VIRGINIA: IN THE CIRCUIT COURT OF LOUDOUN COUNTY COMMONWEALTH OF VIRGINIA, CR00037536-00 v SCOTT A. ZIEGLER Defendant, RESPONSE TO MOTION FOR BILL OF PARTICULARS ‘The defendant filed a motion for a bill of particulars related to the indictment for a violation of § 18.2-209, false publications. In that motion the defendant lists three items he seeks specificity on: (1) the false and untrue statement; (2) the means of stating, delivering or transmitting that statement; and (3) the identity of the publisher, newspaper, magazine, or other publication, or radio station, television station, news service, or cable news service. ‘The Commonwealth contends this motion is premature. The defendant is only currently in the process of signing a standard discovery order. The defendant has yet to receive discovery. The defendant has yet to review that discovery. The defendant has filed a separate motion listing specific discovery he seeks. The Commonwealth intends to comply with many of the items included in that list that are not otherwise legally protected. The Commonwealth notes that P 6 of that motion asks for similar information as this bill of particulars. The Commonwealth argues that it is not appropriate at this time to order a response to this bill of particulars until discovery has been produced and reviewed. In the alternative, if this court believes that the bill is appropriate, the Commonwealth answers as follows:() “To my knowledge we don’t have any record of assaults occurring in our restrooms.” This statement has been widely reported and is available to be viewed online at https://go.boarddocs.com/vsba/loudoun/Board.nsf/Public under the June 22, 2021 tab. (2) and (3) The Commonwealth does not believe this information is required under Code § 19.2-230. The defendant's motion cites the Quesinberry case for support. The Virginia Supreme Court in Quesinberry stated, “a defendant is not entitled to a bill of particulars as a matter of right. ‘Whether the Commonwealth is required to file a bill of particulars rests within the discretion of the trial court. “The purpose of a bill of particulars is to state sufficient facts regarding the crime to inform an accused in advance of the offense for which he is to be tried. He is entitled to no more.” Quesinberry v. Commonwealth, 241 Va. 364, 372 (1991), quoting Hevener v. Commonwealth, 189 Va. 802, 814 (1949). The Court in Quesinberry upheld the denial of the bill of particulars noting, “Quesinberry sought to use [the motion] to expand the scope of discovery in a criminal case, and that is improper.” Id. Code § 18.2-209 creates a specific intent crime in that it criminalizes “knowingly and willfully” making false and untrue statements, “with the intent that the same shall be published, broadcast or otherwise disseminated . ...” However, that does not mean that the Commonwealth is obligated to prove that the defendant knew how and where his statements would be published, as the defendant now asks be made an element of the offense. For example, if Dr. Ziegler looked out in the audience at the school board meeting and saw individuals wearing badges that said “PRESS” who had recorders or even notepads, the elements of the statute would likely be met, even if Dr. Ziegler did not know which specific news outlet might be present or how his statement would transmitted to the public.The defendant's motion cites Raja v. Commonwealth for support, but that case also noted, “a bill of particulars is not a vehicle for a “fishing expedition’ into the Commonwealth's evidence.” Raja v. Commonwealth, 40 Va. App. 710, 723 (2003). Sims v. Commonwealth, another case Defendant cites, goes on to add that, “the Commonwealth is not required to include all evidence it intends to rely to prove an offense. ..” Sims, 28 Va. App. 611, 620 (1998), In fact, it appears that in not a single case cited by the defendant in his motion (Raja, Sims, Quesinberry, Swisher, ot Hevener) was the Commonwealth found to have needed to provide additional information to the defendant. The indictment in this case provides the defendant with adequate information to prepare his defense. ‘The Commonwealth also notes that the Bill of Particulars appears to focus on almost exclusively on which statement is the subject of the Commonwealth's prosecution (item (1) which has been identified above). Defendant's bill complains, “However, if this statement is not the subject of the Commonwealth's charges, Dr. Ziegler would waste vast energy and resources demonstrating his statements were true.” (Motion at 3). No such argument is made to support the other two requests contained in the bill. WHEREFORE, the Commonwealth asks that the defendant's motion for a bill of particulars be denied as premature, or in the altemative only be granted as supplied in this response,Respectfully submitted, TAS) Faw Fe~ Theophani K. Stamos, Esq. Cyi?q Special Counsel to the Attorney General TStamos@oag state.va.us Jason A. Faw, Esq. Assistant Attorney General JFaw@oag.state.va.us Office of the Attorney General 10555 Main Street, Suite 350 Fairfax, VA 22030 CERTIFICATE OF SERVICE On January | , 2023, a copy of this response was emailed to counsel for the defendant, Erin Harrigan, at harrigan@gentrylocke.com and a copy was mailed to Gentry Locke, 919 E. Main Street, Suite 1130, Richmond, VA 23219, Tan GR Jason A. Faw Assistant Attomey General