MENU

Search

Entrenched ways of prosecuting in Northern Virginia have been engrained in the Fairfax County commonwealth's attorney's office, starting with chief prosecutor Robert Horan from the 1960's and continuing with his successor and former deputy Ray Morrogh; in Arlington, going back to chief prosecutor Helen Fahey from the 1980's, followed by Richard Trodden and then his preferred candidate Theo Stamos; in Loudoun, through fifteen years with Jim Plowman (soon becoming a Circuit Court judge) and his now short-term successor and interim commonwealth's attorney Nicole Wittmann; and in Prince William, with Paul Ebert at the helm since the late 1960's. As a Fairfax criminal lawyer, I have never defended with an expectation that I would not be dealing with many tough prosecutors, but instead with the knowledge that even the most intransigent-seeming prosecutor can be turned around at times, and that negotiations always must come from a position of strength, because going to trial is essential when negotiations do not accomplish what my client wants.

Virginia has long been in the dark ages in many aspects of criminal law, including backwards prosecutor-friendly crabbed discovery rules, forced jury sentencing, and judicial control over party-agreed case dismissals concerning Virginia defendants. As a Fairfax criminal lawyer, I know that Circuit Court discovery is now better, the District Court discovery rule remains its decades-long dinosaur, the last two items (on sentencing and dismissals) have been brought into the modern age wiht the recent Virginia special legislative session, and numerous other passed legislation during the recent special legislative session have brought Virginia further into the 21st century. Today I address jury sentencing.

Improper driving ("ID"), which is an infraction, is often a negotiated result sought in a Virginia reckless driving case, but much less often attainable for a DUI case. As a Fairfax criminal lawyer, I recently obtained the big leap of an ID plea deal in a DWI case, prosecuted under Va. Code § 18.2-266, by seizing the moment when the prosecutor learned that the reporting police officer would be out of court due to illness. In this DUI case where I obtained an improper driving case result, the breathalyzer / Intox EC/ IRII technician appeared for the trial date, but the prosecutor learned that the police officer had called in sick, and therefore would not be present for trial. The prosecutor offered a wet reckless plea deal as a result, but I pointed out that without his arresting officer he was not in a position to obtain any trial conviction at all that day. The defense counteroffered with ID, and I told the prosecutor I planned to hamper his continuance effort by reminding the judge that over a month earlier, we had informed the court and prosecution in writing that our cleint had moved from Virginia to a state over one thousand miles away, which required flying to trial while Covid-19 continues spreading (so let us not expose my client to the coronavirus a second time by postponing the trial date).

Deadlines for initiating Virginia misdemeanor prosecutions -- also known as the statute of limitations -- are generally one year. As a Fairfax criminal lawyer, I know that limitations are placed on prosecuting misdemeanors so that potential crime suspects may avoid spending their entire lives not knowing if and when they might be prosecuted, and because the passage of time can mean the loss of evidence; unavailability and death of witnesses, and difficulty tracking them down; and failing memories. I also know the importance of knowing the lengthier exceptions to that one year deadline. Va. Code § 19.2-8. Should you exult over having beaten the statute of limitations if your case is dismissed over a year after the alleged crime date? Beware doing so before consulting on the matter with a qualified criminal defense lawyer to make sure you know which statute of limitations applies.

Transcending and reversing obstacles is a big part of successful criminal defense in Virginia, which has among the harshest criminal justice systems. As a Fairfax criminal lawyer, I know that criminal defendants are presumed innocent under the Bill of Rights. Some are in fact innocent, some have in fact committed crimes, sometimes people who have committed crimes do not get convicted, and sadly sometimes people who have committed no crimes get convicted. Being thrust into the arena as a criminal defendant can feel worse than having a truckload of dirt poured on you but instead can feel like being dropped headfirst into a vat of diarrhea.

Challenge police searches if the search leads to your being prosecuted. As a Virginia criminal lawyer, I know that the Exclusionary Rule of the Constitution’s Fourth Amendment will sometimes yield the suppression of the evidence seized by police. Aaron Emile McArthur is a recent beneficiary of such a pursuit, having this week obtained a reversal of his felonious handgun possession conviction after the Virginia Court of Appeals concluded that the car frisk / search leading to the discovery of a firearm was unconstitutional. Com. v. McArthur, ___ Va. App. ___ (July 28, 2020).

Lighthearted actions by criminal defense lawyers with police and prosecutors may seem like weakness to those untutored in persuasion. As a Virginia criminal lawyer, I have witnessed time and again that doing the opposite from unnecessarily putting cops and prosecutors and anyone else in fight or flight mode helps open their ears and beings to my efforts to inform and persuade them. As a for instance from another direction, had then-chief justice Virginia Harry L. Carrico not put me in hysterics during his lunchtime remarks at the mandatory civility session for new bar members, I would have not seen his human side but instead seen him as only a dangerous relic of the past when I thereafter read his misguided pen in upholding the convictions of Mildred and Richard Loving for their racial intermarriage, which unanimously and resoundingly got reversed by the United States Supreme Court.

Knowing one's true self is vital to anyone's life. As a Fairfax criminal lawyer, I know that discovering and reccognizing my true self is essential not only to me as a person, but for everything I do as a criminal defense lawyer, from connecting and empathizing with clients, to discovering and conveying their persuasive story, to persuasively engaging witnesses on both sides of the ring, and to persuading judges, jurors, prosecutors and police. I have experienced repeatedly turning myself and my soul inside out to know myself as a person and trial lawyer. The experience can be deeply painful, but is also essential and exhilarating, and the pain can heal to become a powerful building block for becoming stronger and stronger. For me, the alternative is to be a shadow of a human being.

Demonstrators nationwide are hitting the streets demanding real policing reform, ending racism, and justice reform after George Floyd died while a Minneapolis police officer pinned him down for many minutes with the cop's knee. As a Fairfax criminal lawyer, I have been unable to keep up with the multiple news stories and discussion by people I know on the one hand of peaceful protesters, suppression of them (and of some journalists as well) starting with curfews, some police even joining the demonstrators or taking a knee in support of Mr. Floyd, and peaceful protesters responding to those nearby them who are committing crimes; on another hand people assaulting police, rioting, looting, vandalism and arson; and on another hand a wide range of government and police action and response that includes excessive action to say the least, and use of the National Guard in some places, and Donald Trump's threats of calling in the military. Not having been able to keep up with all this news, I limit this article some specific circumstances happening in Northern Virginia and the nation's capital, and to the need for the police and government reaction to demonstrations not to turn into instances of more police abuse.

Minneapolis former cop Derek Chauvin -- who kneed George Floyd's neck until he died -- is not a mere abberation. As a Fairfax criminal lawyer, I know that police abuse runs too rampant, making this George Floyd tragedy at once hearbreaking, despicable, and unfortunately not the last such tragedy until we completely overhaul the policing and criminal justice systems. Outrage justifiably flows from all corners over this abomination. Rather than my repeating what so many others have said, I wish to address the police and criminal justice reform that America so sorely needs.