Nett Attorney Says Prosecutor Agreed to Verdict Form He Now Challenges

Update: Nett Verdict Stands; Not Removed From Office.

By Valerie Cury

A Loudoun County Circuit Court judge will hear arguments June 30 on whether Purcellville Vice Mayor Ben Nett should be permanently removed from office, following a motion filed by Special Prosecutor Eric Olsen. 

Olsen has filed a motion asking the court to vacate or set aside the verdict and remove Nett from office following a six-day jury trial held in April. In response, Nett’s attorney, Jennifer L. McGovern, has filed a memorandum opposing the motion and arguing that Olsen agreed to the very verdict form he now challenges.

The dispute centers on how jurors were instructed to decide whether Nett should be removed from office under Virginia law.

McGovern states that the court reviewed Virginia Code sections 24.2-233 and 24.2-235 and concluded that even if jurors found by clear and convincing evidence that Nett committed one of the violations alleged by the Commonwealth, the jury still retained the authority to determine whether removal from office was warranted.

The court subsequently proposed a sixth verdict form addressing that question.

According to the defense filing, prosecutors not only failed to object to the proposed verdict form but agreed that it correctly reflected the law.

“The Court raised the issue and the removal verdict form. The Commonwealth not only did not object to the removal verdict form, it agreed that this was a correct interpretation of the relevant statutory provisions,” McGovern wrote.

The filing further states that several days passed between the court’s initial discussion of the issue and the final jury instructions. During that time, both sides continued preparing for trial, submitted proposed jury instructions and verdict forms, and participated in discussions with the court regarding the final language that would be provided to jurors.

McGovern argues that the prosecutor again agreed to the removal verdict form during those proceedings and did not raise any objection before the case was submitted to the jury.

Now, following the verdict, Olsen is asking the court to find that the removal verdict form should not have been given to the jury and that Nett should be removed from office.

McGovern contends that argument comes too late.

“By agreeing to the removal verdict form on multiple occasions over multiple days without raising any objection thereto, the Commonwealth waived its argument challenging the removal verdict form,” she wrote.

The defense filing cites Virginia Supreme Court precedent holding that jury instructions and verdict forms given without objection become the “law of the case” and are binding on the parties, even if one side later believes the instruction may have been incorrect.

McGovern also argues that the verdict form was not designed to mislead jurors because it originated with the court rather than either party.

“The form in Nett’s case was proposed by the Court rather than by either party, demonstrating its neutrality and that it was not calculated or designed to mislead the jury into a finding one way or another,” the filing states.

In his motion, Olsen argues that he previously agreed to the removal verdict form when the issue was raised during trial and did not have sufficient time to fully research the legal question at that moment.

Nett’s attorney, Jennifer L. McGovern, disputes that characterization, writing that Olsen had several days to research the issue before jury instructions were finalized.

“To the extent Mr. Olsen argues that he previously agreed to the Removal Verdict Form because he was required to think on his feet and did not have time to research the issue, not only did he have several days to research the issue prior to the jury instructions being read to the jury, but having to think on one’s feet is a necessary component of litigation,” McGovern wrote.

McGovern maintains that the verdict form accurately reflected Virginia law and that jurors possessed the authority to decide whether removal from office was warranted.

“It is within the jury’s discretion to determine whether removal is warranted by clear and convincing evidence under Virginia Code § 24.2-233,” the filing states.

On June 30, the court is scheduled to determine whether the Commonwealth can challenge a verdict form it previously agreed to and whether the jury’s verdict should remain intact.

The case is the latest development in a series of legal proceedings involving Nett.

He is currently suspended from office under Senate Bill 648, legislation approved by the Virginia General Assembly earlier this year and signed into law by Governor Abigail Spanberger. 

The law applies to towns within Planning District 8, which is only the Town of Purcellville, with populations between 8,000 and 10,000 residents and requires the suspension of elected officials while felony criminal charges remain pending.

Prior to his suspension, Nett was part of a 4-3 majority on the Purcellville Town Council. His suspension created a 3-3 split among the remaining council members.

Nett has denied wrongdoing and continues to contest both the criminal allegations against him and efforts to permanently remove him from office.

On June 22, Nett’s attorney, Ryan Campbell, filed a Writ of Prohibition with the Virginia Supreme Court challenging Senate Bill 648. According to the filing, Nett argues the law is an unconstitutional bill of attainder in violation of both the Virginia Constitution and the U.S. Constitution.

Nett has also publicly alleged that the legal actions against him are part of a broad criminal conspiracy. He has stated that he has met with the FBI and has called for a U.S. Department of Justice civil rights investigation.