Some are criticizing the handling of an earlier case against Gerald Brevard

Weeks later, in December 2020, he trailed another hotel worker before running away from police and breaking into an apartment, a police report said. A police officer also found a fully loaded pistol magazine in a squad car after transporting Brevard following his arrest.

When it came time to adjudicate the case, Fairfax County prosecutors offered Brevard a deal to plead to two misdemeanors. As part of the plea deal, prosecutors decided not to charge him with possessing the magazine, which is a felony under Virginia law for anyone with a serious criminal record, as Brevard had.

Brevard served a handful of months in jail.

Brevard’s Fairfax County case has now become a political flash point, highlighting clashes between a wave of liberal prosecutors who have responded to calls for reform after the police killing of George Floyd in Minneapolis and conservatives blaming them for making their communities less safe.

In recent years, Brevard cycled through the justice systems in Virginia, Maryland and D.C., and racked up dozens of charges. He apparently served limited time, and his family said he never received proper mental health treatment for serious issues that included schizophrenia. Brevard himself was homeless at times.

“But for the decision to go lenient … he would be in prison,” Virginia Attorney General Jason S. Miyares (R) said of the Fairfax County prosecutors handling of Brevard in an interview. “Instead he went back on the street and shot five innocent victims and now two tragically lost their lives.”

Descano, a Democrat, said Miyares was cynically exploiting the tragedy for political purposes. Miyares was part of a group that announced Thursday it was starting a program to recruit conservative candidates for local prosecutors’ offices in an effort to challenge liberal prosecutors. Miyares cited the Brevard case during the announcement.

“We didn’t have the evidence necessary or even a positive ID to make out the charges as they were brought by the police and, quite frankly, the attorney general should know how the justice system works,” Descano said. “When you are faced with challenges, every prosecutor’s office in every jurisdiction in America has to do the best they can with the evidence.”

It would not be the first time Brevard was arrested in D.C. He had previously been charged with using a lead pipe to smash a car window, assaulting a police officer and trying to cut a bicyclist with a knife during an altercation. In 2019, he was accused of refusing to leave the lobby of an apartment building and locking himself in the bathroom. Many of the charges were dismissed or consolidated into a felony assault charge in 2019 to which court records show Brevard pleaded guilty. He was sentenced to a year in jail, with all time suspended, to two years probation, and mandatory substance abuse and mental health treatment.

Then, the Fairfax County case unfolded in November and December 2020.

Police were called to the Homewood Suites in Herndon for a report of an attack in late November, according to a police report.

A maid at the hotel told officers she was working on the third floor when a Black man she didn’t know came up behind her, grabbed her mouth and then pushed her into a wall. The woman told police she was dizzy afterward and fell to the ground. The man put his hand over her mouth, tried to cover her nose and then got on top of her. The woman feared the attack was a prelude to a sexual assault, so she screamed and he ran off.

Surveillance video captured the suspect, who was wearing all black.

Nearly three weeks later, Fairfax County police officers were called to the nearby Candlewood Suites in Herndon, according to a police report. A hotel worker told investigators she saw a man in black watching her from a window. He walked away, returned and then began wandering the hotel, so the worker called police.

Officers located the man and took a photo of him, before he fled to a nearby apartment building, according to a police report.

The suspect couldn’t be located, but officers determined the man at the Candlewood Suites was Gerald Brevard, the police report said. Police concluded he was also the same person seen on surveillance video from the previous attack at Homewood Suites.

Later that day, Fairfax County police officers were called back to the apartment building they previously searched, according to the police report. A man allegedly found Brevard in his bedroom after Brevard had cut a hole in a window screen, according to the report.

Brevard was located and arrested. Police later discovered the fully loaded pistol magazine in the squad car that took Brevard to the Fairfax County jail.

Police charged Brevard with abduction with intent to defile in the Homewood Suites attack. They also charged him with multiple counts of burglary at night to commit a felony and possession of burglary tools in the apartment break-in. The charges carry a minimum sentence of 25 years in prison.

After the arrest, Fairfax County police sent an email to Descano’s office urging them to oppose bond, according to a copy obtained by The Washington Post.

“Brevard is a threat to the public,” the email read.

Descano’s office did oppose bond twice and Brevard was ordered to remain in jail through the prosecution of his case.

Descano’s office ultimately offered a Brevard a deal to plead guilty to misdemeanor counts of assault and battery in the hotel attack and unlawful entry in the apartment break-in. Brevard entered the plea at a hearing in Fairfax County General District Court in March 2021.

Brevard was sentenced to serve 11 months in the Fairfax County jail, but under Virginia law jail inmates only serve half that time. He was also required to undergo substance abuse and mental health violations.

Andy Elders, the public defender who represented Brevard in Fairfax County, declined to comment on the case. The attorney representing Brevard in the case involving the killing of the homeless man in D.C. did not respond to a request for comment.

Descano said the deal was offered because the case had issues.

He pointed out the victim in the first hotel attack was not able to identify Brevard because she was grabbed from behind. There was no video evidence of the assault and investigators attempts to find fingerprints at the scene came up empty.

Descano’s office also said the burglary charge was inappropriate for the apartment break-in. The office said Brevard did not take anything from the apartment and he entered after fleeing officers at the hotel.

Rick Conway, a former chief deputy Commonwealth’s Attorney in Prince William County, said the case had challenges, but he thought Fairfax County prosecutors should have brought Brevard to trial on felony counts given the gravity of the hotel attack and his criminal history.

He thought prosecutors could have built a compelling case by using the striking similarities between the hotel incidents coupled with a strong identification of Brevard in the apartment break-in nearby to argue he was behind all three. Descano’s office doubted that idea.

“You don’t only prosecute slam dunks, especially when you have somebody who is dangerous,” Conway said. “You have to often times rely on the reasonable inferences that can be drawn from jurors.”

Conway thought Descano’s office should have charged Brevard with possessing the magazine, but Descano’s office said officers searched Brevard and did not find the magazine until it turned up in the squad car, so a possession case would be tough to make.

Descano’s office said politics are at the root of the criticisms of his office. Miyares, who was elected in November on a platform of being tough on crime, has repeatedly attacked Descano as being too soft on criminals.

Descano is among a handful of liberal prosecutors, who won office in Virginia on a platform of rooting out inequalities in the justice system and reducing mass incarceration.

“He’s using victim’s pain for political purposes,” Descano said of Miyares and the Brevard case.

Tom Jackman and Peter Hermann contributed to this report.