Challenges with Fairfax prosecutors limiting the misdemeanors they handle

Challenges & possibilities with no prosecutor present for many misdemeanor trials- Fairfax criminal lawyer weighs in

Challenges abound with the Fairfax County Commonwealth’s Attorney’s Office’s recently-announced shift to only prosecute a limited universe of misdemeanor cases. As a criminal lawyer in Fairfax, I know that this change is a double-edged sword, both providing opportunities and hurdles to the defense. On the one hand, a skilled criminal defense lawyer can obtain advantages in the absence of a prosecutor that would have otherwise been less possible. At the same time, the below-addressed issues now arise.

The challenges now that Fairfax prosecutors no longer handle all misdemeanor cases

New challenges can arise from a police officer’s lack of law school training, lack of prosecutorial experience, lack of duty to the Virginia Rules of Professional Conduct, and lack of willingness to stand up to himself or herself, the cop’s colleagues, injudicious police stings, and civilian complaining witnesses in determining whether truth and justice justify the prosecution in the first place, or justify a favorable settlement. Although in some Virginia counties this state of affairs has been par for the course for years, Fairfax police have been barely trained nor experienced in this frontier with jailable misdemeanors. Moreover, with the police coming from several law enforcement agencies, less uniformity will result in the way that police evaluated and negotiate cases than when the same happens with prosecutors from a particular county.

I do not expect police as much as prosecutors to follow the following American Bar Association aspirations for prosecutors:

“The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict. The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.”

What misdemeanors will the Fairfax commonwealth’s attorney’s office now handle?

Virginia law only requires prosecutors to handle felony cases and misdemeanor appeals to the circuit court from the juvenile & domestic relations district court. Va.. Code § 16.1-232. Prosecuting any other cases is a matter of discretion, priorities and available funding. Whether this change is an effort by the Fairfax commonwealth’s attorney to see if more funding is made available at the statewide and county levels remains to be seen, but tax revenues will probably be reduced during these Covid-19 times and will present challenges for increased prosecutorial funding.

With that, the Fairfax County Commonwealth’s Attorney’s Office this week has announced that it will prosecute the following universe of misdemeanors: DUI, domestic assault involving intimate partners, stalking, sexual assault, motor vehicle misdemeanors with fatalities, firearms violations relating to substantial risk orders, and misdemeanors consolidated with felony charges. On top of that, the Fairfax prosecutors will handle cases prosecuted in the veterans treatment and mental health dockets, and “any case of significance or public importance as determined by the Commonwealth’s Attorney.” The challenges resulting from these changes will reveal themselves over time.

What cases will the Fairfax prosecutors not handle?

The foregoing policy means that the Fairfax County commonwealth’s attorney’s office generally will not prosecute the following misdemeanor cases, not even on appeal if not originating from the juvenile & domestic relations district court: non-domestic assault, theft, embezzlement, drug paraphernalia, trespassing, computer trespass, prostitution, bawdy place, reckless driving, gambling, disorderly conduct, obstruction of police and justice, false report to police, public intoxication, possession of a Schedule III or IV drug, possession with intent to distribute one ounce or less of marijuana, underage alcohol possession, possessing a fake ID, consuming alcohol while driving, hit and run, fleeing police, concealed weapons, possession with intent to distribute tobacco, and peeping tom. Courtroom challenges by criminal defense lawyers will no longer be answered by Fairfax prosecutors in the cases they will not handle.

How to deal with the challenges of protecting security clearances, health care licenses, and immigration status without a prosecutor to negotiate a disposition friendly to those statuses?

This universe of misdemeanors that the Fairfax prosecutors will not handle includes crime categories that can harm security clearance and public trusts, health care licenses, immigration status, career security and reputational matters that previously could have been salvaged through negotiations to an alternative amended count and the dismissal of certain counts in multiple-count prosecutions; a suspended imposition of sentence; a continuance for community service, restitution, and other self-improvement and restorative justice steps; and favorable sentencing negotiations. Police are not necessarily going to be as motivated to engage in such involved levels of negotiation even if they were empowered to do so. Police will certainly be less motivated than a prosecutor to move to dismiss a case out of a determination that credible evidence is absent, that the complainant’s request for a case dismissal should be honored, or that the case otherwise does not merit being prosecuted. All these challenges need to be considered by the criminal defense.

How to assure full and faithful discovery disclosure in the absence of a prosecutor?

All criminal defendants are entitled timely to receive exculpatory / Brady evidence, and to receive Va. S. Ct. Rule 7C;5 discovery (limited to defendant statements to law enforcement and the defendant’s criminal record, and only after obtaining an executed discovery order). Police will repeatedly define exculpatory evidence more narrowly than will criminal defense lawyers. At least when a prosecutor is involved, the possibility is increased of a more searching and demanding pursuit of exculpatory evidence that a police officer may not be willing to engage in. especially if that involves pushing the police officer’s colleagues and superiors for such evidence. Consequently, the challenges to obtaining full discovery in the absence of prosecutorial participation can be significantly increased.

The identification and production of Brady evidence ordinarily happens away from the observation of the criminal defense. When a prosecutor is involved in providing discovery, sometimes the criminal defense needs to seek judicial intervention with discovery challenges to assure compliance with Brady and state discovery rules. When prosecutors are not ordinarily involved in the prosecution, sometimes a Virginia criminal defense lawyer will find it prudent to urge the prosecutor’s office to participate in providing discovery.

What happens at trial when a prosecutor is not involved?

A police officer cannot fill in as a prosecutor at trial. For instance, a criminal defendant is entitled by motion to exclude from the trial courtroom all witnesses except designated alleged victims — including police witnesses — except for when they testify. Va. Code § 19.2-265.1 (called the rule on witnesses). That right there bars police from sitting at the prosecutor’s table, delivering opening statements and closing arguments, presenting witnesses other than themselves, cross-examining defense witnesses, making challenges to the admissibility of defense evidence, offering prosecution evidence other than when they are testifying, responding to defense motions to dismiss / strike the evidence, and from being involved in voir dire / jury selection in misdemeanor appeals.

Bureaucratic policies can change

The Fairfax County prosecutor’s office’s announced withdrawal from prosecuting all jailable misdemeanor cases does not preclude that office from updating its policy from time to time as it learns of the challenges of police proceeding on their own. Nor does that policy control the prosecutors in Fairfax City, the town of Vienna nor the town of Herndon.

A jailable misdemeanor calls for obtaining a qualified criminal lawyer

Even if police are less effective at trial than an experienced prosecutor, they still have more courthouse experience than a criminal defendant. Such challenges — on top of the penalties, reputational harm and collateral consequences of a conviction and criminal sentence — make if important for a criminal defendant to obtain a qualified lawyer for any jailable prosecution, for starters.

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