Virginia Association of Criminal Defense Lawyers


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

    from Augusta Free Press; author: Chris Graham

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

  • 03 Jan 2020 3:43 PM | Danielle Payne (Administrator)

    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?’ ”

  • 03 Jan 2020 3:30 PM | Danielle Payne (Administrator)

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

    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.

  • 03 Jan 2020 3:29 PM | Danielle Payne (Administrator)

    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.

  • 05 Dec 2019 3:24 PM | Danielle Payne (Administrator)

    [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.

  • 05 Nov 2019 2:16 PM | Danielle Payne (Administrator)

    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.


    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.”

  • 05 Nov 2019 1:54 PM | Danielle Payne (Administrator)

    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.

  • 21 Oct 2019 3:27 PM | Danielle Payne (Administrator)

    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

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