Hey, Hey, Ralphy Boy! SUM Times Ya Make MI Wanna Ralph! (A Little Bit Louder Now). LOL
You Watched Some Negra Orderly Volunteer to Participate in a Phase Three Clinical Trial, for the Love of God, Doctor? LOL
Probable Cause
1. Paragraphs 1 to 35 are incorporated by reference.
2. A “prima facie case”, “translates from Latin as, essentially, the case at first sight”, and “[a]s that phrase implies, it is a way to evaluate a case at an initial stage to see if there is any support for bringing it to trial.” Deborah C. England, “What Is a Prima Facie Case?” Criminal Defense Lawyer, January 5, 2021.
3. “A party with the burden of proof presents a prima facie case when the party presents enough evidence to support a verdict in the party’s favor, assuming the opposing party does not rebut or disprove it”, and “[t]his means that the party with the burden of proof has shown that he or she can meet that burden as to each element of his or her case.” Id.
4. As to a finding of probable cause, “’in justifying the particular intrusion[,] the police officer must be able to point to specific and articulable facts which . . . reasonably warrant that intrusion’”, South Dakota v. Opperman, 428 U.S. 364 (1976) (quoting Terry v. Ohio, 392 U.S. 1 (1968)), and “[s]uch a requirement of ‘specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence’”. Id. (quoting Ibid. n. 18).
5. Yet, mindful that, in exercise of the police powers in relation to public health crises, “[t]he only ‘competent evidence’ that could be presented to the court to prove these propositions was the testimony of experts, giving their opinions”, Jacobson v. Massachusetts, 197 U.S. 11 (1905), of notorious record, Petitioner is one federal “whistleblower”, Order, Webb v. Dep’t of the Army, Civil Action 1:22-cv-02236 (UNA) (D.D.C. Oct. 7, 2022), and “former biological warfare planner”, Mark Hand, “2023 Candidate Profile: Major Mike Webb Running For House District 3,” Arlington Patch, October 19, 2023, had creditable service as the former Executive Officer/Aide de Camp and as the most junior commissioned officer to have ever served as the Operations Officer for all U.S. Army strategic counterintelligence, playing a key staff role in standing up the Armed Forces Medical Intelligence Center (AFMIC), see generally DODD 6420.1, Armed Forces Medical Intelligence Center (AFMIC), September 30, 1996 , the precursor to the National Medical Intelligence Center (NMIC), see generally DODI 6420.01, National Center for Medical Intelligence (NCMI), March 20, 2009, incorporating Change 3, effective September 8, 2020, which was the subject of the ABC News report, Josh Margolin & James Gordon Meek, “Intelligence report warned of coronavirus crisis as early as November: Sources ‘Analysts concluded it could be a cataclysmic event,’ a source said,” ABC News, April 8, 2020; See also Fed.R.Evid. 702[1]. But see Webb v. Davenport, Case No. CL22W03079-00 (Chesterfield Cir. 2022), on appeal Record No. 230277, (Va. 2023); Webb v. Porter, Case No. CL22002367 (Alexandria Cir. 2023), on interlocutory appeal Record No. 2013-23 (Va. 2023) ; Webb v. Porter, Record No. 2013-23-4 (Va. 2023); Webb v. Porter, Civil Action Number 1:23-cv-01346 (E.D.Va. 2023).
6. And, in that capacity, while deemed as speculative and incredulous by prior courts, Petitioner has proposed as to a “similarity of objects”, Va.S.Ct.R 2:701, that “the U.S.S. Theodore Roosevelt, a Nimitz-class, nuclear powered, aircraft carrier, equipped with two Westinghouse A4W reactors, together generating 190 megawatts of power, enabling it to achieve maximum speeds of at least, officially, over 30 knots, one of the fastest seagoing vessels in any navy in the world. Staff, “USS Theodore Roosevelt (CVN-71),” Military Factory, https://www.militaryfactory.com/ships/detail.php?ship_id=USS-Theodore-Roosevelt-CVN71 (accessed October 10, 2022). Pursuant to Section 1.1(b), Executive Order 12,958, Classified National Security Information, April 17, 1995, “’[i]nformation’ means any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government”[2].
7. And there is no genuine issue of fact that a Nimitz-class carrier is owned and/or controlled by the government, making the top speed for this force projection platform a proper subject for personnel security classification being assigned, and unknown to others, lacking a sufficient need to know.
8. Since the Obama Administration, it has been accepted in the Intelligence Community (IC) that “[i]nformation may be originally classified under the terms of this order only if all of the following conditions are met”, to include “the information is owned by, produced by or for, or is under the control of the United States Government”. Section 1.1(a)(2), Executive Order 13,526, Classified National Security Information, December 29, 2009.
9. Hence, a reasonable trier of fact might conclude that, if, since the works of Robert Koch on the causation methods attributed to anthrax in 1870, the scientific community had embraced science has known how to determine infectious dose by simple performance of the “How Many Licks Does It Take to Get to the Center of a Tootsie Roll Pop Test” since 1870, Robert Koch, in the development of Koch’s Postulates, Julia A. Segre, What does it take to satisfy Koch’s postulates two centuries later? Microbial genomics and Propionibacteria acnes, 133 J Invest Dermatol. 9 , pp 2141-2142 (September 2013), doi:10.1038/jid.2013.260, one might find it suspect, especially given the advances of medical science, which today may safely utilize E6 Vero cells to perform this readily available methodology for assessing transmission risk, see John A. Lednicky, Isolation of SARS-CoV-2 from the air in a car driven by a COVID patient with mild illness, MedRxIV, January 15, 2020, it may raise a reasonable suspicion upon report that “[t]he Human Challenge Programme”, described as “partnership between Imperial College London, the Department for Business, Energy and Industrial Strategy (BEIS), hVIVO, a leading clinical company with expertise in viral human challenge models, and the Royal Free London NHS Foundation Trust”, had, not until October 2020, announced “[t]he first stage” of a project to “explore the feasibility of exposing healthy volunteers to the SARS-CoV-2 coronavirus”, attempting only then to “recruit volunteers between the ages of 18 and 30 with no previous history or symptoms of COVID-19, no underlying health conditions and no known adverse risk factors for COVID-19, such as heart disease, diabetes or obesity.” Ryan O'Hare , “UK researchers to explore human challenge studies for COVID-19,” Imperial College, October 20, 2020. See also William Booth & Carolyn Y. Johnson, “Britain to infect healthy volunteers with coronavirus in vaccine challenge trials,” Washington Post, October 20, 2020;
10. By July 2020, some American scientists had finally conceded knowledge regarding a certain empirical quantum, defined as an “infectious dose,” or “how much of the pandemic virus it takes to become infected,” Christopher Snowbeck, “University of Minnesota leads work group on infectious dose of COVID-19,” Star Tribune, July 11, 2020. See also Ben Guarino and Carolyn Y. Johnson, “Volunteers sign up to put their lives on the line for a coronavirus vaccine,” Washington Post, June 15, 2020.
11. No defendant, including the former Virginia Governor, who had summarily dismissed Petitioner’s civil complaints, has ever refuted the clinical fact that dispute the rudimentary and empirical fact that a highly contagious disease requires no more than 15 particles in infectious dose, Jean Maguire van Seventer & Natasha S. Hochberg, Principles of Infectious Diseases: Transmission, Diagnosis, Prevention, and Control, 6 Intern’l Encyc. Pub. H. 2nd Ed., http://dx.doi.org/10.1016/B978-0-12-803678-5.00516-6, nor that researchers have required at least 100,000 particles, near the beginning of the global public health crisis, simply to infect a Syrian hamster, Jasper Fuk-Woo Chan, et al., Simulation of the Clinical and Pathological Manifestations of Coronavirus Disease 2019 (COVID-19) in a Golden Syrian Hamster Model: Implications for Disease Pathogenesis and Transmissibility, 71 Clin. Infect. Dis. 9 pp. 2428-2446, December 3, 2020, doi: 10.1093/cid/ciaa325, Epub., March 26, 2020, raising a reasonable inference of suspicion that something about this metric is, in fact, classified information.
12. It had been known, or knowable, that this amount in infectious dose had also been required to infect transgenic mice, ferrets and Rhesus and Cynomoglus monkeys, with live, wild virus in a challenge study, Suresh Kumar, et al., Selection of animal models for COVID-19 research, 31Virus Dis. 4, pp. 453-458 (October–December 2020), https://doi.org/10.1007/s13337-020-00637-4. See also Abishek Chandrasheka, et al., SARS-CoV-2 infection protects against rechallenge in rhesus macaques, 369 Science 6505, pp. 812-817, August 12, 2020, doi: 10.1126/science.abc4776, ePub, May 20, 2020[3]. But see Ben Killingsley, et al., Safety, tolerability and viral kinetics during SARS-CoV-2 human challenge in young adults, 28 Nat. Med., pp. 1031–1041 (May 2022), https://doi.org/10.1038/s41591-022-01780-9, Epub., March 31, 2022[4]. Yet, with regard to Bacillus anthracis (BA), “[t]he median infectious dose (ID50), the average amount of BA it takes to infect someone and cause anthrax, is estimated at 8,000 to 50,0000 spores via the inhalation route of exposure, but is unknown for cutaneous and ingestion exposure”, Staff, “Anthrax: Medical Information,” OSHA, https://www.osha.gov/anthrax/medical-information (accessed October 21, 2023)[5].
13. And, intriguingly, “[m]ore than 38,000 people ha[d] indicated a willingness to volunteer by signing up with vaccine advocacy group 1Day Sooner”, William Booth & Carolyn Y. Johnson, “Britain to infect healthy volunteers with coronavirus in vaccine challenge trials,” supra, but only 36 had been selected, indicative of some unknown and unpublished criteria, of which 50% had been reported to exhibit expressions of illness between two and four days of being intranasally inoculated with only 10 particles of the original COVID-19 variant, Ben Killingsley, et al., Safety, tolerability and viral kinetics during SARS-CoV-2 human challenge in young adults, 28 Nat. Med., pp. 1031–1041 (May 2022), https://doi.org/10.1038/s41591-022-01780-9, Epub., March 31, 2022, about which a reasonable trier of fact would be justified in concluding: “I’m afraid it’s just too little too late.” Dismissal Order, Webb v. Northam, Webb v. Northam, Case Number CL20001624 (Alexandria Cir. April 6, 2021).
14. Ben Killingsley, et al., Safety, tolerability and viral kinetics during SARS-CoV-2 human challenge in young adults, supra, making COVID-19 a highly contagious only to those persons.
15. Almost a year after the COVID-19 countermeasures had been unleashed upon the world and the American public, even offered as an American Rescue Plan, putting the nation on “putting the nation on a war footing.”, “and that’s not just hyperbole”, Briefing Room, “Remarks by President Biden on the Anniversary of the COVID-19 Shutdown,” The White House, March 11, 2021, federal public health regulators had conceded that “[t]he infectious dose of SARS-CoV-2 needed to transmit infection has not been established”, Staff, “Scientific Brief: SARS-CoV-2 Transmission,” CDC, May 7, 2021. But see also Garth Rapeport, et al., SARS-CoV-2 Human Challenge Studies — Establishing the Model during an Evolving Pandemic, 385 N. Eng. J. Med. 11, pp. 961-964, July 21, 2021
16. Perhaps to Petitioner’s great shame, as accorded and endorsed by the courts, he had sought documents regarding the classification of standard threat assessment metrics, i.e., infectious dose and secondary attack rate, see generally Self-Study Course SS1978, Principles of Epidemiology in Public Health Practice, Third Edition: An Introduction to Applied Epidemiology and Biostatistics, “Lesson 3: Measures of Risk,” CDC (October 2006), updated May 18, 2012, distilled the position from the Executive Office of the President, that it can neither confirm nor deny that these standard epidemiological metrics are classified information. See Webb v. Fauci, Civil Action No. 3:21-CV-00432 (E.D.Va. 2022), aff’d Record No. 21-2394, cert. denied Record No. 21-8242 (U.S. 2022); Webb v. Fauci, Record No. 21-6868 (U.S. 2022); Webb v. OMB, Civil Action No. 3:22-cv-00418-DJN (E.D.Va. 2022), aff’d Record No. No. 22-1698 (4th Cir. 2023); Webb v. Meta Platforms, Inc./Webb v. Friedrichs, Civil Action No. 1:23-cv-00816 (D.C. 2023).Authors:.
17. In April 2020, when the Virginia Governor had been emphasizing the point about a highly contagious disease, Transcript, “Ralph Northam Virginia COVID-19 Press Conference Transcript April 27,” supra, other American scientists had been reporting, “We don’t have an infectious dose yet, so how many particles would you have to be exposed to?”, conceding “It’s hard to say”. Sarah Gibbens, “See how a sneeze can launch germs much farther than six feet,” National Geographic, April 17, 2020.
18. And, not until October 2020, three months before the final approval of the first “COVID-19 countermeasure”, Press Release, “FDA Takes Key Action in Fight Against COVID-19 By Issuing Emergency Use Authorization for First COVID-19 Vaccine,” FDA, December 11, 2020, as defined in the Emergency Use Authorization (EUA) Declaration, 85 Fed. Reg. 63, 182501, April l , 2020, a medical device that had been developed expressly to address an “emergency that has a significant potential to affect national security”, defined expressly as “an imminently life-threatening and specific risk to United States military forces”, in addition to “the health and security of United States citizens living abroad and that involves a novel (new) coronavirus (nCoV) first detected in Wuhan City, Hubei Province, China in 2019 (2019–nCoV)”, Id., arguably rendering any other use outside that scope an “unauthorized commitment” under the Federal Acquisition Regulations. FAR § 1.602-3s; see also Webb v. Bowser, Civil Action No. 1:22-cv-02628 (UNA) (D.C. 2022), it was reported that “a virus characterisation study”, would commence, to “assess what amount of virus is needed to cause infection and elicit an immune response by slowly increasing the viral dose to which small groups of volunteers are exposed.” Ryan O'Hare , “UK researchers to explore human challenge studies for COVID-19,” supra.
19. In “rambling and fantastical arguments”, Order, Webb v. Austin, 1:22-cv-03827-UNA (D.C. May 25, 2023), Petitioner has averred that any release to the general public of a COVID-19 countermeasure, developed without the prerequisite knowledge of infectious dose, see and, by definition, making them participants in a phase three clinical trial, Shuo Feng, et al., Correlates of protection against symptomatic and asymptomatic SARS-CoV-2 infection, 27 Nat. Med. 11, pp. 2032-2040 (November 2021), doi: 10.1038/s41591-021-01540-1, Epub. September 29, 2021; Florian Krammer, Correlates of protection from SARS-CoV-2 infection, 397 Lancet 10283, pp. 1421-1423, April 17, 2021, doi: 10.1016/S0140-6736(21)00782-0, Epub. April 9, 2021; Stanley A. Plotkin, Correlates of Protection Induced by Vaccination, 17 Clin. & Vacc. Immun. 7, pp. 1055-1065 (July 2010), doi:10.1128/CVI.00131-10, as well as the absence of the prerequisite knowledge of the corresponding correlates of protection, Joe Palca, “New Evidence Points To Antibodies As A Reliable Indicator Of Vaccine Protection,” NPR, August 23, 2021 (citing Peter Gilbert, et al., Immune correlates analysis of the mRNA-1273 COVID-19 vaccine efficacy clinical trial, 375 Science 6576, pp. 43-50, November 23, 2021, doi: 10.1126/science.abm3425)[6], might arguably be described as an attempt to avert a large sample size, phase three clinical trial, in the development of an effective vaccine, in contravention to prior federal precedent. See Doe v. Rumsfeld, Civil Action No. 03-707 (EGS) (D.D.C. Apr. 6, 2005); Doe v. Rumsfeld, 341 F. Supp. 2d 1 (D.D.C. 2004); Doe v. Rumsfeld, 297 F. Supp. 2d 119 (D.D.C. 2003).
20. And yet, while “e]specially a pro se complaint, should not be dismissed summarily unless ‘it appears ‘beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’”, Gordon v. Leeke, 574 F.2d 1147 (1978) (quoting Haines v. Kerner, 404 U.S. 519 (1972) (quoting Conley v. Gibson, 355 U.S. 41 (1957)) (emphasis added), and despite a long-held precedent that a complaint would survive a demurrer where allegations were at least facially plausible, or “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
21. Yet, to date, no court of competent jurisdiction, had found that threshold “requirement of ‘specificity in the information upon which police action is predicated is the central teaching of this Court’s Fourth Amendment jurisprudence’, Opperman, 428 U.S. at 364 (quoting Terry, 392 U.S. at 1, n. 18), despite reports that “Sentara got its shipment of 11,700 doses of the Pfizer COVID-19 vaccine”, and the doses had been expected to “cover the 12,500 priority front-line healthcare workers at Sentara.” Brett Hall, “First COVID-19 vaccine in Virginia administered at Sentara Norfolk,” WAVY, December 15, 2020.
22. No reasonable suspicion was found upon reports that “[t]he first doses of the COVID-19 vaccine were administered at the VCU Medical Center”, “[s]imilar to what Virginians saw. . . at Bon Secours in Richmond and Sentara Hospital in Norfolk, VCU health care workers rolled up their sleeves to receive the first doses of the vaccine”, as “[f]ellow doctors, nurses, VCU Staff and Governor Ralph Northam cheered aloud as the needle was pulled out of Roberson’s arm.” 8 News, “‘I did it for my family’: VCU Health gives first doses of COVID-19 vaccine to front-line workers,” WRIC, December 16, 2020, updated December 17, 2020.
23. “A significant fraction of MERS cases were linked to the healthcare setting, ranging from 43.5 % for the nosocomial outbreak in Jeddah, Saudi Arabia, in 2014 to 100% for both the outbreak in Al-Hasa, Saudi Arabia, in 2013 and the outbreak in South Korea in 2015”, and “[b]oth MERS and SARS nosocomial outbreaks are characterized by early nosocomial super-spreading events.” Gerardo Chowell, et al., Transmission characteristics of MERS and SARS in the healthcare setting: a comparative study, 13 BMC Med. 210 (2015), DOI 10.1186/s12916-015-0450-0.
24. “Key features of these viruses are the dominance of nosocomial transmission, and pathogenesis that is driven by a combination of viral replication in the lower respiratory tract and an aberrant host immune response.” Emmie de Wit, et al., SARS and MERS: recent insights into emerging coronaviruses, 14 Microbiol., pp. 523-533 (August 2016).
25. Intriguingly, “SARS and MERS were associated mainly with nosocomial spread, whereas SARS-CoV-2 is much more widely transmitted in the community”, N. Petrosillo, et al., COVID-19, SARS and MERS: are they closely related? 26 Clin. Microbio. & Inf., pp. 729-734 (2020), at least a curiosity spurring and anomalous presentation for a “highly contagious” disease, which would reasonably be expected not to find self-containment, given the “delayed fuse” incubatory period, and unrestricted range of travel for a patient unwittingly infected. See also Genevive R. Meredith, et al., Routine Surveillance and Vaccination on a University Campus During the Spread of the SARS-CoV-2 Omicron Variant, 5 JAMA Netw Open 5, pp. e2212906, May 18, 2022, doi: 10.1001/jamanetworkopen.2022.12906: 10.1001/jamanetworkopen.2022.12906[7]; Katherine J. Siddle, et al., Transmission from vaccinated individuals in a large SARS-CoV-2 Delta variant outbreak, 185 Cell 3, pp. 485-492.e10, February 3, 2022, doi: 10.1016/j.cell.2021.12.027, ePub. December 23, 2021[8].
26. Yet, while, to some extent, “[n]osocomial infections, also known as hospital-acquired infections, pose[d] a serious challenge to healthcare professionals globally during the Coronavirus disease 2019 (COVID-19) pandemic”, Qiu Du, et al., Nosocomial infection of COVID-19: A new challenge for healthcare professionals (Review), 47 Int. J. Mol. Med. 4, p. 31, February 1, 2021, doi: 10.3892/ijmm.2021.4864, in an aberrant presentation within the United States, the typical pattern had suggested, with the exception of nursing care homes and veteran care facilities, “in a large academic medical center with rigorous infection control measures, nosocomial COVID-19 was rare during the height of the pandemic in the region.” Chanu Rhee, et al., Incidence of Nosocomial COVID-19 in Patients Hospitalized at a Large US Academic Medical Center, 3 JAMA Network (Open) 9, September 1, 2020, e2020498. doi: 10.1001/jamanetworkopen.2020.20498.
27. And, “[a]lthough SARS-CoV-2 belongs to the same Betacoronavirus genus as the coronaviruses responsible for the severe acute respiratory syndrome (SARS) and Middle East respiratory syndrome (MERS) (SARS-CoV and MERS-CoV, respectively), this novel virus seems to be associated with milder infections.” N. Petrosillo, et al., COVID-19, SARS and MERS: are they closely related? Supra.
28. A “court may grant relief under its inherent equity power if, because of the fraud of his opponent, the aggrieved party was prevented from presenting his claim or defense to the court. Aheroni v. Maxwell, 205 Cal.App.3d 284 (1988) (citing In re Marriage of Stevenoti, 154 Cal.App.3d 1051 (1984); DeMello v. Souza, 36 Cal.App.3d 79 (1973).
29. “Two essential conditions are found in a classic case in equity which seeks to set aside a judgment: first, the judgment is one entered against a party by default under circumstances which prevented him from presenting his case; second, these circumstances result from extrinsic fraud practiced by the other party or his attorney.” Id. (citing Otani v. Kisling, 219 Cal.App.2d 438 (1963)).
30. “The vital question is ‘whether the successful party has by inequitable conduct, either direct or insidious in nature, lulled the other party into a state of false security, thus causing the latter to refrain from appearing in court or asserting legal rights.’” Id. (quoting Colich v. United Concrete Pipe Corp., 145 Cal.App.2d 102 (1956).
31. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake”, and “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Fed.R.Civ.Pro. 9(b).
32. Under the rule stated in Thompson v. Bacon, 245 Va. 107,425 S.E.2d 512 (1993), “[a] party alleging fraud must prove by clear and convincing evidence (1) a false representation, (2) of a material fact, (3) made intentionally and knowingly, (4) with intent to mislead, (5) reliance by the party misled, and (6) resulting damage to him.” Id. (citing Winn v. Aleda Constr. Co., 227 Va. 304 (1984)).
33. Of public boast, “[o]n Feb. 7, a month before the first case of coronavirus was diagnosed in Virginia, Dr. Oliver declared the virus a public health threat”, Jeremy M. Lazarus, “Faces of leadership: Virginia Health Commissioner M. Norman Oliver is on front line of fight,” Richmond Free Press, March 26, 2020, updated March 27, 2020 (emphasis added), an ultra vires declaration, per se, in contravention of Va. Code § 44-146.17, which requires at least a reported case in an affected area, and a communicable disease.
34. “[T]he State Health Commissioner declared COVID-19 a disease of public health threat on February 7, 2020”, an ultra vires declaration, and “Virginia Governor Ralph S. Northam declared a state of emergency due to COVID-19 on March 12, 2020 in Executive Order No. 51”. Ralph S. Northam & M. Norman Oliver, Order of the Governor and State Health Commissioner, Declaration of a Public Health Emergency, March 17, 2020.
35. While some may propose that “the doctrine of sovereign immunity is ‘alive and well’ in Virginia”, Messina v. Burden, 228 Va. 301 (1984), “[n]o citizen or member of the community is immune from prosecution, in good faith, for his alleged criminal acts”, and “[t]he imminence of such a prosecution, even though alleged to be unauthorized, and, hence, unlawful, is not, alone, ground for relief in equity which exerts its extraordinary powers only to prevent irreparable injury to the plaintiff who seeks its aid”, Beal v. Missouri Pacific Railroad Corp., 312 U.S. 45 (1941).
36. Even a soldier “must use common sense”, Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975), for “[t]he acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose no criminal liability upon him unless the superior’s order is one which a man of ordinary sense and understanding would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be unlawful.” U.S. v. Calley, 22 U.S.C.M.A. 534 (1973).
Simple Symbol
37. Paragraphs 1 to 71 are incorporated by reference.
38. “Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds”, Stanley v. Georgia, 394 U.S. 557 (1969)
39. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein”, West Virginia State Bd. of Educ. v. Barnett, 319 U.S. 624 (1943), and “’if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.’” Jacobson, 197 U.S. 11 (1905) (quoting Mugler v. Kansas, 123 U.S. 623 (1887); Minnesota v. Barber, 136 U.S. 313 (1890); Atkin v. Kansas, 191 U. S. 207 (1907)).
40. Yet, the former Virginia Governor, who had announced that “symbols are important”, 13 News Now, “Pharrell Williams Joins Virginia Governor Ralph Northam for an Announcement in Richmond,” YouTube, June 16, 2019,
(accessed June 28, 2021), and who had relied upon authorities for masking guidance that had suggested that such devices might provide “symbols of altruism and solidarity”, and that “[s]ignaling participation in health behaviors by wearing a mask as well as visible enforcement can increase compliance with public mask wearing, but also other important preventative behaviors”, Jeremy Howard, et al., Face Masks Against COVID-19: An Evidence Review, Preprints, doi:10.20944/preprints202004.0203.v2 (May 13, 2020); see also Trisha Greenhalgh, et al., Face masks for the public during the covid-19 crisis, BMJ 2020, 369:m1435, doi: 10.1136/bmj.m1435 (April 9, 2020), had “said he hopes these first doses of the vaccine signal a long-awaited end to the coronavirus pandemic.” Dana Smith, “Frontline workers begin receiving COVID-19 vaccine at Sentara Healthcare,” 13 News Now, December 15, 2020, updated December 16, 2020.
41. “The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above the given order, as a warning reading ‘Prohibited!’” Government of Israel v. Eichmann, 36 I.L.R. 5 (Supreme Court of Israel, 1961) (quoting Chief Military Prosecutor v. Melinki, et al. (13 Pesakim Mehoziim, p. 90)), and “[i]t is to be pointed out here that even the jurists of the Third Reich did not dare to put on paper that obedience to orders is above all”. Id.
42. In criminal law, the task of the court is “to determine whether the record contains enough evidence for the triers of the facts to find beyond a reasonable doubt each element of the offenses involved. U.S. v. Calley, 22 U.S.C.M.A. 534 (1973) (citing U.S. v. Papenheim, 19 U.S.C.M.A. 203 (1970); U.S. v Wilson, 13 U.S.C.M.A. 670 (1963)).
43. Under Brady v. Maryland, 373 U.S. 83 (1963), and, with some reluctance to date, “the Government must produce ‘evidence favorable to an accused . . . where the evidence is material either to guilt or to punishment”, U.S. v. Sotomayor, Crim. No. 1:22-cr-122 (RDA), 3 (E.D. Va. Dec. 1, 2022) (citing Ibid.); see also Giglio v. U.S., 405 U.S. 150 (1972); although “Brady does not create a full-scale, constitutionally-mandated discovery right for criminal defendants.” Id. (quoting Spicer v. Roxbury Corr. Inst., 194 F.3d 547 (4th Cir. 1999)).
44. Unlike in Sotomayor, “the Government has [not], by any applicable standard, produced an immense amount of discovery for defense counsel to scrutinize”, nor might any reasonable trier of fact find that “the Government [had engaged in] “‘padd[ing]’ an open file with pointless or superfluous information to frustrate a defendant's review” or hiding Brady material “in the open file with the hope that [the defendant] would never find it.” Id. (quoting U.S. v. Skilling, 554 F.3d 529 (5th Cir. 2009), vacated in part on other grounds, 561 U.S. 358 (2010)).
45. On similar facts, one tribunal considering crimes against humanity had concluded that “[t]he excuse given by the Accused in his evidence (Session 81, Vol. IV, p. xxxx5), that all he did was to pass on a message which he received from Cracow, is not plausible,” concluding that “undoubtedly he knew the value of the tale about ‘administration of tonics,’ to which he put his signature.” Id.
46. The legislature has provided for penalties, including forfeiture of office, where a government official is guilty of malfeasance, see Va. Code § 2.2-3122[9], and the Virginia Supreme Court has held that “the institution of criminal charges, as well as their order and timing, are matters of prosecutorial discretion”, In re Horan, 271 Va. 258 (2006) (citing Bradshaw v. Commonwealth, 228 Va. 484 (1984); Commonwealth v. Sangha, 107 Va. Cir. 408A (2021)[10]; however, this context was limited to those matters where “[a] prosecutor has the discretion to decide under which of several applicable statutes the charges shall be instituted.” Id. (citing Hensley v. City of Norfolk, 216 Va. 369 (1975)).
47. Yet, while some Attorneys for the Commonwealth have boldly asserted that “no court can order the Commonwealth Attorney to charge anyone”, and “[t]he decision to charge is a discretionary duty that lies entirely within the province of the public prosecutor”, Renewed Motion for Entry of Demurrer, Webb v. Porter, Case Number CL22002367 (Alexandria Cir. August 23, 2023), over 10,000 decisions from Virginia courts appear on Westlaw, while only six discuss the controlling statute, Va. Code § 15.2-1627(B), bounding their powers, and none take that extreme position.
[1] “A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied the principles and methods to the facts of the case.” Id.
[2] “’Information’ means may information or material, regardless of its physical form or characteristics, that is owned by, produced by or for, or is under the control of the United States Government.” Section 6.1(b), Executive Order No. 12,356, National Security Information, April 2, 1982.
[3] “We inoculated nine adult rhesus macaques (6 to 12 years of age) with a total of 1.1 × 106 plaque-forming units (PFU) (Group 1; N = 3), 1.1 × 105 PFU (Group 2; N = 3), or 1.1 × 104 PFU (Group 3; N = 3) of SARS-CoV-2 administered as 1 ml by the intranasal (IN) route and 1 ml by the intratracheal (IT) route.” Id.
[4] “[M]ore than 38,000 people have indicated a willingness to volunteer by signing up with vaccine advocacy group 1Day Sooner”, William Booth & Carolyn Y. Johnson, “Britain to infect healthy volunteers with coronavirus in vaccine challenge trials,” Washington Post, October 20, 2020, but only 36 had been selected, indicative of some unknown criteria, of which 50% had been reported to exhibit expressions of illness between two and four days of being intranasally inoculated with only 10 particles of the original COVID-19 variant, Ben Killingsley, et al., Safety, tolerability and viral kinetics during SARS-CoV-2 human challenge in young adults, supra, making COVID-19 a highly contagious only to those persons.
[5] Yet And furthermore, according to federal regulatory authorities:
Anthrax is NOT contagious. You cannot catch anthrax from another person the way you might catch a cold or the flu. In rare cases, person-to-person transmission has been reported with cutaneous anthrax, where discharges from skin lesions might be infectious. Staff, “Anthrax: How People Get Anthrax,” CDC, November 20, 2020.
[6] “When Dr. Anthony Fauci spoke recently at a White House briefing about the need for COVID-19 booster shots, buried in his slideshow of charts and data points was a little-noticed scientific paper that offers evidence for a reliable way to predict how much protection a COVID-19 vaccine offers.” Id. (emphasis added)
[7] “[S]imilar outbreaks were not yet being seen in the off-campus community or neighboring counties”, Id. (citing Editors, “Coronavirus in the US: Latest Map and Case Count. The New York Times Coronavirus Pandemic webpage”, The New York Times, April 13, 2022), reasonably suggesting a location based source, not person-to-person transmission.
[8] “[T]he Provincetown outbreak did not contribute substantially to the increase in Delta cases in MA or elsewhere in the US”, Id., reasonably suggesting a location based source, not person-to-person transmission. See also Catherine M. Brown, et al., Outbreak of SARS-CoV-2 Infections, Including COVID-19 Vaccine Breakthrough Infections, Associated with Large Public Gatherings — Barnstable County, Massachusetts, July 2021, 70 MMWR 31, pp. 1059-1062, August 6, 2021, doi: 10.15585/mmwr.mm7031e2.
[9] “Any person who knowingly violates any of the provisions of this chapter shall be guilty of malfeasance in office or employment. Upon conviction thereof, the judge or jury trying the case, in addition to any other fine or penalty provided by law, may order the forfeiture of such office or employment.” Id.
[10] “As noted in Boyd v. County of Henrico, 42 Va. App. 495, 521 (2004), ‘the structure of tripartite government creates a judicial presumption in favor of ‘broad’ prosecutorial discretion.’ Thus, ‘the institution of criminal charges, as well as their order and timing, are matters of prosecutorial discretion.’ Bradshaw v. Commonwealth, 228 Va. 484, 492 (1984). See also Moore v. Commonwealth, 59 Va. App. 795, 810 (2012) (‘the prosecution is the first and, presumptively, best judge of where the public interest lies, and the trial court should not merely substitute its judgment for that of the prosecution.’).” Id.