VACDL News

From VLW: "Supreme Court reverses course, returns to remote argument"

Danielle Payne — Tue, 11 Jan 2022 16:36:58 GMT

Supreme Court reverses course, returns to remote argument

By: Jason Boleman January 10, 2022

The Supreme Court of Virginia announced on Jan. 3 that it will hear oral argument remotely for the January session, a reversal from its previous plan to conduct in-person argument.

“Due to concerns over the recent rise in the number of positive COVID-19 cases, its rapid transmission, and in consideration for the health and safety of participants and staff, oral arguments scheduled for the January Session of Court will be heard remotely,” the court said in a press release.

The court reversed its December decision to resume in-person argument as Virginia records record-high COVID cases due to the spread of the more contagious omicron variant of the virus.

The January session of the Supreme Court of Virginia will be held from Jan. 11 through Jan. 13. Links to live audio of the proceedings will be available at 9 a.m. each morning on vacourts.gov, which will also contain access to the dockets.

The court said in the release that it plans to resume in-person oral argument for the February/March session of court, scheduled for the week of Feb. 28.

From VLW: Judicial Emergency to extend into 2022

Danielle Payne — Wed, 15 Dec 2021 15:33:22 GMT

Judicial emergency to extend into 2022

By: Jason Boleman December 13, 2021

The Supreme Court of Virginia’s declaration of judicial emergency will extend into 2022, according to a recent order from the court.

Ordered Dec. 10, the court extended the declaration of judicial emergency in response to the COVID-19 pandemic through Jan. 5, 2022. The extension is the 32nd the court has issued since initially declaring a judicial emergency on March 16, 2020. Prior to the extension, the judicial emergency was set to expire Dec. 16.

Aside from the extension, the Dec. 10 order has no changes to the outlined COVID protocols the Supreme Court of Virginia asks local courts to follow. Courts are still asked to screen individuals entering the courthouse “if, and to the extent, recommended, by the Virginia Department of Health,” while speedy trial act deadlines will continue to be tolled. Courts are also permitted to continue to accept pleadings, orders and other documents with electronic signatures, including “those where the electronic signature is accomplished by scanning.”

The court also permits chief and presiding judges to “exercise their discretion in determining how best to safely operate their respective courts” in regards to jury trials and other COVID-19 safety protocols.

In the order, the court asks chief and presiding judges to create protocols in compliance with existing law, citing the Virginia Department of Labor and Industry’s COVID-19 standard. The standard outlines guidelines for employers on COVID-related guidelines for their place of business, including with respect to vaccination, what to do if an employee tests positive and guidance on whether face coverings should be required.

Aside from physical distancing and capacity restrictions, the most visible COVID safety protocol are face mask requirements. Per the DOLI standard, employers should require face masks for employees in areas the Centers for Disease Control and Prevention deem to have “high” or “substantial” transmission of COVID-19. As of Dec. 13, every county and independent city in Virginia is experiencing high or substantial transmission, according to the CDC.

from VLW: "Testing the waters: Defense lawyers challenge no-prosecutor trials

Danielle Payne — Mon, 25 Oct 2021 17:20:27 GMT

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.

from VLW: Judge: No prosecutor means charges must be dismissed

Danielle Payne — Mon, 05 Apr 2021 18:16:47 GMT

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

VIRGINIA OUTLAWS DEATH PENALTY! March 24, 2021

Danielle Payne — Thu, 25 Mar 2021 20:04:38 GMT

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

AP article: Lawmakers vote to abolish the death penalty

Danielle Payne — Tue, 23 Feb 2021 19:49:57 GMT

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

Richmond Times-Dispatch: VA Senate Committee backs bill to abolish death penalty

Danielle Payne — Tue, 19 Jan 2021 16:01:02 GMT

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

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 fgreen@timesdispatch.com

VLW: Assembly backs jury sentencing reform bill

Danielle Payne — Fri, 23 Oct 2020 20:50:31 GMT

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.

Opposition

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.

Coalition Launches Virginia Redemption Project

Danielle Payne — Thu, 06 Aug 2020 12:19:51 GMT

PRESS RELEASE FROM NACDL, VACDL, the ACLU of Virginia, Justice Forward Virginia and the Legal Aid Justice Center, August 6, 2020

Coalition Launches Virginia Redemption Initiative, Expanding NACDL’s Return to Freedom Project

Washington, DC (August 6, 2020) The National Association of Criminal Defense Lawyers (NACDL), the Virginia Association of Criminal Defense Lawyers (VACDL), the ACLU of Virginia, Justice Forward Virginia, and the Legal Aid Justice Center (LAJC), today announced the launch of the Virginia Redemption Project.

The Project will recruit, train, and support volunteer lawyers to assist incarcerated individuals to submit petitions to the governor for executive clemency (which in Virginia is called a conditional pardon), and for other available post-sentencing relief. A conditional pardon is an act by the governor to modify a sentence. Individuals granted a conditional pardon are given terms and conditions for early release which, if violated, can result in re-incarceration. At its core, the Virginia Redemption Project is focused on ensuring that those who are most at risk of illness from COVID-19 and who cannot afford a lawyer have access to meaningful review of their case.

On April 22, 2020, the Virginia General Assembly passed a budget amendment authorizing the Virginia Department of Corrections (VDOC) to grant early release to some incarcerated individuals who had less than one year remaining on their sentence. While this has brought relief to some individuals, many more individuals who can be safely released remain incarcerated. In May 2020, a lawsuit brought by the ACLU of Virginia and Charlottesville attorney Elliott Harding relating to the continued confinement of individuals at high risk due to the COVID-19 pandemic resulted in a settlement agreement, which not only addressed health care and hygiene needs of those being held, but promised expanded and expedited review of petitions for conditional pardons. While the remedial measures in the settlement provide hope for post-sentencing relief for thousands of vulnerable people at high risk, neither the settlement nor the legislature has provided any funding, resources, or other mechanisms to provide representation to those seeking release. This coalition was formed to address this need.

“Through NACDL’s extensive experience in supporting clemency and compassionate release projects, including Clemency Project 2014 during the Obama Administration, the NACDL/FAMM State Clemency Project, the Compassionate Release Clearinghouse, as well as other initiatives that are a part of NACDL’s Return to Freedom Project, NACDL is uniquely positioned to help with these immediate release efforts,” explained NACDL Executive Director Norman L. Reimer. “Working with our partners, NACDL aims to make the promise of redemption a reality for as many qualified candidates in Virginia’s prisons as possible.”

“The Virginia Association of Criminal Defense Lawyers is proud to join in the Virginia Redemption Project to assist incarcerated persons who are vulnerable to COVID-19 in seeking early release,” said Shawn Stout, Esq., VACDL Board Member and VACDL Emergency Response Committee Member. “The Commonwealth has not done nearly enough to protect incarcerated persons and the communities around them from the spread of COVID-19, and the virus has continued to sweep through Virginia’s prisons, jails, and detention centers. The Virginia Redemption Project will help move the Commonwealth in the right direction by ensuring meaningful review for many more people who should be released.”

“People who are incarcerated are facing a major crisis. The virus is rapidly spreading in Virginia’s prison facilities, and incarcerated people are unable to take measures to safely socially distance or protect themselves like those in the general public. Without intervention by the administration, people with serious medical issues unnecessarily locked up in prisons are most at risk of illness or even death,” said ACLU-VA Legal Director Eden Heilman. “The Virginia Redemption Project will fill the need for people who are incarcerated with serious medical issues and who need help and representation to seek their safe release.”

“Virginia’s jails and prisons are currently dealing with the effects of COVID-19 and mass incarceration, which has proven to be a deadly combination,” says Bryan Kennedy, Policy Director for Justice Forward Virginia. “This project will prove to our elected officials that many people who are currently incarcerated can be released, which will improve public health at no risk to public safety.”

“Virginia is an outlier among the fifty states in its lack of meaningful release options for sick and elderly prisoners—those people who are especially at risk of serious illness and death due to COVID-19,” said Shannon Ellis, an Attorney with the Legal Aid Justice Center. “We hear every day from incarcerated individuals and their loved ones who are living on the front lines of the pandemic’s disproportionate impact on prisons and jails. With this project, we hope to expand access to release for those who need it most desperately.”

If you are an attorney licensed to practice in Virginia and you would like to volunteer to take on one or more petitions through the Project, please click here.

If you are seeking the assistance of the Project, please click here.

This is a Project of NACDL, VACDL, the ACLU of Virginia, Justice Forward Virginia, and the Legal Aid Justice Center.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's many thousands of direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

The Virginia Association of Criminal Defense Lawyers (VACDL) is a statewide organization of over 600 attorneys whose practice is primarily focused on the representation of those accused of criminal violations. Founded in 1992 as the Virginia College of Criminal Defense Attorneys, VACDL changed its name in 2002 to reflect its affiliation and strong ties to the National Association of Criminal Defense Lawyers. VACDL's mission is to improve the quality of justice in Virginia by seeking to ensure fairness and equality before the law.

The ACLU of Virginia promotes civil liberties and civil rights for everyone in the Commonwealth through public education, litigation and advocacy with the goal of securing freedom and equality for all. For more information on the ACLU of Virginia, go to www.acluva.org.

Justice Forward Virginia is a non-partisan advocacy organization that fights for criminal legal system reform in Virginia. JFV works with legislators and other advocates to improve the laws of the Commonwealth to make our criminal legal system one that actually does justice for all who are brought into it.

The Legal Aid Justice Center partners with communities and clients to achieve justice by dismantling systems that create and perpetuate poverty. Justice means racial justice, social justice, and economic justice. Learn more at www.justice4all.org.

VLW: Discovery reforms coming July 1; Open file goes statewide

Danielle Payne — Mon, 22 Jun 2020 19:50:20 GMT

VLW article 6-22-20 Open file goes statewide; Discovery reforms coming July 1.docx

The Virginian Pilot: Chesapeake Judges blocking bond hearings

Danielle Payne — Tue, 21 Apr 2020 01:26:29 GMT

Virginia Pilot 4-18-20 Chesapeake judges denying bond hearings amid Corona virus pandemic.docx

Prosecutors call for end of death penalty in Virginia

Danielle Payne — Tue, 04 Feb 2020 20:09:54 GMT

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.

VLW: Democrats disagree on criminal justice reform

Danielle Payne — Wed, 22 Jan 2020 18:53:45 GMT

[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.”

Washington Post: Prosecutors won't pursue marijuana poss. charges in Fairfax/Arlington

Danielle Payne — Fri, 03 Jan 2020 20:43:57 GMT

By Justin Jouvenal and Rachel Weiner
Jan. 2, 2020

Adults possessing small amounts of marijuana for personal use will no longer be prosecuted in two Northern Virginia counties, new prosecutors in Fairfax and Arlington said Thursday on one of their first days on the job.
The moves fulfill campaign pledges by Fairfax County Commonwealth’s Attorney Steve Descano and Arlington County Commonwealth’s Attorney Parisa Dehghani-Tafti, who won election in November promising sweeping criminal justice reform.

Both Descano and Dehghani-Tafti said pot possession prosecutions do little to protect public safety, disproportionately fall on people of color, saddle defendants with damaging convictions and drain resources that can better be spent on more serious crimes.

But the policy changes angered some critics who said the prosecutors were overstepping their authority and drew sharp questions from at least one Fairfax County judge.

Descano said the policy brings Fairfax County’s values into the courthouse. "I traveled around Fairfax County for over a year listening to people,” Descano said. “The thing that came up time and time again was simple possession of marijuana — how it was a waste of resources and led to unjust outcomes.”

Dehghani-Tafti’s office expressed a similar sentiment in a motion to the court. “In a world of limited resources, it is the Commonwealth’s position that these should be directed towards more serious felony offenses, towards offenses against people and their property, and towards investment in programs that demonstrably reduce recidivism,” the filing read.

Prosecutors in Fairfax will continue to pursue cases against people distributing marijuana and conspicuous public consumption of pot, Descano said. He said his office will make a case-by-case determination regarding whether the facts qualify as “simple possession” of marijuana.

In motions to dismiss three cases, Dehghani-Tafti said her office will examine each marijuana possession case and absent aggravating factors will not pursue prosecution. Such cases made up 14 percent of arrests and 10 percent of prosecutors’ caseload in Arlington last year.

Her office moved Thursday to dismiss a simple marijuana possession charge and downgraded another drug charge against the same defendant from a felony to a misdemeanor. Arlington Public Defender Brad Haywood said he and other defense attorneys said they were also getting copies of discovery materials, after years of fighting the previous commonwealth’s attorney over access.

“During plea negotiations, we have also already noticed an increased openness to mitigating facts, such as a defendant’s mental illness, struggles with substance use or the collateral consequences of a criminal conviction,” Haywood said.

The new policy quickly hit a speed bump in Fairfax County on Monday morning in the first case in which it was applied. Chief Deputy Commonwealth Attorney Terry Adams told Fairfax County General District Court Judge Mark C. Simmons that the government was dropping a possession charge against a defendant named Jose Diaz.
Adams gave a long statement about the problems the office saw with marijuana prosecutions. Simmons indicated he was skeptical of a blanket policy of dropping all marijuana possession cases, before denying the request to dismiss the case against Diaz, who did not have an attorney.

“In this court, everything is individualized,” Simmons said.

Simmons later reversed course and dismissed the possession charge against Diaz, after a public defender stepped in to represent him. Possession charges were also dismissed against five other defendants.
Sang Lee, of Centreville, who spoke limited English, was clearly relieved after his possession case was dismissed. Outside the courtroom, Lee asked if marijuana had been legalized, before a reporter explained that it had not.

“I feel awesome,” Lee said.

Fairfax County police said they have no immediate plans to change how they will enforce marijuana possession, but referred all other questions back to Descano’s office. Two Fairfax County police unions declined to comment on the policy.

While simple marijuana possession alone has not yet come up in an Arlington court, Arlington Coalition of Police President Scott Wanek said some officers already feel Dehghani-Tafti has been too lenient in other cases. He cited cases, including traffic cases and an assault case, where he said charges were reduced.

Wanek said officers are discussing pursuing their own misdemeanor cases in court. Virginia law allows such a move, but the Arlington police chief has said he would not make such a policy lightly. Descano said he has not heard of similar plans in Fairfax.

Amy Ashworth in Prince William County, who replaced longtime prosecutor Paul Ebert, said she plans to approach those charges on a case-by-case basis. Buta Biberaj, who took office in Loudoun County on a liberal platform, did not respond to requests for comment on her plans for marijuana prosecution.

State Sen. Mark Obenshain (R-Harrisonburg), who sits on the Courts of Justice committee, said Descano and Dehghani-Tafti are required to prosecute marijuana possession cases under the oath they swore to uphold the law.

“It is a problem when prosecutors unilaterally decide that because they disagree with a law they aren’t going to enforce it,” Obenshain said.

L. Steven Emmert, an attorney focusing on appellate issues, said the legality of the prosecutors’ moves remains untested. He said Virginia’s Supreme Court has never ruled directly on the topic.

“It presents an interesting separation of powers issue,” Emmert said. “In theory, a prosecutor should be able to say I’m going to choose which of these crimes I’m going to prosecute — that’s prosecutorial discretion — but what these prosecutors are doing is essentially deciding not to prosecute a whole class of offenses. That’s where the separation of powers issue comes in. The legislature has the power to say what’s illegal.”

There has already been some legal wrangling in this area.

Early last year, the Norfolk commonwealth’s attorney announced that he would stop pursuing circuit court appeals of marijuana possession cases because of the racial disparity among those charged.

The effort angered some circuit court judges, who said he was trodding on legislative turf. The judges refused to dismiss the charges in some cases, so prosecutor Greg Underwood asked the Virginia Supreme Court to compel the judges to do so. In May, the Supreme Court sided with the judges.

The Virginia legislature will take up bills that deal with decriminalizing and legalizing marijuana among a spate of other criminal justice reforms.

The policy changes in Fairfax and Arlington bring the counties more in line with some surrounding jurisdictions. Alexandria created a pot diversion program last summer. In 2015, the District legalized possession of marijuana under certain circumstances.

In Montgomery County, State’s Attorney John McCarthy’s office has not prosecuted personal possession marijuana cases since the state decriminalized pot possession about six years ago, he said. His office, more recently, also has scaled back prosecution of small “distribution cases” that, in reality, are no more than one friend selling a joint to another friend.

“Judges don’t want to see these de minimis marijuana cases. Juries don’t want to see them,” McCarthy said. “Jurors were telling us: ‘Why are you wasting our time with this?’ ”

Roanoke Times: Criminal justice reform gets bipartisan support

Danielle Payne — Fri, 03 Jan 2020 20:30:18 GMT

Va. Democrats are pushing for criminal justice reform, and Republicans are excited and anxious as session nears

By Amy Friedenberger amy.friedenberger@roanoke.com
Jan 2, 2020

Reinstating parole, marijuana decriminalization and reducing youth incarceration are just a few of the criminal justice issues Democrats are eager to tackle when they take control of the Virginia General Assembly next week. The Democrats’ promise to bring criminal justice reform to Virginia has Republicans both excited and nervous.

“Mandatory minimums and lock them up and three strikes, those days are gone because it’s been shown those measures aren’t effective,” said Sen. Bill Stanley, R-Franklin, who has been a persistent advocate for policies that create a fairer and more equitable justice system. “What we need in criminal justice reform is to temper justice with mercy. But I do worry about swinging too far with criminal justice reform.”

The national conversation about mitigating crime has evolved in recent years, toward evidence-based and common-sense approaches to public safety while questioning the effectiveness and humaneness of tough-on-crime policies.

Common ground on issues

Criminal justice reform is one area that is politically bipartisan. On the left, liberals often talk about racial and gender disparities involving who is arrested and sent to prison. On the right, fiscal conservatives point to inefficient taxpayer dollars use in investigating and prosecuting certain crimes, or a simple marijuana possession conviction barring someone from getting a job and opening the door to receiving government assistance.

“It’s important to be smart on crime so that our law enforcement can target the most important things and we can best spend our taxpayer money,” said Sen. David Suetterlein, R-Roanoke County.

This was his motivation behind getting the felony threshold for larceny and other property crimes increased from $200 to $500 in 2018.

It’s also his logic behind a bill he’s reintroducing that would raise from 80 to 85 mph the threshold for reckless driving in areas of Virginia where a 70 mph limit is posted. If a police officer clocks a driver going over 80 mph in Virginia, that person faces a misdemeanor charge that can carry up to a year in jail or a $2,500 fine. Suetterlein said a person will likely hire a lawyer and the charge will be reduced.

“We should be passing laws we expect to be enforced, and having laws like an artificially low felony threshold for larceny or overly strict speed limits that can be argued down by attorneys doesn’t serve the taxpayer or the general public,” Suetterlein said.

However, Democrats and Republicans part company on certain issues including controlling the proliferation of guns and gun violence, but agree there are many others issues with bipartisan support.

Stanley, a lawyer, is sponsoring for the third time a bill to repeal a law that suspends the driver’s licenses of those that don’t promptly pay their court debts. Evidence has shown the current process disproportionately hurts poor and minority drivers.

Republicans in the legislature have been pushing bills for years that would allow people to seek expungement of certain convictions, such as underage alcohol possession and marijuana charges. They’ve filed expungement legislation again for this upcoming session.

“We want to create a balance so when someone enters the criminal system, they aren’t exiled, and when they return to society, they are welcomed back as productive members and not continued to be penalized for their mistakes,” Stanley said. “When someone is caught with a minor pot conviction, that person will interview for a job, undergo a background check, and then be cast aside. Mistakes of youth shouldn’t be paid for in maturity of adulthood.”

Lawmakers have pointed to a handful of tough-on-crime Republican members of the House of Delegates who have been able to halt similar bills from moving forward by bottling them up in committees.

Appetite for change

Del. Charniele Herring, D-Alexandria, the incoming House Majority Leader, will chair the House Courts of Justice Committee, and said there is an appetite for change.

“We’re not going to be soft on crime, but we want our judicial system to be more efficient and more fair,” she said last month.

Democrats have filed more than two dozen criminal justice bills so far, including measures abolishing the death penalty and decriminalizing or legalizing simple possession of marijuana. There’s an emphasis on juveniles, with proposals such as exempting students from a disorderly conduct charge if they misbehave at school or on a school bus and creating an avenue for parole for juveniles sentenced to life in prison.

Sen. John Edwards, D-Roanoke, who will chair the Senate Courts of Justice Committee, filed a bill to bring back parole. The General Assembly abolished parole in 1994, requiring felony offenders to serve at least 85% of their sentences, with the potential to earn good-behavior credits toward an early release date.

Edwards points to several issues with the elimination of parole, such as the high cost to the commonwealth in providing health care for geriatric inmates.

“And there’s a humanity issue,” said Edwards, a former U.S. Attorney. “People deserve a second chance.”

Del. Rob Bell, R-Albemarle, who has been the chair of the House Courts of Justice Committee, cited the commonwealth’s low violent crime rate, low recidivism rate and safe schools as indicators that the current parole laws are useful. Violent crime has declined dramatically across the country for nearly three decades, but researchers haven’t been able to agree on why it’s been happening.

“Those policies that would make our schools more dangerous or result in the early release of violent offenders are the ones that are certainly causing the most unease among those of us who have made public safety a priority in the last few years,” Bell said.

Roanoke Times: Sen. Bill Stanley honored for years of work on criminal justice reform

Danielle Payne — Fri, 03 Jan 2020 20:29:07 GMT

By Amy Friedenberger amy.friedenberger@roanoke.com
Oct 18, 2019

Sen. Bill Stanley, R-Franklin

Richmond Times-Dispatch |

The Virginia Association of Criminal Defense Lawyers awarded this week its "Champion of Justice" honor for the first time in more than a decade to state Sen. Bill Stanley.

The organization wanted to recognize Stanley, R-Franklin, for his years persistently fighting for a fairer and more just criminal justice system.

Stanley is a criminal defense attorney and has served in the Senate since 2011. He has proposed numerous criminal justice reform bills.

Among the bills the association highlighted was one in 2017 to require that police reports, witness lists and witness statements be provided to the defense before a trial. That bill overwhelmingly passed the Senate, but a Republican-controlled House of Delegates Courts of Justice subcommittee known for killing criminal justice reform legislation blocked it from moving forward.

The next year, Stanley submitted the same legislation, which prompted the Supreme Court of Virginia to adopt new rules by the Virginia State Bar to effectively accomplish what his bill set out to do. The adoption marked one of the most substantive changes to criminal discovery in Virginia in over three decades.

The association praised Stanley for his ongoing fight to end the practice of suspending driver's licenses of anyone who doesn't promptly pay court fines and costs. Stanley has called this essentially a "debtor's prison." After the same bill-killing House subcommittee thwarted his bill from passing this year, Stanley worked with Gov. Ralph Northam to temporarily halt the practice.

If re-elected next month, Stanley is expected to continue to work on finding a permanent solution to the problem.

The group also noted his bill this year that would have given more recourse to people convicted of crimes on the basis of “junk science." The bill would allow people to challenge their criminal convictions on grounds that advances in forensic science now exonerate them or that the forensic science technique has been discredited. A House appropriations subcommittee killed the bill, citing financial concerns.

Justice reform bills expected; new proposals from AG Herring

Danielle Payne — Thu, 05 Dec 2019 20:24:43 GMT

[excerpt from Virginia Lawyers Weekly article by Peter Vieth, 12-2-19]

Democrats are eagerly making legislative wish lists as they anticipate their new-found dominance in the halls of state government when the General Assembly convenes Jan. 8.

On Nov. 18, Attorney General Mark R. Herring announced his priorities for “a more just, equal, and fair criminal justice system,” including cannabis reform, cash bail reform and more pathways to record expungement.

Legislators began pre-filing bills the same day, including a measure to allow bad faith liability in UM/UIM cases and another to expand workers’ compensation coverage for occupational diseases.

Sen. John Edwards, D-Roanoke, the new chair of the Senate Courts Committee, said he anticipates criminal justice reform proposals including reinstating parole, eliminating mandatory minimum sentences and expanding criminal discovery.

Gun control legislation is likely to become a lightning rod for advocates on both sides.

At press time, Democrats still had not made an announcement on who will chair the House Courts Committee.

Herring proposals

Herring said his criminal justice agenda will help move the state “away from mass incarceration, eliminate racial disparities in outcomes and access to justice and improve public safety while saving taxpayers money.”

In a news release, he said the combination of the new Democratic Assembly majorities and the “growing slate” of reform-minded commonwealth’s attorneys offers a potential “once-in-a-generation opportunity” to create a criminal justice system that is more just, fair and equal.

He pledged to work for decriminalization of possession of small amounts of marijuana and to move toward legal, regulated adult use.

Herring said cash bail, in its current form, can bring “bizarre outcomes where dangerous people with money can go free while nonviolent people sit in jail for days, weeks or months because they can’t afford to pay bail.”

Herring said he expects a version of a “Clean Slate” law to be proposed.

“Virginia is one of the nation’s least forgiving and most restrictive states for individuals who have earned the opportunity to have old convictions and charges expunged from their records,” he said.

An early bill, House Bill 50 from Del. Mark L. Cole, R-Fauquier, would expand expungement opportunity for those granted a simple pardon.

Edwards also said he anticipated an effort to further increase the grand larceny threshold.

Early legislation

Sen. Scott A. Surovell, D-Fairfax, proposes to create a public defender office for Prince William County and the cities of Manassas and Manassas Park. His Senate Bill 72 would open the first new PD office in about 10 years. He said after start-up costs, he believes the creation of a PD office for the fast-growing county would be “budget-neutral” with the reduction in court-appointed payments.

Surovell wondered if PD offices might win support in Chesterfield and James City counties.

VLW: 'Haystack' duty for prosecutors is rejected

Danielle Payne — Tue, 05 Nov 2019 19:16:51 GMT

by Peter Vieth, Virginia Lawyers Weekly November 4, 2019

ALEXANDRIA – The Supreme Court of Virginia will not enact language in the Virginia Rules that would require prosecutors to disclose “particular evidence” they know of that could help a criminal defendant. The court balked at a bar recommendation opposed by prosecutors.

A leader of the criminal defense lawyers’ organization called the court’s action “unconscionable.”

In March, on a 47-13 vote, the Virginia State Bar urged adoption of the proposed comment to Rule 3.8 of the Rules of Professional Conduct over the objections of many prosecutors. Advocates said the proposed language clarified that prosecutors should not make a “document dump” on defense counsel without pointing out any potential exculpatory information known to the prosecutor.

The proposal was commonly known as the “needle in the haystack” measure for requiring the identification of helpful information in a morass of discovery.

The proposed rule comment addressed a prosecutor’s reported disclosure of 200 hours of jailhouse phone recordings without specifying where a defendant had made helpful statements.

In an Oct. 24 order, the court declined to adopt the bar’s recommendation.

“Upon consideration of the said petition and the numerous comments submitted in response thereto, the Court rejects the proposed amendment,” the order read. The comments to the court were dominated by prosecutors’ letters in opposition.

Opposition by prosecutors

The effort to get official guidance on the issue started with a draft legal ethics opinion and later emerged as a proposed comment to Rule 3.8.

Prosecutors strongly opposed any suggestion that they had a duty to identify each and every piece of potentially exculpatory information, and many wrote to the Supreme Court this year.

That purported duty of identification “ignores the reality of day-to-day criminal law practice,” said Roy F. Evans, president of the Virginia Association of Commonwealth’s Attorneys. In a May 15 letter to the Supreme Court, Evans said many prosecutors in Virginia provide “open file” discovery because it is the most efficient and cost-effective method of meeting discovery and exculpatory evidence obligations.

“But if we were to also have a duty to direct a defendant to each piece of exculpatory evidence, this efficiency would be tossed out the window. Prosecutors under such a burden might well choose to provide only rule-based discovery rather than open file discovery,” Evans said.

“It is our opinion that ‘disclosure’ is synonymous with ‘production.’ If a prosecutor produces to the defendant all exculpatory evidence, he is not under some additional constitutional duty to ‘highlight’ that evidence as well,” Evans continued.

More than 25 prosecutors sent comments to the Supreme Court, endorsing Evans’ position or a similar statement from Suffolk Commonwealth’s Attorney C. Phillips Ferguson. Also writing to oppose the proposal were the two U.S. attorneys in Virginia and the head of the Justice Department’s Office of Professional Responsibility.

The National Association of Criminal Defense Attorneys and several public defenders endorsed the change.

Reaction

After the Supreme Court’s rejection of the haystack duty language, the VACA said it was grateful the court listened.

“Our concerns were threefold,” said VACA executive director Michael Doucette. “One, this proposal would have greatly increased the workload of every prosecutor in Virginia. Not only would we have to meet our constitutional duty of ‘producing’ exculpatory evidence (which we fully endorse) but would need to ‘identify’ each piece of it as well,” Doucette said.

“At the same time, this proposed Comment would have done nothing to alleviate the amount of time defense counsel would need to take to review the material the prosecutor produced. Defense counsel would still need to review every page of discovery produced to see if it contained information that could be used effectively to promote the defense’s case theory at trial,” Doucette said.

“Two, this proposal would have expanded the ethical and disciplinary rules dealing with exculpatory evidence beyond how they have been interpreted by the courts. Such a dichotomy could create confusion and inconsistency among prosecutors in carrying out their duties to disclose this evidence,” Doucette continued.

“Three, the proposed Comment 5 could have been used to encourage disciplinary litigation. A broader interpretation of Rule 3.8(d) invited the use of an ethical rule as a tactical weapon in criminal litigation,” Doucette said.

Supporters of the proposal were disappointed.

“What possible reason would there be to allow them under the ethics rules to hide exculpatory evidence?” asked criminal defense lawyer John K. Zwerling at an Oct. 25 VSB meeting in Alexandria.

The president of the Virginia Association of Criminal Defense Lawyers said the court’s action is “unconscionable.”

“The Supreme Court’s order is yet another instance of the government generally, and the courts specifically, failing to hold prosecutors responsible for their failures to provide constitutionally mandated evidence and information to the defense,” said VACDL president Glen F. Koontz in a statement Oct. 29.

“Apparently it is unfair to require the prosecutors to sift through mountains of evidence that are within their possession and control, but perfectly fine to expect overworked and underfunded defense lawyers to do so. The result is more unfairness to those accused of crimes in our Commonwealth, in what is already an unfair system,” Koontz said.

Richmond lawyer Eric M. Page, immediate past chair of the VSB Ethics Committee, led the two-year effort to enact official language saying that a “needle-in-a-haystack” discovery maneuver is unethical.

“This is disappointing but not unexpected,” Page said Oct. 24. “It is very difficult to move the Supreme Court on matters opposed by prosecutors, even when the proposal is reasonable, justified and fully consistent with current obligations of prosecutors.”

Virginia Lawyers Weekly: VACDL honors Stanley, Ramseur

Danielle Payne — Tue, 05 Nov 2019 18:54:24 GMT

VACDL honors Stanley, Ramseur

By: Virginia Lawyers Weekly November 5, 2019

The Virginia Association of Criminal Defense Lawyers has awarded its Champion of Justice award to state Sen. William M. Stanley Jr., R-Moneta, noting his efforts to promote reform of criminal discovery rules. The VACDL also praised Stanley’s criminal defense practice.

“Sen. Stanley’s razor-sharp intellect and formidable persuasive abilities have prevented injustices and promoted mercy for his clients for over two decades,” the group said in a news release.

The VACDL Champion of Justice Award honors a Virginian who has proven to be a champion for a fairer and more just criminal justice system in the commonwealth, through judicial actions, policy actions or community-based reforms. This is the first time the award has been given since 2006.

Stanley was specifically recognized for his leadership in winning passage of new discovery rules. VACDL also pointed to his persistent advocacy for an end to suspension of driving privileges for failure to pay court costs. Stanley also promoted relief for those convicted based on so-called “junk science,” advanced discovery of police body cam video and urged reform of penalties for first-time marijuana offenders.

The VACDL awarded its “Drewry Award” to defense attorney and former VACDL president Douglas A. Ramseur. Ramseur has worked for 17 years as a Virginia capital defender. He has now opened his own private practice in Richmond

The award is named for the late B. Leigh Drewry Jr. of Lynchburg. The awards were presented at the group’s meeting last month in Harrisonburg.

VLW: Helps needed on time-consuming police footage [body-worn cameras]

Danielle Payne — Mon, 21 Oct 2019 19:27:54 GMT

Virginia Lawyers Weekly, reporting on the need for increased funding, personnel, manhours and compensation for court-appointed counsel and Public Defenders to review and analyze the body-worn camera footage received in discovery.

VLW 10-21-19 Help needed on time-consuming police footage.docx

Virginia Lawyers Weekly: Lawyers, litigants struggle at balky clerk's office

Danielle Payne — Thu, 03 Oct 2019 19:45:08 GMT

VLW Article 3-9-19 Lawyers struggle at balky clerk's office.docx

Public Defenders press for pay equity

Danielle Payne — Mon, 30 Sep 2019 20:41:23 GMT

https://www.virginiamercury.com/2019/09/30/most-public-defenders-in-richmond-make-less-than-a-secretary-in-the-prosecutors-office-they-want-a-raise/

Police body cameras are capturing so much footage it’s driving some defense attorneys to quit

Danielle Payne — Mon, 09 Sep 2019 18:03:02 GMT

From The Virginian-Pilot:

https://www.pilotonline.com/government/local/vp-nw-body-camera-footage-attorneys-workload-20190908-jqpd7sr4qffz3jgtjhjoqn3vyy-story.html?fbclid=IwAR236vHxWMNHcfEe4NjJ4DkFyRqK07nko-QcYRhe6bMYp2HrYAAPiA43CWw

Judge Orders New Trial After Witness Testimony Is Questioned

Danielle Payne — Thu, 28 Feb 2019 19:30:52 GMT

Judge orders new trial in murder case over issues with witness.pdf

[VACDL Member in the News: David Hargett]

Judge Kicks Verdict Over Disputed Scientific Evidence

Danielle Payne — Thu, 28 Feb 2019 19:27:43 GMT

Judge Kicks Verdict Over Disputed Scientific Evidence-VLW 2-28-19.pdf

[VACDL Members in the News: Steve Benjamin, Cary Bowen, Betty Layne DesPortes]

Judge Moon grants injunction to stop DMV automatic license suspensions

Danielle Payne — Sat, 22 Dec 2018 17:08:15 GMT

RICHMOND (AP) -- A federal judge has granted an injunction to stop Virginia's Department of Motor Vehicles from enforcing a law requiring automatic license suspensions for failure to pay court fines.

U.S. District Judge Norman Moon ordered DMV Commissioner Rick Holcomb to remove suspensions on three plaintiffs' licenses and $145 penalties to reinstate their driving privileges.

The Richmond Times-Dispatch reports the ruling came Friday, three days after Gov. Ralph Northam criticized the agency's enforcement policy.

Angel Ciolfi is director of the Legal Aid Justice Center, which joined a law firm in contesting the matter. She described the ruling as a "victory for the Constitution and for common sense."

Attorney General Mark Herring's spokesman says the office will "take the time needed to consider the judge's opinion" before deciding how to proceed.

Richmond Times-Dispatch: Authorities, Defense divided on discovery

Danielle Payne — Wed, 15 Aug 2018 18:40:59 GMT

Richmond Times Dispatch Discovery article 8-12-18.pdf

Authorities, defense lawyers and others divided on proposals to increase information shared prior to criminal trials

(click link above for full article text)

VLW article: High Court Mulls Reforms in Criminal Discovery

Danielle Payne — Tue, 03 Jul 2018 15:00:22 GMT

High Court Mulls Reform in Criminal Discovery

VLW High Court Mulls Reforms in Criminal Discovery article 7-3-18.pdf

Thank you to the VACDL members who submitted comments, many of whom who are quoted in the article! And, of course, special thanks to Doug Ramseur for his continued efforts to push for discovery reform in our Commonwealth.

What We Have Here Is A Failure To Imaginate: On Prosecutors And Secret Agreements

Danielle Payne — Mon, 02 Jul 2018 15:09:20 GMT

What We Have Here is a Failure to Imaginate

Prominent DC attorney Justin Dillon (and VACDL Spring Seminar 2018 speaker!) wrote an article for Above the Law, after reading The Daily Press story on David Lee's discovery of "memorandums of understanding" between police, state prosecutors and expert witnesses in child abuse cases.

VACDL is continuing to investigate this matter, so stay tuned...

Justin Dillon is a partner at KaiserDillon PLLC in Washington, DC, where he focuses on white-collar criminal defense and campus disciplinary matters. Before joining the firm, he worked as an Assistant United States Attorney in Washington, DC, and at the Civil Rights Division of the Justice Department. His email is jdillon@kaiserdillon.com.

CHKD "secret" agreement to help prosecute cases brought to light

Danielle Payne — Mon, 11 Jun 2018 15:32:01 GMT

http://www.dailypress.com/news/crime/dp-nws-chkd-police-prosecutors-20180514-story.html

Thank you to David Lee, one of VACDL's Past Presidents, for bringing this issue to our attention. VACDL has indeed filed FOIA requests and the documents received will be posted within the Member's Only section.

Supreme Court rules today: the automobile exception does not apply to vehicles parked within the curtilage of a home

Danielle Payne — Tue, 29 May 2018 15:48:26 GMT

[USA TODAY, author: Richard Wolf]

The Supreme Court ruled Today [May 29, 2018] that police generally cannot enter private property to search a motor vehicle without first obtaining a warrant.

The 8-1 decision overruling three lower courts was written by Justice Sonia Sotomayor. Justice Samuel Alito dissented, calling a Virginia police officer's actions reasonable when he walked up a private driveway to confirm that a motorcycle had been stolen.

Ryan Collins was arrested for possessing the stolen motorcycle, which had outrun Virginia police twice in 2013. The high court ruled that same year that police need a warrant to search outside a private home, but automobiles are exempt if a crime is suspected. In Collins' case, the two precedents collided.

"The automobile exception does not permit an officer without a warrant to enter a home or its curtilage in order to search a vehicle therein," Sotomayor ruled.

During oral argument, Chief Justice John Roberts said motor vehicles don't get the same privacy rights as houses because they can be driven away at a moment's notice. To make his point, he cited the famous race car from the 1986 film Ferris Bueller's Day Off — mistakenly recalling it as a Porsche when in fact it was a 1961 Ferrari 250 GT California Spider.

But Roberts joined Sotomayor's opinion Tuesday, leaving only Alito in dissent.

"An ordinary person of common sense would react to the court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with the reality of everyday life," Alito said, quoting Charles Dickens. "If that is the law, he exclaimed, 'the law is a ass — a idiot.'"

The Supreme Court in recent years has been a firm defender of the Fourth Amendment protection against unreasonable searches and seizures. It has held that police cannot use GPS equipment to track vehicles or search cellphones without a warrant. Earlier this term in a pending case, the justices voiced concerns about government monitoring of suspects by tracking the location of the cellphones.

VACDL Member Buddy Weber of Charlottesville was counsel for Collins

DFS Free Forensic Courses this Fall

Danielle Payne — Tue, 22 May 2018 17:49:24 GMT

[VIRGINIA LAWYERS WEEKLY, author Matthew Chaney]

The Virginia Department of Forensic Sciences will host a series of free courses on DNA for law professionals this Fall in four locations across the state.Representatives from the DFS said they are offering the courses in an effort to better train defense attorneys, prosecutors and judges, so that they might better utilize forensic information at trial.

“Really it’s designed to help the attorneys and judges who have to use and evaluate forensic science testing in their cases to have the background to understand the methods and practices of a particular discipline,” Katya Herndon, the chief deputy director of the DFS, said.

Richmond Circuit Court Judge Bradley Cavedo said the courses also offer a more cost-effective way for defense attorneys to learn about countering DNA evidence.

“We get requests from defense attorneys all the time to appoint a DNA expert so they can get into the science and know what questions to ask in cross examination,” Cavedo said. “With this knowledge and background they can do that and not have to request thousands of dollars.”

It came from Arizona

The idea for the forensics courses for law professionals originated at a conference in Arizona, which leads the nation in forensic science education. A DFS representative brought the idea back to Virginia and pitched it to a group of 35 stakeholders representing public defenders, commonwealth’s attorneys, private defense lawyers and medical examiners. The group expressed overwhelming interest and set to work organizing and planning the program.

The group chose to offer four limited courses on one subject in the program’s first year due to limited resources. “We wanted to start with a pilot project in one discipline,” Herndon said. “It soon became pretty apparent that this was something people were excited about.” As a result of surveys and group discussion, the group landed on DNA as the first topic of study.

The case for DNA

While interest in DNA was not universal, representatives from the group said the topic was a consensus pick based on the lack of current understanding surrounding it.

“DNA is very complicated. Most attorneys don’t have a background in science, so learning about DNA is challenging,” Virginia Association of Criminal Defense Lawyers stakeholder Bryan Jones said. “Going to the lab and being able to learn hands-on with the forensic scientists working in the lab is a great way to better understand the scientific evidence.” Cavedo said that he thought the group chose DNA because it comes up so often in courtrooms. “In the Circuit Court we see DNA cases over and over and over,” Cavedo said. “Everybody agreed, if there’s one thing we can afford to know more about, it’s DNA.”

Since the idea behind the program is to inform law professionals about a breadth of forensic information, organizers say they plan to create lessons on different forensic topics in future years, depending on demand. “The plan was to start training on a single subject in all four labs,” Herndon said. “The hope is that we’ll expand and add subjects down the road.”

For now though, since the program is relying on existing staff to lead the programs, the courses will be limited to DNA.

Other topics

Maria Jankowski, the deputy director of the Indigent Defense Commission said that while majority ruled on the topic choice, she hopes crime scene investigation is considered for future courses. “As a defense attorney, I have the least amount of knowledge in that regard,” Jankowski said. Other noteworthy topics that are being discussed for future programs include firearms forensics, toxicology, drug screening, blood evidence and digital forensic evidence training.

“Everything the DFS lab tests we could do a lesson on,” Chesapeake Commonwealth’s Attorney Nancy Parr said. Parr and other stakeholders expressed interest in having shorter, half-day lessons on multiple topics in the future. “With the legitimacy of science being challenged more and more, it’s important to be educated,” Parr said.

The application process

Herndon and DFS Director Linda Jackson said the programs are going to each be limited to groups of 25 attorneys and judges and that the lessons will take place in eight-hour courses. The programs will be held at DFS labs in Norfolk Sept. 14, Roanoke Oct. 12, Richmond Nov. 2 and Manassas Nov. 9. CLE credit will not be offered, but the courses will be free of charge. “We wanted it to be interactive sessions,” Jackson said. “We’re limiting it to 25 attorneys … for each session, so we have an application/screenings process.”

Herndon said that the group plans to get the application on their website by the beginning of June so that interested parties can apply by the June 22 deadline. For planning purposes, those who are accepted will find out by mid-July. Cavedo said that constituent groups will select participants. “I have a feeling there will be a lot of demand for this, and we’ll be turning away a lot of people,” Cavedo said. As a result, he said he suspects DFS might offer DNA courses again next year. The interest extends to the state Supreme Court, Cavedo said. “Chief Justice [Lemons] has a serious interest in developing education among judges within the technologies of the law,” Cavedo said. “I believe he is very happy with the way this is progressing.”

FROM VACDL: Thank you to Board Members Elliott Bender and Bryan Jones for representing VACDL at the DFS Stakeholder meetings, and for their work in seeing these training sessions come to fruition

Supreme Court of Virginia Seeks Comments on Criminal Discovery Reform

Danielle Payne — Fri, 02 Mar 2018 19:55:21 GMT

The Supreme Court of Virginia is seeking comments on proposed changes to the rules of criminal discovery that have been submitted to the court by the Virginia State Bar Criminal Discovery Reform Task Force. VACDL had a number of members on this Task Force, and their efforts are much appreciated.

The proposed changes affect rules 3A:11 (Discovery and Inspection) and 3A:12 (Subpoena). Click the link below to access the full text of proposed revisions.

Proposed Discovery Rule Revisions SCV 2018

Comments are due by June 1, 2018 and should be forwarded to:

Patricia L. Harrington
Clerk Supreme Court of Virginia
100 North Ninth Street, 5th Floor
Richmond, VA 23219

OR via email with the subject line "comment on Rules 3A:11 and 3A:12" to: scvclerk@vacourts.gov

Please make every effort to submit a comment from your unique criminal defense practitioner perspective well in advance of the June 1, 2018 deadline. We need to let the Supreme Court of Virginia know how important these changes would be for many practitioners and defendants, and that the revisions, while not perfect, are a step in the right direction. Discovery reform in criminal cases has been long overdue, and there is still quite a way go to toward uniform justice across our Commonwealth.

USA Today article 8-16-17; Vikram Kapil and David Heilberg interviewed

Danielle Payne — Wed, 16 Aug 2017 20:50:24 GMT

https://www.usatoday.com/story/news/politics/2017/08/16/how-donald-trumps-comments-may-threaten-charlottesville-legal-case/572815001/

VACDL Members in the news: Brandon Waltrip

Danielle Payne — Thu, 04 May 2017 16:29:07 GMT

http://www.dailypress.com/news/williamsburg/vanews-brian-hicks-found-not-guilty-by-reason-of-insanity-20170502-story.html

Congratulations to Brandon for getting an NGRI in a contested murder trial in James City County on May 2, 2017.

Virginia State Bar task force to revisit discovery reform

Danielle Payne — Fri, 28 Apr 2017 16:06:40 GMT

Earlier in April 2017, VSB President Michael Robinson appointed a 13-member panel, with Virginia Court of Appeals Judge Robert J. Humphreys as chair, to revisit the very contentious issue of criminal discovery reform. VACDL Past President and current Board Member, Doug Ramseur, was selected for the panel. Doug also served on former Chief Justice Kinser's "Special Committee on Criminal Discovery Rules" and was instrumental in the drafting of the committee's report, which was unfortunately not taken up (and basically dismissed) by the Virginia Supreme Court.

We are pleased that 3 other VACDL members are also on the Discovery Reform Task Force: Jim Broccoletti of Norfolk, John Lichentstein of Roanoke, and Ed Riley of Richmond. Our organization, and the criminal defense community, will be well-represented by these long-standing VACDL members!

VACDL Members in the News: President Vikram Kapil

Danielle Payne — Fri, 28 Apr 2017 15:38:26 GMT

http://www.martinsvillebulletin.com/news/first-degree-murder-case-sent-to-patrick-county-circuit-court/article_e835859e-2b9a-11e7-8437-677f6fda33dd.html

NACDL/VACDL and Discovery Reform in Virginia

Danielle Payne — Wed, 18 Jan 2017 16:24:04 GMT

On December 6, 2016, NACDL (with the Charles Koch Institute) hosted an event titled "A Conversation on Criminal Justice in the Commonwealth" in Richmond. The event featured three panel discussions: Criminal Justice Reform in the Commonwealth: Navigating a Path Forward, Discovery Reform: A Necessary Demand for Justice?, and Identifying Opportunities for Successful Re-Entry.

Current Board Member and former VACDL President Doug Ramseur was a panelist for the second section, on Discovery Reform, along with Sen. Bill Stanley. Doug masterfully presented a case for reform, and outlined the past efforts to pursue changes to the discovery rules. The discussion was lively, the audience was engaged, and I know I was not alone in feeling that we might make some headway towards discovery reform after Senator Stanley's remarks.

In light of the interest level in this issue, NACDL is hosting a follow-up event: Discovery Reform: An Advocacy Briefing to Engage the Community in Virginia on Saturday, February 4, 2017, 11:00 a.m. – 1:00 p.m., at Gethsemane Community Fellowship Baptist Church, 1317 E. Brambleton Avenue, Norfolk, VA 23504.

VACDL members are strongly encouraged to attend. Please contact me (Danielle) at vacdlawyers@gmail.com for more information or a copy of the event flier.