A judge has sensationally thrown out the criminal charges against the Virginia school principal who allegedly failed to stop the first grader who shot a teacher in her classroom — suggesting that the prosecution’s case was a “mashup” of legal theories.

Former assistant principal Ebony Parker sobbed in court after Judge Rebecca Robinson tossed the charges mid-trial. Robinson found that Parker was not criminally liable for teacher Abby Zwerner getting shot by a 6-year-old student.

Prosecutors had wrapped up their case Wednesday afternoon, with the jury told to return to the Newport News courtroom Thursday morning.

But Robinson said the eight counts of child neglect that Parker faced for allegedly failing to intervene after reports the boy brought a firearm to school on Jan. 6, 2023, “is not a crime” under Virginia law. The judge noted it would be up to the legislature to make any changes.

Robinson said “there is no precedent for what is before the court,” where prosecutors seek to hold a school official responsible for the conduct of a child.

Prosecutors cannot appeal Robinson’s ruling or seek to retry her case since further prosecution would violate protections against double jeopardy. 

Legal experts said that the case put prosecutors in a rare position — trying to covict someone for a crime for failing to act. That’s the opposite of a usual criminal case, which is about proving someone’s actions, i.e. robbing someone or beating someone, violated the law.

“It’s very difficult to prosecute someone for an omission,” former prosecutor Neama Rahmani noted.

The boy’s mother, Deja Taylor, pleaded guilty in two cases to child neglect and gun charges after her son took a 9mm handgun from her purse and brought it to Richneck Elementary School. The mom is serving nearly four years in prison.

Robinson said she was “unclear” about the legal principles prosecutors used to charge Parker, including whether the eight counts were for the bullets in the gun or for the children in Zwerner’s classroom at the time of the shooting. 

The judge said that if it were for the bullets, the number of counts would have needed to correspond to the number of bullets discharged, not the amount of ammunition left in the gun. 

The boy only fired one round that hit Zwerner in her hand and chest — leaving fragments of the round in her body to this day.

“Those legal theories do not fit plausibly with the theory of the legal statute,” Robinson said. “Therefore, I do grant defense motion to strike on all eight counts of felony child abuse and endangerment.”

“What happened that day was awful,” the judge said, declining to comment further on her opinions about the incident.

The ruling came down minutes before the jury was slated to return to the courtroom to hear any defense evidence Parker’s team was going to put on before they would have been tasked with deliberating her guilt.

Earlier, Parker’s lawyer, Curtis Rogers, argued for the case to be tossed, claiming prosecutors failed to show that Parker meant to harm the children.

“Based on the information that Dr. Parker had, she made decisions,” Rogers said.

“In hindsight, those decisions actually were determined not to be the correct decision. But her decision was not an act of neglect,” the defense attorney added.

“She didn’t intend harm to the students.”

Rogers said Parker “didn’t believe there was a weapon, so that explains her conduct that day.”

But prosecutor Joshua Jenkins argued Parker’s lack of response put at least 20 students in harm’s way.

“It’s not that Dr. Parker knew there was a danger necessarily but that she should have known … there were multiple warnings by multiple people,” Jenkins argued.

“The mere fact that a weapon was on campus should have triggered the crisis defined in the crisis management plan,” the prosecutor said. “Yet, it did not.”

Parker is still on the hook for $10 million in damages to Zwerner after a civil jury last year found her negligent in failing to search the boy despite several warnings from Zwerner and others that he had a firearm.

Zwerner’s lawyers noted that the school was still fighting the civil judgment in an appeals court and that their client hasn’t received any of the payout money to this day.

“From the beginning, our focus has remained on obtaining justice in civil court for the preventable failures that led to Abby being shot. A Newport News jury has already spoken, returning a $10 million verdict in Abby’s favor,” her team said in a statement.

“Yet even today, the City of Newport News continues to resist accepting responsibility and delivering the justice that verdict represents,” said lawyers Diane Toscano, Kevin Biniazan, and Jeffrey Breit.”

Hampton Commonwealth’s Attorney, Anton Bell — whose office acted as special prosecutor against Parker — said his office wished the trial would have been allowed to end with a jury verdict.

“It was the citizens of Newport News, through the grand jury process, who determined that indictments against Ebony Parker were appropriate based upon the evidence presented,” Bell said in a statement. “We had hoped the community would have had the opportunity to weigh in through the full judicial process.”

“Nevertheless, the Court has now concluded the matter as it deemed appropriate under the law,” Bell said.

Three lawyers not connected to the case said Robinson made the correct, if uncommon, decision to grant the motion to strike the indictment, noting the charges against Parker were unique to begin with and hard to win at trial.  

Similar cases against officers accused of failing to act during the school shootings in Parkland, Florida and in Uvalde, Texas both ended with acquittals, legal expert Rahmani noted.

The ruling is “very unusual but this is an unusual case,” Rahmani said, noting it would have been more appropriate for civil court than a criminal one. 

Criminal cases usually require an “affirmative act” — meaning someone did something they shouldn’t have — rather than proving someone didn’t do something they should have, Rahmani said.

Newport News defense attorney Rich Hallenback said prosecutors had “an uphill battle” seeking a conviction of Parker.

“Ms. Parker’s conduct — as wrong as what she didn’t do was — it doesn’t really cleanly fit into any particular crime,” Hallenback explained.

Another local lawyer, Chad Roberts, said it’s normal for defense attorneys to make motions to strike at trial but those motions rarely succeed.

Still, Robinson “made the right decision,” Roberts said.

“She ruled the way she did because the alleged actions didn’t fit the crime itself,” Roberts said. “It was unclear which framework they were trying to fit into the mold.”

Parker pleaded not guilty to the criminal charges.