The Office of the State Inspector General “fell short” in its investigation of one of the Virginia Parole Board’s more controversial decisions last year, and the agency’s conclusions likely were influenced by the lead investigator’s “apparent bias,” a law firm hired by Gov. Ralph Northam’s administration said in a report released Monday.
The report drew immediate criticism from Republican lawmakers as an “attempt to deflect attention from the Parole Board’s indefensible conduct.”
The report by Nixon Peabody LLP also claims the methods OSIG used to conduct its investigation “were not of the quality necessary to ensure a thorough review.”
But the law firm acknowledged that it didn’t talk to two key people: the lead investigator they faulted and the former chairwoman of the parole board — both of whom were central to the investigation.
“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,” said the report to the governor and legislative leaders. “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.”
The investigator, Jennifer Moschetti, said through her lawyer that she performed her job without bias and that the report’s claims about her are a “false, defamatory, and a baseless attack” on her integrity.
The scope of the investigation was limited to OSIG’s review of a single parole board case, a detail that outraged Republican legislative leaders. They also noted the investigators were selected “by an all Democrat group of elected officials.”
“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,” House Republican leader Todd Gilbert said in a statement. “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.
“Today’s report is merely a campaign document. Their continued assault on a whistleblower is evident in this report.”
Sen. Mark Obenshain, R-Rockingham, co-chair of the Senate Republican Caucus, said Attorney General Mark Herring and General Assembly Democrats got what they wanted and criticized the report as a waste of taxpayer money. The legislature authorized up to $250,000 for Nixon Peabody to investigate.
Northam, in a statement from his spokeswoman, said the report confirms “what we have said all along: that the Governor’s office had no involvement in the Office of the State Inspector General’s investigation or its reports, nor did anyone in the Administration pressure OSIG to reach a different conclusion. This report clearly repudiates unsubstantiated allegations repeatedly made by some legislators.”
Further, the report shows OSIG did not conduct an investigation in an impartial manner in the one case that was reviewed, Northam said in the statement.
“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. Every issue deserves that — but especially parole, as it is a life-changing decision that offers hope to those who are incarcerated,” the governor said.
Although the problems at the parole board are broad, the report centers on a single decision investigated last year by the watchdog agency. OSIG determined the parole board and its former chair, Adrianne Bennett, violated state law and parole board policies in its decision to grant parole to Vincent Martin, who was sentenced to life in prison in 1980 for killing Richmond police officer Michael Connors.
The OSIG investigation found the board failed to give proper notification to Richmond’s top prosecutor before granting Martin parole, did not earnestly try to contact the victim’s family beforehand, and denied one of Martin’s alleged victims in a separate case a chance to address the board, among other issues.
After OSIG’s six-page report was made public last summer, a 13-page draft report was leaked to certain news outlets this year. It included other allegations that had been removed from the final report. The additional allegations centered on Bennett, who left the board last April and became a judge in Virginia Beach.
Among other things, the OSIG documents said Bennett violated her duty under Virginia’s constitution to remain impartial while considering the case.
“During interviews with VPB employees, Bennett often verbally stated that she believed Martin was innocent and employees felt that this belief was the main deciding factor of his release,” OSIG wrote in the draft report.
But the Nixon Peabody report said there was only one “official” OSIG report related to the Martin case, and that was the six-page document issued on July 28, 2020.
“Previous versions of the report were mere drafts containing allegations edited from the final report after OSIG determined that they could not be substantiated,” the report says.
The report focuses in some detail on Moschetti, who provided records to lawmakers earlier this year and filed a lawsuit acknowledging she had done so in asking for whistleblower status. Her lawsuit accused Herring’s office of sanitizing her report and said the governor’s staff was so intimidating in a meeting with OSIG about the case that Inspector General Michael Westfall feared for his job.
The attorney general and governor’s office denied those allegations, and Westfall — who reports to the governor — fired Moschetti, who then dropped her lawsuit.
In a recording of the meeting obtained by the Richmond Times-Dispatch, senior staff members in Northam’s administration questioned the power of Virginia’s watchdog agency to investigate the parole board during an ongoing investigation and reprimanded Westfall for how many investigations his office was conducting — conversations that aren’t reflected in the Nixon Peabody report.
In the recording, Westfall called it the type of meeting that might lead “to me getting a new job against my will.”
The Nixon Peabody report cited several early email communications from Moschetti that “indicate a high probability of bias against Mr. Martin being granted parole.”
In one email the report said was sent to an OSIG investigations manager, Moschetti explained why she believed the Martin parole decision should be investigated:
“This also may be my opinion, but [former Chair Adrianne Bennett] lashing out at [Richmond police] and other law enforcement organizations in her media statement doesn’t sit well with me. To me, they are providing evidence that this person should not be released and it should be reviewed. To me, her lashing out sounded personal that the [law enforcement] community disagreed with her and the Board. VPB is not FOIAble, so the only way to know if policies and procedures and laws were followed would be to investigate/audit. Or do we just have to assume they all were. UGGGHHHH.”
“And if he was denied last year due to his history of violence, what in their review this year made it different?” Moschetti added.
Nixon Peabody said the law firm interviewed 30 people during the course of its investigation. The interviews included seven OSIG staff members, including Westfall and his deputy. The lawyers also interviewed 12 current and former Virginia Parole Board staff members, including current Chair Tonya Chapman, as well as the parole board members during the time of Martin’s parole.
But the law firm never interviewed Bennett, who was key in the board’s decision to grant Martin parole. The law firm also was unable to talk to Moschetti, who declined, and Mindy Applewhite, Martin’s parole examiner, who also declined on advice from her counsel, the report said.
After Nixon Peabody’s repeated efforts to schedule an interview with Bennett, her attorney told the law firm that she had decided to speak with them but requested a list of preliminary questions before the interview, according to the report. Nixon Peabody then submitted the written questions to Bennett’s attorney prior to her interview, which was scheduled for June 2.
But instead of answering the questions posed to her directly, Bennett “responded with a narrative explaining the context of Mr. Martin’s parole grant and defending the handling of the matter.”
“Most of our questions went unanswered,” the report said. Less than 24 hours before her scheduled interview, Bennett’s attorney informed Nixon Peabody that she “would no longer make herself available for an interview.” The law firm did not have the authority to compel people to speak or to subpoena records.
On April 14, Bennett went on “extended leave” from the bench in Virginia Beach Juvenile and Domestic Relations District Court, and court clerks were instructed not to reach out to her with questions while she was gone, according to records obtained by The Times-Dispatch through a Freedom of Information Act request.
The court’s clerk, Amy Burnham, emailed those instructions to her colleagues on April 14. She also told some of her colleagues not to include Bennett in emails sent to all the court’s judges, and said she was removing Bennett from a group email that went just to judges. Bennett’s status as a judge and the reasons she went on leave are not clear.
“Once again, the whistleblower from OSIG is blamed,” Sen. Steve Newman, R-Lynchburg, said in a statement about the Nixon Peabody report. “Which is ironic considering this Administration claims to be pro-worker and pro-whistleblower protection. This sham of a report tries to derive the OSIG investigator’s intent without actually speaking to her. And the current Judge, former Board Chair, Adrianne Bennett couldn’t be bothered to be interviewed by the investigators or participate substantively in the report.”
After the Martin case, OSIG in 2020 found violations of policy and law in how Bennett and the board handled the release of at least eight other convicted killers. Reporting by The Times-Dispatch this year also showed that Bennett released more than 100 parolees from supervision without any recommendation from local parole officers.
“As suspected, the final ‘independent investigation’ report released today includes no true investigation of the Virginia Parole Board,” Newman added. “It doesn’t answer the important questions of why scores of violent offenders were released by the Board in 2020; why scores of victims, their families and Commonwealth’s Attorneys weren’t notified within the legal time frame of their release; and why Parole Officers weren’t consulted when the Chairman of the Parole Board was waving her magic wand of power to release hundreds of offenders from community supervision.”