Law firm’s review finds Va. investigator was ‘most likely biased’ in Parole Board probe

By: - June 14, 2021 3:31 pm

The Virginia Office of the State Inspector General refused to release details of an investigation into the Virginia Parole Board in 2020. Documents provided to the Mercury were almost entirely redacted. The investigator who later leaked documents was fired.

A 65-page report on how Virginia’s watchdog agency investigated a high-profile parole case last year concluded that the lead investigator was “most likely biased” and Gov. Ralph Northam’s office did not interfere with the probe.

The law firm that conducted the outside review also found Attorney General Mark Herring’s office helped edit the investigator’s draft findings and suggested redacting almost everything the investigator found.

The report, delivered to state leaders Monday by Nixon Peabody LLP, sheds new light on the Office of the Inspector General’s role in the furor over the Parole Board’s decision to grant parole to Vincent Martin, who was released from incarceration last June after serving more than 40 years for the murder of a Richmond police officer in 1979. 

The release sparked outrage among law enforcement groups, and the law firm’s report says Jennifer Moschetti, the OSIG investigator tapped to look into complaints about the process, appeared sympathetic to those who opposed Martin’s parole. 

When OSIG officials were conducting initial discussions of whether Martin’s parole should even be investigated by their office, which typically handles more minor cases of government waste and abuse, Moschetti voiced disapproval of how former Parole Board chairwoman Adrianne Bennett “lashed out” at her law enforcement critics.

“To me, they are providing evidence that this person should not be released and it should be reviewed,” Moschetti wrote to OSIG’s investigations manager. “To me, her lashing out sounded personal that the LE community disagreed with her and the board. VPB info is not FOIAable, so the only way to know if policies and procedures were followed would be to investigate/audit. Or do we just have to assume they all were? UGGHHHH.”

In another example of bias cited by the law firm, Moschetti replied positively to a family member of the slain officer who had notified Moschetti that the Parole Board had put a 30-day hold on Martin’s release.

“I am so glad you received this information this morning,” Moschetti wrote in an email. “I had not heard.”

Nixon Peabody concluded that Moschetti’s personal opinions “likely had an impact” on the tone of OSIG’s final report, but the firm made “no determination” about whether there was anything inaccurate about that report’s conclusions. 

“The most troubling aspect of our review was OSIG’s failure to identify apparent bias in the lead investigator, which likely impacted OSIG’s investigation and report,” the law firm wrote. “The early indicators of bias should have been recognized and immediately addressed. We will likely never know the extent, to which, the lead investigator’s likely bias impacted the OSIG Parole Board Report. Going forward, mandatory training on bias awareness and improvements to internal controls should be implemented, in order to ensure complete objectivity.”

A lawyer representing Moschetti called Nixon Peabody’s assertion she was biased “false, defamatory, and a baseless attack on Ms. Moschetti’s integrity.”

“Ms. Moschetti took her job at the Office of the Inspector General very seriously, and she performed her job without bias, prejudice, or partiality — either for or against anyone, anything, or any agenda,” said attorney Richard Hawkins.

The OSIG report found the Parole Board had violated state law and its own procedures by failing to notify the Richmond prosecutor’s office of Martin’s release within 21 days of his initial release date and failing to “endeavor diligently” to contact the slain police officer’s relatives as required by state law. But that report drew pushback from the Parole Board and the governor’s office, who argued it was shoddy work that cast an undue cloud on the release of a model prisoner.

Earlier this year, the General Assembly budgeted $250,000 for a third-party review of the situation. Nixon Peabody, a global law firm without strong Virginia ties, was later hired to perform that work, a hiring decision Republicans criticized as driven entirely by Democrats that would lead to a Democratic-friendly conclusion.

“Expending $250,000 of taxpayer funds to dress up the administration’s defensive and preposterous talking points does not strike me as a good value,” Sen. Mark Obenshain, R-Rockingham, said in a statement released Monday by the Senate GOP.

Sen. Mark Obenshain, R-Rockingham, decries a budget amendment paying for a third-party investigation of the Inspector General Office, during the floor session of the Senate inside the Science Museum where the Virginia Senate is meeting during the veto session in Richmond, VA Tuesday, April 7, 2021. (Pool photo by Bob Brown/ Richmond Times-Dispatch)

The law firm’s report found other OSIG officials occasionally had to steer the investigation away from the merits of the decision to release Martin and back toward its main focus: whether the Parole Board had or hadn’t followed the rules. Despite numerous rounds of revisions to draft reports on the Martin case, one of which was leaked earlier this year, Nixon Peabody said information in earlier versions was dropped because it couldn’t be substantiated, not because of top-down political interference.

Moschetti was ultimately fired from her OSIG job after unauthorized leaks of internal OSIG documents rekindled the controversy earlier this year. With the help of a Republican lawyer, she filed a lawsuit seeking whistleblower protection, but she was terminated before that suit could be heard by a judge.

In a statement, Northam’s office said the law firm’s findings back up its assertions that Moschetti was biased and failed to take a clear-eyed look at laws and policies governing Parole Board decisions, which are made almost entirely in secret due to a broad exemption from Virginia’s transparency laws.

For OSIG to operate as intended and maintain the public trust, it’s vital that investigators do their work in an impartial manner, without bias toward a conclusion, and that information presented in public reports is valid and verified,” Northam said. “This report shows that clearly did not happen in this case, and I expect OSIG to address its procedures and its training so that we can all trust in the truth and quality of the work it produces.” 

In a statement, an OSIG spokeswoman said the agency appreciates the recommendations on how it can improve.

“OSIG will make updates and changes where necessary to continue its practices of efficiency and effectiveness and to follow its core values of integrity, trust and ethical behaviors,” said OSIG spokeswoman Kate Hourin.

Northam also said the law firm’s review verified his office’s insistence it had no knowledge of OSIG’s draft reports on the matter and did not see the final report until it’s release was already imminent. 

“This report clearly repudiates unsubstantiated allegations repeatedly made by some legislators,” Northam said, referring to Republican leaders who have accused his administration of a coverup.

The Nixon Peabody report found that Northam Chief of Staff Clark Mercer “occasionally communicated with [Inspector General Michael Westfall] about the status of the investigation” but didn’t appear to have any impact on the “substance of the investigation or OSIG’s findings.” The firm found that another Northam administration official, former public safety deputy Nicky Zamostny, “occasionally communicated” with current Parole Board Chairwoman Tonya Chapman about the “investigation’s progress” but did not influence it in a meaningful way.

Clark Mercer, chief of staff to Gov. Ralph Northam, discusses an investigation into the Virginia Parole Board at a news conference in August. (Ned Oliver/Virginia Mercury)

Zamostny and Public Safety Secretary Brian Moran appeared to have a more active role in Chapman’s decision to claim the public-records exemption that resulted in the OSIG report being completely redacted before it was released to media outlets. The Nixon Peabody report said Moran and Zamostny asked Chapman “whether she had communicated her concerns about the FOIA-exempt information in the report to OSIG.”

“Neither, however, played any part in preparing the redacted version of the OSIG Parole Board Report,” the law firm’s report says.

Around the same time, Northam officials insisted they wanted more of the OSIG report to become public, though they declined to release an unredacted copy themselves and criticized Republican leaders who did.

During its review, Nixon Peabody unearthed an email suggesting it was Assistant Attorney General Michael Jagels who advised OSIG on its Parole Board investigation and suggested blacking out almost the entire report on Martin’s release.

“I believe Jagels had suggested redacting everything after the first sentence of the entire report,” Deputy Inspector General Corrine Louden said. “Also the conclusion should just read ‘The allegations…REDACTED…are substantiated.’”

In a statement, House Minority Leader Todd Gilbert, R-Shenandoah, said the Nixon Peabody report confirmed the GOP’s suspicions the review was narrowly tailored to find fault with Moschetti instead of taking a comprehensive look at the Parole Board’s actions. Several other examples have been reported, mainly through other leaked OSIG reports the agency and the Northam administration did not release publicly, of the Parole Board failing to give proper notifications to victims and prosecutors as it tried to speed up the release of certain inmates to clear prisons at the onset of the COVID-19 pandemic. Gilbert said the report shows “what $250,000 worth of damage control looks like.”

“House Democrats needed a way to discredit the plethora of damning Office of State Inspector General reports into the Parole Board, but they couldn’t risk turning over too many stones to do it,” Gilbert said. “That’s why today’s report doesn’t reflect a critical look at the Parole Board, but rather scrutiny of OSIG’s investigation into the potentially illegal activity at the Parole Board.”

Nixon Peabody said its review was based on “more than 8,500 pages of documents, records, emails, text messages and other materials.” and interviews with 30 people involved. The firm said there were “three notable exceptions” who were not interviewed.

Moschetti declined to participate, the report said, as did former Parole Board Examiner Mindy Applewhite, who was involved in Martin’s case.

Bennett, now a judge in Virginia Beach, also did not cooperate. Through a lawyer, the firm said, Bennet initially agreed to speak about the Martin case, then asked for a “a list of preliminary questions.” She and her lawyer largely did not answer those questions, the report says, instead offering up a general narrative “defending her handling of the matter.”

“Less than 24 hours prior to her scheduled interview, counsel for Former Chair Bennett informed Nixon Peabody that her client would no longer make herself available for an interview,” the report says.

The report notes Moschetti was “met with resistance” when she tried to interview Bennett as part of her investigation. Last June, the report says, an attorney representing Bennett asked OSIG for a legal opinion on its “authority to question a sitting judge” and a promise that the attorney general’s office would represent Bennett in the matter. After consulting the attorney general’s office, the report says, OSIG decided against trying to contact Bennett or her lawyer again.

The Richmond Times-Dispatch reported last month that Bennett had taken an unexplained leave from the bench.

Republicans have accused the Northam administration of ducking accountability for the Parole Board problems. The governor’s office has largely defended the board and has not taken disciplinary action against its members.

Apart from faulting OSIG for failing to address Moschetti’s personal opinions on the Martin case, the Nixon Peabody report leaves room for interpretation on how the agency handled the Parole Board investigation overall.

“We find that OSIG property initiated its investigation by following standard policies and procedures, and the editing process employed by OSIG in drafting the report was thorough,” Nixon Peabody wrote. “However, OSIG’s investigated process and methods employed during the investigation phase were not of the quality or substance necessary to conduct a thorough review.”

The law firm did identify one concrete step OSIG could take to improve confidence in its investigations. Instead of having the attorney general’s office advising both watchdog investigators and the agencies they’re investigating, Nixon Peabody said, OSIG should get funding to hire an independent lawyer.

“To avoid even the appearance of impropriety and potential conflicts, OSIG should have its own general counsel,” the firm wrote.

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville.