Messiness in court is common in Virginia courts- Fairfax criminal lawyer addresses how to reverse it

Messiness (MN) is a common situation in Virginia courts. As a Fairfax criminal lawyer, I make my clients aware of the visible and less visible court MN, hurdles and landmines, and address with them how we will navigate, deflate, reverse, redirect and cleanse that MN. Two basic scenarios can greet you when you visit a Virginia criminal courtroom. In the first scenario, the judge, prosecutor and staff are smiling, speaking to criminal defendants and their lawyers in reassuring and diplomatic voices, and moving along seemingly smoothly without seeming to rush anything. In a very different scenario, a criminal defendant is showing agitation, the criminal defense attorney is working to deal with that, the complainant (more likely a civilian complainant than a police / law enforcement officer (LEO)) is agitated or angry, the prosecutor looks agitated or stressed, and the judge is irritated. You can put those and any other scenarios in your back pocket as information about possibilities in court, and then not let them be a distraction as you and your Virginia criminal defense attorney get down to the essential teamwork business of obtaining as much justice for you in court as possible.

Does messiness result if my Virginia criminal lawyer waits for my court date to pursue settlement or plea negotiations?

As a Fairfax criminal lawyer, I hear from many of my clients questions about whether settlement or plea negotiations should take place before the trial date. I reply that doing so misses whether the prosecutor will be fully prepared for the trial date (including having the necessary witnesses and evidence present), and that doing so may also make the prosecutor more focused on being prepared for trial and assuring that their essential witnesses and evidence are present. On the flip side, an incentive for a prosecutor to accept a particular defense settlement offer can be the benefits of avoiding preparing for trial and assembling witnesses for the trial date, and a judge might be more willing to accept a mutually agreed plea deal or other settlement negotiation when knowing that the court’s time will be substantially saved by approving a negotiated settlement. Sometimes a Virginia criminal defendant wants to know whether to engage pretrial in settlement negotiations out of anxiety over the possible outcome in court, perhaps because their pending case is interfering with career prospects or has gotten them suspended or terminated from their jobs, and perhaps their immigration status is in limbo with the case. My response is to assure that I am fully trial ready and that I am helping my client make an informed decision about how to handle settlement negotiations while being fully prepared for trial and for any possible sentencing in the case of a conviction (whether that conviction results from a trial or a plea deal). All of my preparation with my clients helps cut through courthouse messiness.

How do Virginia prosecutors and police feel about the messiness of trials by fire?

Plenty of Virginia assistant commonwealth’s attorneys (prosecutors) and police probably expect such a high percentage of cases to settle that they are often unprepared or underprepared for going to trial. Many times I have won trials after prosecutors or police attempt mind games, cajoling and unpleasantness with me about my client’s decision to proceed to trial. As with the dog that barks the more when fearing more, the police officer or prosecutor acting bothersome over the defendant’s election to proceed to trial may reveal weakness or fear in the prosecution and prosecution, rather than mere realpolitik by the prosecutor to encourage a plea deal or other settlement negotiation that frees up their time for working on their other cases or having more free times on their hands generally. Messiness can visit prosecutors, as well, and not only criminal defendants.

Is a great Fairfax plea deal assured, and how do the other Northern Virginia prosecutors approach settlement negotiations?

Part of the messiness of criminal defense is that Virginia criminal defendants are not entitled to a plea deal. Some prosecutors will not be more liberal in settlement negotiations so that they keep getting trial experience. Others have orders from their superiors not to cross certain negotiating lines. Others do not sufficiently assess the strengths and weaknesses of their case until it is too late, and some of those prosecutors will agree to a better settlement during trial than they did before trial started. Ask your Virginia criminal defense attorney your prospects for obtaining a favorable settlement in your case. Your lawyer will not have a crystal ball, but can give you a forecast, based on such factors as the policies and approach of the chief prosecutor, how much leeway the managing prosecutors give their line prosecutors, and the approach of the particular prosecutor. Nothing is static, though. I have been floored at how great some of my settlement negotiations have been with prosecutors I have perceived as some of the most intransigent negotiators. On the flip side, I have experienced prosecutors who regularly are among the most desirable prosecutors with whom a criminal defense lawyer can negotiate, and then learn the next day that that prosecutor is being much more conservative in negotiating, whether because of a different criminal charge or allegations surrounding it, because that is a hot button matter with the prosecutor, or because the prosecutor has changed. A great negotiated settlement is not assured anywhere, not even in my headquarters county of Fairfax, where at least prosecutors have wide latitude in negotiating Virginia DUI and plenty of other cases, but are constrained, for instance, with certain firearm prosecutions. Also, latitude does not automatically mean the prosecutor will be favorable to the defendant in settlement negotiations rather than going the other way.

Should I fear the possible messiness of going to trial as a Virginia criminal defendant?

As a Fairfax criminal lawyer, I know that it can be tough for an innocent person to accept a plea deal (for instance an adult falsely accused of sexually assaulting a minor, risking decades of incarceration if convicted, and offered a deal to get their liberty back much quicker), but still also difficult for a culpable person to plea guilty when they have a chance of winning (and where I have obtained acquittals for plenty of people who have committed the alleged criminal act). With the latter set of clients, sometimes I tell them that they took a risk and entered potential messiness when they committed their criminal or improvident act on the incident date (and I do not like that the Virginia DUI law criminalizes blood alcohol concentration as low as 0.08, which is a level that not everyone will even feel, and plenty of DWI defendants are difficult to perceive as engaging in a criminal act, as a result), and that the decision to proceed to trial or settle their case is an exercise in risk, where I endeavor to minimize that risk and messiness, and to win as much justice as possible when we proceed to trial.

What do I and the prosecutor have to gain and lose at trial?

The only way for a Virginia criminal defendant to obtain an acquittal is to proceed to the potential messiness of a trial. If you lose at trial, you can appeal (and an appeal from Virginia District Court to Circuit Court gets you a retrial), where your prospects on appeal are another question. The prosecutor gets trial experience and a possible conviction by going to trial. The prosecutor also risks a conviction and also risks discomfort at trial if the trial reveals the prosecutor’s weak spots in handling trials, in knowing the law, and in being prepared or not. (One of my favorite prosecutorial trial foibles (rare but has happened a few times) is when the prosecutor objects to my asking cross examinees leading questions, when leading questions are the very law-permitted essence of cross examination. A more common silly objection I have seen by even more prosecutors is to objected that one of my questions to a cross examinee has been asked and answered, when the question was only previously asked by the prosecutor, which does not count for my questions to the cross examinee. Even more common is for the prosecutor to object when I ask the cross examinee the same question (or a variation on that question) that the cross examinee failed to answer the first time. Plenty of times the judge will agree that the cross examinee has not answered yet.)  A common sight when I win a Virginia DUI or other criminal trial is to see the prosecutor in the courtroom hallway talking with the prosecution witnesses. How I would like to be a fly on the wall during that talk, but my overriding interest is to celebrate with my client, and to debrief them on such matters as obtaining a certified copy of their acquittal disposition and the process for applying to expunge the matter from their public record.

Develop strength and resiliency for fighting your Virginia prosecution

“Be strong” and “don’t cry” are overused phrases. I do very much believe in being strong and not letting the opponent seeing my client cry, but that does not happen at the snap of one’s fingers and does not address the messiness at hand. With my clients, I help them develop their strength and resilience by working with them as team to obtain as much justice as possible, and to share with them (if they ask) how I develop my own strength and resilience, which includes my confidence from all of my trial and other courtroom experience and outcomes, my devoted preparation for my clients, and my taking care of my mental, physical and spiritual health, including mindfulness (not McMindfulness but real mindfulness that focuses on the present moment and not getting sucked up by past events nor a future that might not happen) and exercising daily (never missing a day) with my taijiquan martial art, and meditating several times weekly (usually at the conclusion of practicing my martial art form, with standing meditation).

Fairfax criminal lawyer Jonathan Katz recognizes that no incantation gets you justice in court against the possible messiness of Virginia DUI, felony or misdemeanor prosecutions. Nothing replaces hard and smart work to beat the prosecution as best as possible. To find out the great defense that Jon Katz can provide you, contact our staff at 703-383-1100 for your free in-person confidential consultation about your court-pending Virginia prosecution.