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Behind Virginia’s natural beauty is a tough criminal justice system

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Virginia has much natural beauty, including Great Falls, Shenandoah, Chinconteauge/Assateague, and the many wonderful waterways around places like Gloucester for paddling a canoe or kayak.

Nevertheless, to this day in Virginia, I still feel a jolt to my system when I see vehicles — always trucks to this point — proudly displaying the Confederate flag in front. I never experienced such visuals — only seeing them in Virginia thus far — until moving from New York to Washington, D.C., to attend law school, and staying in the area. This is the state where courts and other government buildings close on [Robert E.] Lee-[Stonewall] Jackson Day, where a confederate soldier statue pointing his rifle greets visitors to the Loudoun County courthouse courtyard, where a skillfully engraved likeness of Robert E. Lee greets visitors to the Culpeper Circuit Court clerk’s office, and where a couple named Loving had to go straight to the Supreme Court in the 1960’s to reverse Virginia’s criminal ban on intermarriage between black and white people.

Times change. In the 1980’s, Virginia elected an African American governor, Douglas Wilder. Twice, a majority of voting Virginians voted for Barack Obama, our nation’s first African-American president. Northern Virginia, for one, is in many ways a greater Washington, D.C., with transplants from all around the country and many parts of the world.

Next needs to come radical change on the criminal justice front in Virginia, where criminal discovery rules are crabbed as to defendants’ rights and defense posture, where police routinely jail arrestees for hours for alleged public intoxication — even in a bar, where the owners want patrons to spend, thus resulting in plenty of intoxicated patrons — for them to sober up first (even though intoxicated in public is not a jailable offense); and where simple possession of cocaine and LSD is a felony, as is theft of anything worth $200 or over. In Virginia, driving too fast is jailable, so watch that speedometer, and make sure it is accurate.

Why do I practice in Virginia, then? The answers partly come here and here about why I practice criminal defense at all in a criminal justice system that to this day is too unjust. I certainly like the in Virginia we get real lawyer-directed jury selection/voir dire, which is not the case in the surrounding jurisdictions of D.C. and Maryland, nor in the surrounding federal courts other than the Western District of Virginia, which also permits lawyer-directed voir dire.

With the foregoing backdrop, praised be Virginia Court of Appeals Judge Elder, who yesterday was the lone dissenter in an opinion that held, in Judge Elder’s words, "that driving at approximately 42 to 72 miles per hour above the speed limit, in a populated area with numerous cars around is sufficient to support a finding that appellant acted maliciously when he caused the traffic accident that injured four people." Knight v. Va., ___ Va. App. ___ (Nov. 13, 2012). The defendant was convicted of malicious wounding, which is a Class 3 felony, carrying five to twenty years in prison.

As with my work in college with Amnesty International, where AI’s watchword was that it is better to light a candle than to curse the darkness, I see the ongoing possibilities in making Virginia a more just place, even if when the pace in the right direction does not move quickly enough.