Virginia Association of Criminal Defense Lawyers


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  • 25 Oct 2021 1:20 PM | Danielle Payne (Administrator)

    Testing the waters: Defense lawyers challenge no-prosecutor trials

    By: Peter Vieth October 25, 2021

    A favorable ruling from a Fairfax County judge earlier this year encouraged Virginia criminal defense attorneys to challenge the common practice of trying misdemeanor cases without a prosecutor taking part.

    A similar bid to block a no-prosecutor trial was rebuffed by a Newport News judge last month, but there may still be more attempts to dismiss charges where a police officer and not a prosecutor would conduct the presentation of the government’s evidence.

    The Newport News judge said barring no-prosecutor trials would disrupt a “long standing and practical tradition” in Virginia courts.

    Defense lawyers are testing the waters, according to the president of the Virginia Association of Criminal Defense Lawyers. It was not clear whether a legislative change would be proposed.

    While added staff means no-prosecutor cases are now rare in Fairfax County, where the issue initially arose, the routine practice of non-commonwealth trials for traffic and misdemeanor cases continues in many Virginia courts.

    Fairfax challenge

    Traffic court regulars know the drill. The clerk calls the case, the police officer and the defendant step up, and the judge signals for the officer to relate what happened. No prosecutor is present. The judge may ask questions of both the officer and the accused offender before ruling on the case.

    “I think most jurisdictions allow misdemeanor cases to go forward without a prosecutor,” said Brad Haywood, Executive Director of Justice Forward Virginia. “They pretty much just let the police officer do it.”

    When a criminal charge carries the prospect of jail time, the situation becomes more serious.

    In the Fairfax County case, defendant Harwinder Sangha appealed a general district court judgment that included a six-month sentence for driving without a court-ordered ignition interlock device.

    Sangha’s lawyer argued the case could not go forward without a prosecutor. Fairfax Circuit Judge Richard E. Gardiner agreed, reasoning that he would exceed his judicial role by taking on the executive duties of presenting evidence. There were Brady concerns as well, because a defendant has “no meaningful mechanism” to get exculpatory information, Gardiner wrote.

    Gardiner’s March 29 decision is Commonwealth v. Sangha (VLW 021-8-049).

    Newport News challenge

    Defense lawyers now are using Gardiner’s opinion to oppose trials without a prosecutor in the courtroom.

    “It is VACDL’s opinion that Judge Gardiner’s opinion is an accurate statement of law,” said VACDL president H. Eugene Oliver III of Harrisonburg.

    “Of particular concern to us is the Brady implications and the fact that, however good their intentions may be, law enforcement cannot step into the impartial role of the prosecutor and it is a violation of due process for the courts to permit them to take that role,” Oliver said.

    In Newport News, attorney Earl J. Wheeler of Yorktown raised those arguments on behalf of a client facing a “non-commonwealth” trial. Defendant Norman Wilkerson was charged with carrying a concealed weapon, a Class 1 misdemeanor.

    Wheeler asked Circuit Judge Gary A. Mills to dismiss the charge for failure to prosecute.

    Mills acknowledged Gardiner’s analysis on the “complex legal issues” involved, but he said any encroachments on separation of powers and Brady obligations were minimal.

    “The Court finds that in the absence of the Commonwealth’s Attorney, law enforcement merely conducts the orderly presentation of witnesses without electing to assume the separate role of the Commonwealth’s Attorney,” Mills wrote.

    “As a result, the Court finds that it may exercise a limited degree of executive power, the questioning and calling of witnesses … notably without de facto violating Brady v. Maryland, as the Court may intervene by questioning to root out exculpatory evidence to facilitate a fair trial,” the judge continued.

    Mills found clear language in the code and the rules allowing adjudication of non-commonwealth cases. Ending the practice would create “disastrous public policy considerations,” the judge said. Having a prosecutor present for every misdemeanor would be “an almost impossible endeavor,” he wrote.

    Mills’ Sept. 1 opinion (designated as an order) is Commonwealth v. Wilkerson (VLW 021-8-112).

    Concerns persist

    There will be similar challenges by defense attorneys. “I can almost guarantee it,” Wheeler said. “I think Judge Mills, in this case, was in error.”

    A VACDL brief submitted in the Fairfax case argued that a complaining witness, whether a civilian or the charging officer, cannot prosecute a criminal case because it would violate a defendant’s right to due process.

    “The focus on an ‘orderly presentation of witnesses’ is not sufficient to overcome the due process issues because there is no requirement that exculpatory information be revealed, and it should not be the role of the courts to try to root out such evidence,” Oliver wrote in an email. “I have serious doubts about the efficacy of such questioning by the court. And that’s even without getting into the more nuts-and-bolts issues of cross-examination and evidentiary objections.”

    Wheeler said he understands the pressure on commonwealth’s attorneys, who often lack the resources to handle all misdemeanor cases.

    But, he said, “they have an alternative. If the commonwealth elects not to prosecute, then those matters get dropped.”

    Oliver said defense attorneys may not always want to challenge a no-prosecutor situation.

    “It is not always a disadvantage for defendants, since sometimes officers can forget to present all the information required for a conviction. I’ve won such cases before. The concern is when judges step in to fill the prosecutor’s role or when there may be exculpatory information that is unlikely to be provided absent the prosecutor’s ethical obligation,” Oliver explained.

    Court challenges may also meet with skepticism, given the long-standing and widespread practice of no-prosecutor trials for minor cases.

    “I have the sense that Gardiner is an outlier on the issue,” Haywood said.

    But defense lawyers are paying attention.

    “We are following the issue,” Oliver said. “I am not aware of any proposed legislative fixes at this point, but I would anticipate that this may very well be something that would get addressed.”

    Any “fix” would likely depend on the outcome of the Nov. 2 election, he said.

    Prosecutors not united

    Prosecutors do not speak with one voice on the issue. Fairfax County Commonwealth’s Attorney Steve Descano said in March that he welcomed Gardiner’s opinion as it reflected his view that the system works best when a prosecutor can bring a “reform-minded approach” to as many cases as possible.

    The Virginia Association of Commonwealth’s Attorneys took no position.

    “This isn’t a matter for VACA to address as an association given the misdemeanor charges a commonwealth’s attorney chooses to prosecute is an independent decision based on the jurisdiction’s needs and office’s operation,” VACA administrator Amanda Howie said Oct. 19.

    Neither Descano nor an official with the Newport News commonwealth’s attorney’s office were available for comment on the Wilkerson decision.

  • 05 Apr 2021 2:16 PM | Danielle Payne (Administrator)

    A Fairfax County circuit judge has ruled that criminal charges must be dismissed if the commonwealth’s attorney’s office declines to prosecute.

    The ruling arises from the decision by Fairfax Commonwealth’s Attorney Steve Descano not to prosecute many misdemeanor cases, often leaving the police officer and the judge to handle presentation of the state’s evidence.

    It’s a common practice around the state. Overworked prosecutors’ offices elect not to prosecute certain misdemeanors and traffic offenses, leaving police officers and judges to work out a sometimes-awkward routine of bringing out the expected testimony.

    Circuit Judge Richard E. Gardiner ruled March 29 that the absence of a prosecutor means there can be no court proceeding, at least in circuit court.

    Gardiner’s decision is not binding on other courts, or even on other judges in the Fairfax court. But the lawyer who won dismissal of an interlock violation charge hopes Gardiner’s opinion will change practices.

    The opinion is Commonwealth v. Sangha (VLW 021-8-049).

    Interlock violation

    Harwinder Sangha was charged with driving without an ignition interlock system, a common requirement for those convicted of DUI. Descano’s office determined not to prosecute the charge.

    Sangha’s legal team filed a motion to dismiss based on the election not to prosecute, but a general district judge held a trial regardless and convicted Sangha. The judge asked the police officer to “Tell me what happened,” according to defense attorney Danielle S. Brown.

    The sentence was steep. Sangha was given six months to serve and fined $1,500. When he appealed to circuit court, Gardiner invited various groups to file amicus briefs on whether the court could properly conduct a trial and what roles the police officer and judge should take.

    Prosecutor’s discretion

    Having heard the arguments of Sangha’s lawyers and reviewed six outside briefs, Gardiner said he was compelled to dismiss the charge against Sangha.

    Gardiner first determined that the commonwealth’s attorney may elect not to prosecute the charge, a Class 1 misdemeanor. A statute allows discretion as to prosecution of Class 1, 2 and 3 misdemeanors. Gardiner found no statutory authority for the court to request the commonwealth’s attorney to appear in an interlock violation case.

    Gardiner then determined that neither a law enforcement officer nor a crime victim may assume the prosecutor’s duties and concluded the court could not adjudicate the case.

    He endorsed prosecutorial discretion as an “inherent executive power” that could only be understood to mean that “a court cannot second guess a prosecutor with respect to the prosecutor’s decisions on which cases to prosecute.”

    Court’s limited role

    The court’s role under the Virginia Constitution does not extend to filling in for a commonwealth’s attorney that has affirmatively decided not to prosecute, the judge said.

    “Because a circuit court cannot exercise executive power, a court trying a criminal case can do none of the things that a Commonwealth Attorney is authorized to do,” Gardiner wrote. “Indeed, the very fact of the occurrence of a trial without a Commonwealth Attorney means that the court has stepped into the executive’s role in determining which cases should go forward because the court’s role is limited to providing a forum where disputing parties may have their disputes resolved, not to determine which cases should go forward.”

    Gardiner said the court has no authority to call witnesses and only limited authority to examine witnesses called by the parties. Even asking if anyone in the courtroom would like to tell the court anything would overstep the court’s constitutional and statutory bounds, he decided.

    Brady concerns

    Another reason for dismissal is the defendant’s rights under Brady and related rulings, Gardiner said. Without a prosecutor, “the defendant has no meaningful mechanism to obtain exculpatory information,” the judge said.

    The point was argued by the Fairfax Office of the Public Defender in its amicus brief.

    Gardiner acknowledged the burden his ruling may cause.

    “While the court is reluctant to dismiss the charge against Defendant because it would be better if what appears to be a legitimate charge was resolved on the merits and because the court is keenly aware of the consequences of its conclusion, nonetheless the court is bound by the law and cannot jump into the breach created by the absence of the Commonwealth Attorney and take on the role of the executive, even to a small degree,” Gardiner wrote.

    Anticipating more resources at his disposal, Descano – the commonwealth’s attorney – said the effect of Gardiner’s ruling will be “minimal.”

    “I welcome this opinion because it reflects the view for which I have long advocated: that the system functions best when the Office of the Commonwealth’s Attorney has the capacity to directly handle, and bring its reform-minded approach to, as many cases as possible,” Descano said in a prepared statement.

    “I am pleased that, in the three months since we briefed this case, county leaders have signaled their agreement by planning for the growth of this office – as evidenced in the FY ’22 advertised budget. In anticipation of having capacity to ethically involve ourselves in more cases, we have already begun to appear in an increasing number of the types of cases referenced by Judge Gardiner,” Descano continued.

    “As this opinion is narrow and touches only on matters in Circuit Court that are already within the scope of our operational ramp-up, its immediate effect will be minimal,” Descano said.

    Brown – Sangha’s defense lawyer – hoped the opinion changes prosecutors’ practice throughout Virginia.

    “We’re hoping that, while this is not binding, it will be considered persuasive both in Fairfax County Circuit court and all over the state,” Brown said.

    Descano’s plans should be welcome news for the Fairfax County Police Association, which reported its members have struggled to identify their roles and trial expectations in the absence of a prosecutor in the courtroom.

    Attorney Jennifer L. Leffler, who wrote the FCPA’s brief, said the association hoped the ruling will bring a change to the policy on misdemeanor prosecutions.

    Also urging an end to police officer prosecutions were the ACLU of Virginia and the Virginia Association of Criminal Defense Lawyers.

    -Peter Vieth, Virginia Lawyers Weekly

  • 25 Mar 2021 4:04 PM | Danielle Payne (Administrator)

    Virginia outlaws death penalty

    By: The Associated Press March 25, 2021

    JARRATT (AP) The governor signed legislation March 24 making Virginia the 23rd state to abolish the death penalty, a dramatic shift for the Commonwealth, which had the second-highest number of executions in the U.S.

    The bills were the culmination of a years-long battle by Democrats who argued the death penalty has been applied disproportionately to people of color, the mentally ill and the poor. Republicans argued that the death penalty should remain a sentencing option for especially heinous crimes and to bring justice to victims and their families.

    Virginia’s new Democratic majority, in full control of the General Assembly for a second year, won the debate last month when both the Senate and House of Delegates passed the measures banning capital punishment.

    Gov. Ralph Northam, a Democrat, signed the House and Senate bills in a ceremony under a tent Wednesday after touring the execution chamber at the Greensville Correctional Center, where 102 people have been put to death since executions were moved there from the Virginia State Penitentiary in the early 1990s.

    “There is no place today for the death penalty in this commonwealth, in the South or in this nation,” Northam said shortly before signing the legislation.

    Northam said the death penalty has been disproportionately applied to Black people and is the product of a flawed judicial system that doesn’t always get it right. Since 1973, more than 170 people around the country have been released from death row after evidence of their innocence was uncovered, he said.

    Northam recounted the story of Earl Washington Jr., a Black man who was sentenced to death after being wrongfully convicted of rape and murder in Virginia in 1984. Washington spent more than 17 years in prison before he was exonerated. He came within nine days of being executed.

    “We can’t give out the ultimate punishment without being 100% sure that we’re right, and we can’t sentence people to that ultimate punishment knowing that the system doesn’t work the same for everyone,” Northam said.

    Virginia has executed nearly 1,400 people since its days as a colony. In modern times, the state is second only to Texas in the number of executions it has carried out, with 113 since the Supreme Court reinstated the death penalty in 1976, according to the nonprofit Death Penalty Information Center.

    Only two men remain on Virginia’s death row: Anthony Juniper, who was sentenced to death in the 2004 slayings of his ex-girlfriend, two of her children, and her brother; and Thomas Porter, who was sentenced to die for the 2005 killing of a Norfolk police officer. Their sentences will now be converted to life in prison without parole.

    In addition to the 23 states that have now abolished the death penalty, three others have moratoriums in place that were imposed by their governors.

    Republican Del. Jason Miyares, a death penalty supporter, expressed disappointment in the new law.

    “I think fundamentally it’s going to make Virginia less safe, less secure,” said Miyares, a former prosecutor who is running for state attorney general. “You have these cases that can only be defined by cruelty. In these very few cases, I think the ultimate punishment should be available to prosecutors for the ultimate crime.”

    Robert Dunham, executive director of the Death Penalty Information Center, and a death penalty opponent, said abolishing executions in Virginia could mark the beginning of the end for capital punishment in the South, where the highest number of prisoners are put to death.

    “Virginia’s death penalty has deep roots in slavery, lynchings and Jim Crow segregation,” said “The symbolic value of dismantling this tool that has been used historically as a mechanism for racial oppression by a legislature sitting in the former capital of the Confederacy can’t be overstated.”

    During Northam’s tour of the death chamber, he was shown the wooden chair where death row inmates were electrocuted and a metal gurney where they were given lethal injections. He also saw the holding cells where they spent the final days of their lives and had their last meals.

    “It is a powerful thing to stand in the room where people have been put to death,” Northam told the crowd of lawmakers and death penalty opponents who attended the bill-signing ceremony.

    “I know that experience will stay with me for the rest of my life, and it reinforced (to) me that signing this new law is the right thing to do. It is the moral thing to do — to end the death penalty in the Commonwealth of Virginia,” he said.

    -DENISE LAVOIE, Associated Press

  • 23 Feb 2021 2:49 PM | Danielle Payne (Administrator)

    Lawmakers vote to abolish the death penalty

    By: The Associated Press February 22, 2021

    (AP) State lawmakers gave final approval Monday to legislation that will end capital punishment in Virginia, a dramatic turnaround for a state that has executed more people in its long history than any other.

    The legislation repealing the death penalty now heads to Democratic Gov. Ralph Northam, who has said he will sign it into law, making Virginia the 23rd state to stop executions.

    “There’s a realization that it is time to end this outdated practice that tends to bring more harm to victims’ family members than providing us any comfort or solace,” said Rachel Sutphin, whose father, Cpl. Eric Sutphin, was fatally shot in 2006 while working for the Montgomery County Sheriff’s Office.

    William Morva, the man convicted of killing Eric Sutphin, was executed in 2017. Two years later, Rachel Sutphin was one of 13 family members of murder victims who sent a letter to the General Assembly asking lawmakers to abolish the death penalty.

    “By voting for abolition, we are showing the way, that if Virginia — the state with the longest history and the most people executed — if we can do it, so can other states,” Rachel Sutphin said.

    Virginia’s new Democratic majority, in full control of the General Assembly for a second year, pushed the repeal effort, arguing that the death penalty has been applied disproportionately to people of color, the mentally ill and the indigent.

    “It is vital that our criminal justice system operates fairly and punishes people equitably. We all know the death penalty doesn’t do that. It is inequitable, ineffective, and inhumane,” Northam, House Speaker Eileen Filler-Corn and Senate Majority Leader Dick Saslaw said in a joint statement after the votes.

    Republicans raised concerns about justice for victims and their family members, and said there are some crimes that are so heinous that the perpetrators deserve to be executed.

    Only two men remain on Virginia’s death row. Anthony Juniper was sentenced to death in the 2004 slayings of his ex-girlfriend, two of her children, and her brother. Thomas Porter was sentenced to die for the 2005 killing of a Norfolk police officer. The repeal legislation would convert their sentences to life in prison without parole.

    During a virtual House debate Deb. 22, Republican Del. Rob Bell described those killings in gruesome detail, and said Porter and Juniper would be watching the vote from prison with special interest.

    “We have five dead Virginians that this bill will make sure that their killers will not receive justice,” Bell said.

    Porter, Juniper and their families have declined to comment through their attorney, Rob Lee, executive director of the Virginia Capital Representation Resource Center.

    “By eliminating the death penalty, governmental, political, and moral leaders have taken a long overdue action needed to make Virginia a fairer and more just Commonwealth,” Lee said in a statement.

    The passage of the legislation was just the latest in a long list of sweeping policy changes enacted by Democrats, who have increasingly reshaped the Old Dominion into an outlier in the South on racial, social and economic issues.

    Last year, lawmakers passed some of the region’s strictest gun laws, broadest LGBTQ protections, its highest minimum wage and some of its loosest abortion restrictions. This year too, lawmakers have been passing one progressive measure after another.

    But the death penalty bill marks a particularly stark reversal in a state where executions proceeded in the past decade under both Republican and Democratic governors. The state legislature and state officials have also acted in recent years to preserve Virginia’s ability to carry out executions and limit transparency around the process.

    Even last year, death penalty abolition bills in the General Assembly went nowhere.

    Both chambers approved separate but identical repeal bills Feb. 22. The Senate approved a House bill, advancing it to Northam on a 22-16 vote. Republican Sen. Jill Vogel joined with Democrats in the chamber in voting for passage. Later, House Democrats and two GOP members, Del. Jeff Campbell and Del. Carrie Coyner, voted to approve the Senate version, 57-43.

    No date has been set yet for when the governor will sign it, according to his spokeswoman.

    Historically, Virginia has used the death penalty more than any other state, executing nearly 1,400 people since its days as a colony, according to the Death Penalty Information Center. Since the U.S. Supreme Court reinstated the death penalty in 1976, Virginia, with 113 executions, is second only to Texas.

    Michael Stone, executive director of Virginians for Alternatives to the Death Penalty, called the vote to abolish capital punishment a landmark moment in the state’s history.

    “We hope that Virginia will set an example for other states from the old Confederacy to take this bold step toward the humane reform of our legal justice system,” Stone said.

    -DENISE LAVOIE and SARAH RANKIN, Associated Press

  • 19 Jan 2021 11:01 AM | Danielle Payne (Administrator)

    Virginia Senate committee backs bill to abolish the death penalty | State and Regional News |

    Over warnings it could endanger the lives of law enforcement officers, a bill that would abolish the death penalty in Virginia advanced out of the Senate Judiciary Committee on Monday, largely along partisan lines.

    Senate Bill 1165, sponsored by Sen. Scott Surovell, D-Fairfax, and supported by Gov. Ralph Northam, was reported out of committee and sent to the Finance Committee in a 10-4 vote. Sen. Bill Stanley, R-Franklin, the bill’s chief co-sponsor, was the only Republican joining the Democrats.

    More than a dozen people — including representatives of Northam’s office, the Virginia Association of Criminal Defense Lawyers, the University of Virginia Law School’s Innocence Project, the League of Women Voters and religious organizations — spoke in favor of the bill.

    Abolition proponents cited historical racial disparities in the death penalty’s use, the cost, lack of deterrence and the danger of executing an innocent person.

    Albemarle County Commonwealth’s Attorney James Hingeley said that before he became a prosecutor, he was a defense lawyer. He noted that many believe the death penalty is needed to separate out “the worst from the worst.”

    “Let me tell you, there is no way to evaluate, what is the worst of the worst. That is just not a workable way of looking at the system,” he said.

    The Virginia Association of Commonwealth’s Attorneys has not taken a position on abolition bills before the General Assembly this year. It is encouraging members to decide for themselves, said Nate Green, the Williamsburg-James City County commonwealth’s attorney and chairman of VACA’s committee on legislation, on Saturday.

    Opposing abolition at Monday’s hearing was M. Wayne Huggins, executive director of the Virginia State Police Association, who said, “We categorically oppose this bill.”

    Huggins referred to the May 2017 slaying of Michael Walter, a state police special agent, in Richmond. The killer netted a sentence of 36 years, prompting a subsequent change in state law requiring that anyone who murders a law enforcement officer receive, at minimum, a life sentence without parole.

    Last year, the Virginia State Parole Board released a man who murdered a police officer in 1979, Huggins said. “Not only are they not getting the death sentence, they’re not even getting life in prison,” he said.

    Huggins said other pending legislative proposals concerning eliminating mandatory-minimum sentences and changes with parole could allow killers of police officers to go free.

    Huggins urged any scaling back of the death penalty be done incrementally because some crimes are more heinous than others.

    “Any person who will murder a police officer will murder any member of society and we think they ought to be dealt with the most harshly,” he said.

    Former state Sen. Bill Carrico, R-Grayson, a former state trooper, supported Huggins’ remarks. “If you do go down this road, at least put a provision that law enforcement are not out there alone ... and that their families can feel like you have their back,” he said.

    “Because it would just make an open season on law enforcement if we don’t do something,” Carrico said.

    The widow of Trooper Chad Phillip Dermyer, who was murdered in Richmond in March 2016, also opposed abolition. The decision should be left up to the slain officer’s family, she said.

    However, Rachel Sutphin, daughter of Cpl. Eric Sutphin of the Montgomery County Sheriff’s Office, who was shot to death by William Morva in 2006, spoke in favor of abolition.

    “I believe the death penalty is an ineffective and outdated measure that brings no solace to family members. The state would better spend their time and their money providing resources for my family versus killing another person,” she said.

    Morva, who also killed a hospital security guard, was executed in 2017, the most recent death sentence carried out by Virginia.

    Surovell said no one supporting the abolition bill is against law enforcement or wants to put officers at any further risk.

    He said virtually all of the industrial world has abolished capital punishment. “I don’t think we aspire to stand with countries like Egypt or Pakistan or Saudi Arabia or ISIS. I think we aspire to lead the world in having a fair and humane justice system,” he said.

    --Frank Green

  • 23 Oct 2020 4:50 PM | Danielle Payne (Administrator)

    A momentous change in Virginia criminal procedure almost went unnoticed at first.

    An end to jury sentencing for criminal defendants won final approval from the House of Delegates on a Friday evening as the General Assembly brought its pandemic-driven special session to a close.

    The bill is “the most important criminal justice reform Virginia has ever seen,” said Richmond criminal attorney Steven Benjamin, who serves as counsel to the Senate Judiciary Committee.

    “It was a huge, huge step. I could not be happier,” said Brad Haywood, executive director of the advocacy group Justice Forward. He said the elimination of jury sentencing was at the top of the group’s list of priorities.

    “This is a revolutionary change in the way we do sentencing,” said lawyer and Del. Don L. Scott Jr., D-Portsmouth, as he urged House support on Oct. 16.

    “It will level the playing field for defendants against the overpowering power of the state, who has all of the resources at their disposal,” Scott said.

    Accepting congratulations from reformers after the final vote was Sen. Joe Morrissey, D-Richmond, sponsor of the proposal to give a defendant convicted by a jury the option of skipping a jury sentence recommendation. The legislation marks a “fundamental change in Virginia,” Benjamin said.

    Series of amendments

    Senate Bill 5007 amends Va. Code § 19.2-264.3 and other criminal procedure statutes to provide for jury sentencing in non-capital cases only when the accused has requested that the jury ascertain punishment. In the absence of a defendant’s request, “deliberations of the jury shall be confined to a determination of the guilt or innocence of the accused,” reads the new language for § 19.2-295.

    Since a defendant would almost never request a jury sentence, Benjamin referred to the amendments as the “abolition” of jury sentencing in Virginia.

    The bill takes effect July 1, 2021.

    ‘Jury penalty’

    Morrissey and other proponents say the change will eliminate the “jury penalty” for criminal defendants. Criminal defense attorneys often complain that prosecutors hold the upper hand in plea negotiations. A defendant may feel wrongly accused or completely innocent, but opting for a jury trial brings a high risk of a sentence far in excess of the sentencing guidelines.

    Morrissey said prosecutors routinely make plea offers with punishment well above the guidelines, knowing they can opt for a jury if the deal is rejected and expose the accused to even greater penalties. If the accused is convicted, the jury sentence almost always becomes the final sentence.

    “While judges have the power to suspend the jury sentence, few are willing to do so. And I speak from 40 years of experience,” Benjamin said.

    The result is that jury trials become a rarity, advocates said.

    “Only 1.3% of criminal cases actually go to a jury trial. That’s abysmal,” Scott said, citing 2019 figures from the Virginia State Sentencing Commission.

    “We know prosecutors use the jury as a penalty to force folks to take plea agreements,” Scott continued. “This is a very difficult decision that folks have to make even when they know they’re innocent.”

    The jury penalty puts a “chilling effect” on a defendant’s constitutional right to have a jury trial, Morrissey contended before the Senate Oct. 16.

    “Let the person who is best able to determine what the appropriate sentence is, the judge – who has sentencing guidelines, who can listen to the victim impact statement – make the final decision,” Morrissey said, describing his bill.

    The change next year will eliminate prosecutors’ jury leverage, Morrissey explained in an Oct. 20 interview. Without jury sentencing, more defendants will start taking the jury option, Morrissey said. Even if a jury convicts, the judge will sentence within the guidelines.

    “Once that happens twice to the prosecutor, what does the prosecutor start doing? He starts making plea offers that are commensurate with the sentencing guidelines. It’s that simple,” Morrissey said.


    The Virginia Association of Commonwealth’s Attorneys opposed the bill, warning that an increase in jury trials would clog the system.

    “The opposition was really a concern for the ability of the criminal justice system as it is currently staffed to handle what is likely to be a large increase in the number of jury trials,” said VACA president Jeffrey Haislip, the commonwealth’s attorney for Fluvanna County.

    “Jury trials take a lot more time and preparation to put on,” he added, speaking in an Oct. 21 interview.

    At a House of Delegates session Oct. 16, Del. Barry D. Knight, R-Virginia Beach, urged colleagues to wait for better estimates of the fiscal impact.

    “These costs could be between $50 and $200 million. Nobody knows,” Knight said. “We don’t have that kind of money in the budget.”

    Republican lawmakers raised other issues. It’s a common practice for prosecutors to consult with crime victims on the jury sentence issue, according to Del. Rob Bell, R-Charlottesville.

    “That’s been a rule in Virginia for 224 years,” he said Oct. 20. Bell also said the voice of the community in sentencing will be lost.

    “This bill takes both of those away,” he said. “We like the law the way it is,” Bell said.

    The rhetoric grew more heated as the session ended. “Felons over police. Criminals over victims. Lawlessness over safety,” the House GOP caucus tweeted after the final Oct. 16 vote.

    Counter arguments

    Advocates discounted the objections. “It’s laughable to suggest the bill will shut down the criminal justice system,” Haywood said.

    Morrissey said the cost numbers cited by Knight were baseless. “He has no empirical evidence to support that whatsoever.”

    Morrissey said prosecutors were upset because they are losing a substantial advantage.

    “They have mandatory minimum sentences. They have sentence enhancements. They have the jury penalty…. They can overcharge. And now, one of their bullying tools, the jury penalty, has been taken out of their quiver. And they’re crying,” Morrissey said.

    All agreed the change will impact Virginia criminal practice.

    “It is a huge development,” Benjamin said. “There is no more important criminal justice reform than that, because the requirement that 12 citizen jurors unanimously agree that guilt has been proven … is the most essential protection for the falsely accused.

    “And, until now, it has been an impaired protection,” Benjamin continued.

    “Is this a big deal? It’s the biggest deal there is. Is it radical? No. All it does is bring us in line with 48 other states. But it is a fundamental change in Virginia, because, since the very beginning, our system has had this flaw. But it’s now been corrected,” Benjamin said.

  • 04 Feb 2020 3:09 PM | Danielle Payne (Administrator)

    from Augusta Free Press; author: Chris Graham

    A group of current and former prosecutors are backing an effort to end capital punishment in Virginia.

    Bills are currently being considered in the House and Senate that would abolish the death penalty, both for future prosecutions and for the three men still on death row.

    No judge or jury has imposed a death sentence in Virginia since 2011.

    “The death penalty is a failed government program,” the group of prosecutors wrote in a letter to legislators that went out today. “When the modern death penalty era began in 1976, lawmakers and prosecutors envisioned a severe and consistent punishment that would keep the public safe. That has not happened.”

    The group includes 21 current and former prosecutors, including two former attorneys general and nine current or previously elected Commonwealth’s attorneys.

    The letter points to the financial strain of pursuing a death sentence, the lack of a clear deterrent effect on crime, and concerns regarding wrongful convictions.

    In the letter, the group urges legislators to support the “more cost-effective, constitutional” alternative of life in prison without the possibility of parole, stating that “[w]e do not need the death penalty to harshly punish murderers.”

    Several of the signers have prosecuted capital cases. Mark Earley, a Republican who served as Virginia’s attorney general from 1998 to 2001, presided over 36 executions during his tenure. Mike Herring, a Democrat who recently left office as the Richmond Commonwealth’s attorney and has both prosecuted and defended those accused of capital murder, also supports the repeal .

    Two statewide groups led the effort to organize prosecutor support for repeal. Justice Forward Virginia was founded in 2017 and promotes numerous criminal justice system reforms, including an end to capital punishment in the Commonwealth. Virginians for Alternatives to the Death Penalty has existed since 1991 and seeks an end to the death penalty through education, organizing, and advocacy.

  • 22 Jan 2020 1:53 PM | Danielle Payne (Administrator)

    [Virginia Lawyers Weekly, 1/22/2020; author: Maura Mazurowski]

    Democrats – led by Gov. Ralph Northam – came to Richmond prepared to rewrite many of Virginia’s criminal justice laws. But not everyone sees eye-to-eye on the best approach, even those urging reform.

    “The goal is to call attention to the many injustices that exist within the prisons and the criminal justice system,” said Lynetta Thompson, co-chair of the Virginia Prison Justice Network, at a press conference on Jan. 10.

    The meeting was held in response to Northam’s criminal justice reform he revealed earlier this month. Northam’s plan includes decriminalizing marijuana, raising the threshold amount for felony larceny and changing how the state approaches parole.

    Northam said that Virginia is not ready to legalize marijuana entirely. But his proposal would make the possession of small amounts of marijuana punishable by a $50 civil penalty. The legislation would also clear criminal records of past simple possession convictions.

    But not all Democrats are in agreement on Northam’s proposal to decriminalize marijuana. Clare Gastañaga, executive director of the American Civil Liberties Union said she cannot support the governor’s proposal – particularly House Bill 972 – because the reform would create “a whole new law” of smoking while driving.

    “We do not need a new crime that further empowers the police to engage in disparate policing,” Gastañaga said.

    Currently, the penalty for having an open container of alcohol in a car is a Class 4 misdemeanor with a $250 maximum fine. Under Northam’s proposals, the penalty for having marijuana in a car and smoking while driving is a first defense misdemeanor with up to 30 days in jail or a second defense misdemeanor with up to a year in jail, respectively.

    Gastañaga added that HB 972, introduced by House Majority Leader Del. Charniele Herring D-Alexandria, would make the possession of marijuana a criminal charge for juveniles.

    “Anything that does not move us into the direction of stopping the harm and helping to move us into the direction of remediating the effects of the war on drugs is something that we cannot support,” Gastañaga said.

    House Minority Leader Del. Todd Gilbert, R-Shenandoah, said in an interview that he is open to how society is evolving on the issue of marijuana. However, he takes issue with the “narrative” around the drug.

    “There seems to be the narrative that people are languishing in our jails for possession of marijuana,” Gilbert said. “But I think the vast majority of defendants originally charged with possession of marijuana never serve a day in jail.”

    Gilbert said he thinks Virginia should hold off on decriminalization and allow other states to “make all the mistakes” before determining what the commonwealth’s policy will be.

    Last year, Northam helped broker a compromise with Republicans that raised the state’s felony threshold from $200 to $500. He is now calling for the amount to be raised to $1,000 so Virginians don’t receive a “lifelong mark” on their records for stealing relatively low-dollar items.

    Valerie Slater, executive director of RISE for Youth Coalition, said that robbery and larceny are the charges for the majority of youth taken to adult court. She therefore promoted House Bill 274, which would raise the minimum age for being tried as an adult from 14 to 16 years old.

    “In a better world, we would not prosecute 17- and 18-year-olds as adults either. But this is at least a step in the right direction,” Slater said.

    More than half of the criminal justice advocates at the Jan. 10 press conference raised concern over parole in Virginia, including Jen Carter, co-founder of the Humanization Project.

    Carter promoted House Bill 1532, which would expand and codify the existing credit system that would lessen an individual’s sentencing through good behavior.

    Though discretionary parole does not currently exist in Virginia, it can be granted to some prisoners who meet certain criteria.

    “Keeping people in prison longer doesn’t make society safer, but making better citizens does,” Carter said.

    In 1995, the Assembly abolished parole in Virginia. But juries determining sentences were not informed of the change until 2000. As such, one of Northam’s proposals will allow inmates who were sentenced during that five-year period to be considered for parole.

    The governor also wants to extend parole eligibility for prisoners who are sick or elderly and have served 15 to 20 years in prison.

    Gilbert, a criminal defense attorney, said that while no criminal justice system is perfect, he fears Northam’s plan will push the commonwealth into a “pro-criminal direction.”

    “For every politician who thinks they see injustice or inequality for convicted criminals, they need to understand that for the vast majority of those examples there’s also a victim,” Gilbert said.

    He said that since the abolition of parole, Virginians have never been safer.

    “If we return to a situation where people are serving effectively 25% of [a sentence] before they’re released back into the community, then the community certainly is not going to be safe,” Gilbert said.

    More than 30 bills are being introduced this session that address reforms to Virginia’s criminal justice system. They include:

    • SB 103: Introduced by Sen. David Marsden, the bill provides that any person sentenced to a life term as a juvenile who has served at least 20 years of their sentence shall be eligible for parole.
    • SB 546: Introduced by Sen. John Edwards, the bill would increase the minimum age at which a juvenile can be tried as an adult from 14 to 16 years of age.
    • HB 32: Introduced by Del. Joseph Lindsey, the bill allows a person convicted of a misdemeanor or nonviolent felony to file for an expungement of court records.
    • HB 101: Introduced by Lindsey, the bill would increase the threshold amount of grand larceny from $500 to $750.
    • SB 2: Introduced by Sen. Adam Ebbin, the bill proposes the decriminalization of simple marijuana possession to a civil penalty.

    All in all, Gilbert chalks his disagreements to the governor’s proposal as a philosophical difference.

    “I’m not against minimizing the inequities that may exist, but I don’t know that you resolve those entirely through sweeping policy changes,” Gilbert said. “I worry that chipping away at the edges is a precursor to something more dramatic.”

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