, the revelation of the fake was listed as part of “changed circumstances” that led to the defendant getting the new bond hearing.
“In all prior bond hearings, the court believed due to a submitted certificate of analysis (by the CWA), which the CWA believed to be real but which was fabricated by the police in order to elicit a confession,” the order says. “They asked him to explain in the interview why there was a certificate proving they had found DNA. … CWA proffered that police advised her that there was a DNA ruse … ”
The defendant was granted $10,000 secured bond with conditions to avoid the victim and children under 18, according to the order, which was signed by Judge Deborah Bryan.
The defendant had entered the city jail in January 2020 and was bonded out in early October of that year, according to the Virginia Beach Sheriff’s Office. That was few days after the bond hearing in which the judge referenced the fabricated information that had been presented to the court.
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