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Legal expert weighs in on what could come next in the Richneck shooting investigation

Newport News Commonwealth's Attorney says in his review, he does not think the 6-year-old boy accused of shooting should face an aggravated assault charge.

NEWPORT NEWS, Va. — It's been more than two months since Newport News police got the call that a 6-year-old student shot his teacher, Abby Zwerner, at Richneck Elementary School on Jan. 6.

Since then, there have been few developments in the case regarding criminal charges against anyone in the investigation. 

Right now, no one faces charges as Newport News Commonwealth's Attorney Howard Gwynn reviews the investigative report.

13News Now reported Wednesday night that Gwynn said his review shows that the law does not support charging the 6-year-old boy with aggravated assault. Gwynn didn't necessarily say the boy wouldn't face any form of penalty, but this update indicates the direction he is taking the case. 

Gwynn told 13News Now over the phone that while he is still reviewing all of the evidence gathered by NNPD, he believes it would be "problematical to assume a 6-year-old understands the criminal justice system enough to stand trial." 

The boy is accused of taking his mother's handgun from their home and taking it to the school that Friday. The boy allegedly had it on him while in his first-grade lesson when he pulled it out and shot his teacher, Abby Zwerner, once. 

The attorney representing the boy's family, James Ellenson, sent a statement in January, saying the mother had her gun safely locked away out of the child's reach. It is still unclear exactly how the boy got his hands on the gun in the first place. 

Ellenson responded to Gwynn's latest update, saying, "He's only 6. Even in a civil case, a 6-year-old cannot be contributorily negligent. It's called the tender years doctrine. So, it is obvious that a 6-year-old cannot be held criminally liable. I would also add that the parents have continued to cooperate with the authorities and hope and pray for the health of Ms. Zwerner."

Virginia Beach attorney and legal analyst, Ed Booth, said he was not surprised by Gwynn's update regarding any penalties against the boy.

"Virginia doesn't prohibit the prosecution of a child that age, as some states do, but for a number of reasons, a prosecution on those facts is just unlikely and not likely to come to any great end," said Booth.

Booth said even if the boy doesn't get charged with a crime, he could still enter a program aimed to help children like him. 

"There is a body of law in Virginia that covers children in need of services. That's effectively a court-administered supervisory program for children who are engaged in some sort of acts that are concerning, perhaps criminal, but not a true criminal prosecution," said Booth. "But without full knowledge of these facts, it's impossible to say for sure."

While Booth said the boy is unlikely to face a serious charge, the more unpredictable side is what the city's top prosecutor decides for the boy's parents in this case.

Booth said the Commonwealth's Attorney would have to take the necessary steps after he reviews the investigation and conducts interviews, depending on the charge, if any, against the parents. 

"In a case like this where there's no immediate need to place someone under arrest, what would typically be done is the Commonwealth's Attorney will screen the cases and then the prosecution can go forward," Booth explained. "Depending on the nature of the charge, that could begin in any number of ways. For a misdemeanor charge, it would not be uncommon for the person receiving the charge to receive a summons. Special grand juries are generally, typically looking for felony charges...but for a simple misdemeanor charge that would typically go before a general district court." 

Gwynn said he has not determined if the parents of the boy or anyone else should face charges in this case. He said he still has hours of police body camera footage to review in addition to Newport News police's full investigative report. 

13News Now reached out to the attorneys representing Zwerner in response to the Commonwealth's Attorney's update.

We have not heard back on that question, but the attorneys said Zwerner is still recovering from her injuries.

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