Charges against Holly Gray, 49, of Springfield, and her boyfriend Dean P. Cullen, 49, were dropped, but not dismissed, on Friday, Dec. 5.
Gray and Cullen were arrested by Fairfax Police on Aug. 12, on charges involving a 12-year-old relative, forced sexual activity, drugs and a videotaping operation, according to the affidavit for the search warrant filed by police in Fairfax Circuit Court.
Cullen was charged with the forcible sodomy involving Gray's 12-year-old relative, and Gray was charged with taking indecent liberties with a minor.
Despite charges being dropped, there is no justice for Gray, said public defender Kimberly Phillips.
"We have a client marred in the public, and here we are six months later," Phillips said. Gray and Cullen spent three months in jail.
An hour before Gray and Cullen's scheduled trial on Friday, Dec. 5, Michael Benary, of the Office of the Commonwealth's Attorney, made an entry of nolle prosequi in both cases over the objections of both co-defendants.
Nolle prosequi is used by "prosecutors who don't want to go forward with a case," said Steven Merril, a defense attorney who was the deputy commonwealth's attorney from 1973-82. Merril is not familiar with the particular case and was not commenting on it.
BENARY STATED in court that he elected to file nolle prosequi in the case following an evaluation of the alleged 12-year-old victim, according to Phillips.
The Office of the Commonwealth’s Attorney has one year to pursue the charges, according to Phillips, who says she and her client are now left unsure whether the commonwealth will choose to prosecute in the next year.
"I don't know if the commonwealth feels there is not enough evidence to go on, or that it is inappropriate to go forward," Phillips said. "I definitely feel left in the dark, and my client who denies those charges is left in a horrible situation," Phillips said.
Gray's three children now live with their father, according to Phillips. Gray was released from jail in November after posting bond.
"She maintains her innocence, and we're working to rebuild her family," Phillips said.
Some 95 PERCENT of nolle prosequi cases are not brought back by prosecutors, Merril said.
But because of the law in Virginia regarding discovery, defense attorneys don’t have the ability to review prosecutors' cases against their clients or the investigation of prosecutors.
Other defense attorneys confirm Phillip's views on the lack of access they have to a prosecutor's case against a client.
"It's trial by ambush in Virginia," said Blair Howard, a defense attorney in Warrenton, during a fall interview regarding discovery laws. He, too, was not commenting on Gray and Cullen's case. "You see witnesses who come on the stand for the first time, and you have no idea what they are going to say."
Benary could not be reached despite phone calls and visits to the Office of the Commonwealth's Attorney.