Bottlenecked Virginia jury trials bring opportunities and risks

Bottlenecked Virginia jury trials – Fairfax criminal lawyer on the opportunities and risks this brings

Bottlenecked jury trials are the current reality in Virginia during the coronavirus, with un-incarcerated criminal defendants still needing to wait many months to get their cases before a jury. As a Fairfax criminal defense lawyer, I see the opportunities, risks and challenges in this state of affairs. The opportunities include the chance for acquittals and other favorable outcomes. The risks include jurors who can be distracted by leaving children at home during any ongoing distance learning, and jurors distracted and even uncomfortable or upset by any increased Covid-19 exposure risks if their non-court daily lives bring them into less and sparser contact with other people. The challenges include the ongoing harm brought to presumed-innocent Virginia criminal defendants for whom the commonwealth’s Supreme Court has removed its authorized jury trial delays from the speedy trial right calculation.

Using bottlenecked Virginia jury trials as a reason for releasing criminal defendants on bond pretrial

As a Fairfax criminal lawyer, I see a travesty of justice to hold pretrial all but the most dangerous and risky Virginia criminal defendants for this long to proceed before a jury. Yes, Fairfax Circuit Court finally has a state Supreme Court-approved jury trial plan, but not all Virginia counties do. Consequently, arguments for overcoming Virginia statutory no-bail presumptions and for other serious pending criminal charges include not only the arguments that would have been presented by Virginia criminal defense lawyers before the pandemic, but also that home detention or intensive supervised release is preferable for the defendant, other inmates and the public, rather than adding the defendant to the coronavirus incubator that are jails; and also to argue that if a Virginia criminal defendant is going to be forced to wait longer than in pre-Covid-19 times to appear for trial due to bottlenecked jury trials, then that waiting time should be outside incarceration walls.

Is my right to a Virginia jury trial curtailed by Covid-19 bottlenecks?

As a Fairfax criminal lawyer, I know that every Virginia criminal defendant — even for such non-jailable alleged crimes as Class 3 and 4 felonies — and every traffic infraction defendant is entitled to a jury trial in Circuit Court. For Virginia criminal defendants, that jury trial right is guaranteed by Section 8 of the Constitution’s Bill of Rights:  “That in criminal prosecutions a man hath a right… to a speedy and public trial, by an impartial jury of his vicinage, without whose unanimous consent he cannot be found guilty. He shall not be deprived of life or liberty, except by the law of the land or the judgment of his peers…” For every traffic infraction “appealed to a circuit court, the defendant shall have the right to trial by jury.” Va. Code § 19.2-258.1. Bottlenecked jury trials will only delay, but not prevent, this jury right.

Will my jury trial case have better negotiating prospects for prosecutorial triaging of the most important cases to bring before a jury?

How will Virginia commonwealth’s attorneys have time to prosecute jury trials in Circuit Court if they both have to try cases that would have already proceeded to trial but for bottlenecked coronavirus delays, and if the presentment of jury trials will go at a slower pace as the coronavirus bottleneck eases? How will Virginia police obligations to appear for bottlenecked jury trials interfere with their getting through any backlog of their own work  — and backlog dealing with witnesses who got sick or quarantined from the coronavirus — that may have been caused by the pandemic? One way is through prosecutors agreeing case-by-case to plea / settlement terms that are more favorable to Virginia criminal defendants than prosecutors might have agreed to pre-Covid-19. A Virginia criminal lawyer will not make headway in this regard by trying brute force to tell prosecutors the woes they will suffer if they do not use case negotiations to ease this jury trial bottleneck, rather than checking with the prosecutor about where the particular case falls in their priority of bringing the case to trial rather than settling it.

How will the jury trial bottlenecking help my prospects for negotiating my misdemeanor case in Virginia District and Circuit Courts?

Consistent with the above paragraph, bottlenecked Virginia jury trials may be a reason more often than before for convicted misdemeanor defendants to appeal their convictions from District Court to Circuit Court and to demand a jury trial in the process. By the same token, Virginia criminal defense lawyers can consider reminding prosecutors at the District Court level that the inability for the parties to reach a settlement in district court may simply lead to a jury trial on appeal in Circuit Court in the event of a district court conviction. In Fairfax, of course, such negotiations in District Court will only apply to the limited universe of misdemeanors that the Fairfax Commonwealth’s Attorney’s Office is handling any longer, while seeking funding to add prosecutorial positions. While a guilty plea in district court does not preclude an appeal, a criminal defendant has less incentive to appeal from a desired guilty plea than from a trial conviction.

When I appeal my Virginia misdemeanor conviction to Circuit Court, do I still risk a worse outcome on appeal?

As a Fairfax criminal defense lawyer, I know that a misdemeanor trial on appeal to Circuit Court is a trial de novo, where (1) all original charges can be brought back in Circuit Court if the case settled as a guilty or no contest plea in District Court and (2) any sentence in District Court does not cap the potential sentence if convicted on appeal in Virginia Circuit Court. Consequently, long before your Circuit Court misdemeanor appeal trial date, consult with a qualified Virginia criminal lawyer about whether to seek to waive a jury trial or not, how to proceed with case settlement negotiations (including addressing bottlenecked jury trials), and whether, when and how to withdraw the appeal if continuing with a trial on appeal looks too risky.

Fairfax criminal lawyer Jonathan L. Katz pursues your best defense against Virginia felony, misdemeanor , and DUI prosecutions. Call 703-383-1100 for a free in-person consultation with Jon Katz about your court-pending Virginia criminal or DWI case.