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Fairfax criminal defendants with lawyers will all have prosecutors again

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Fairfax criminal defendants with lawyers will no longer proceed to trial without a prosecutor

Fairfax criminal defendants for a year have experienced going to court for most non-Virginia DUI misdemeanor prosecutions to see no prosecutor involved in their case. As a Fairfax criminal lawyer, I know that Virginia law does not require prosecutors to be involved in adult misdemeanor cases, but this budget-driven change in mid-2020 to remove assistant commonwealth attorneys from such cases was a sea change from the practice of chief prosecutor Steve Descano’s two predecessors, running from the 1960’s to the day Descano took office in 2020. This all changes with county prosecutors assigned to such Virginia misdemeanor cases no later than July 12, 2021.

Going to trial without a prosecutor is great for defendants. Not as great is having no prosecutor for obtaining discovery, rescheduling agreements, and case negotiations

Fairfax criminal defendants got a boon when proceeding to trial for misdemeanor cases without prosecutors, leaving nobody on the opposite side to sufficiently prepare the case, make essential objections — let alone to do that well — nor to make opening statements and closing arguments. Different judges handled this prosecutorial absence in different ways, running from not allowing anyone to step even partially into the shoes of the prosecutor, to allowing complainants to cross examine testifying defendants and defense witnesses. For trials, I love proceeding without a prosecutor in the courtroom, except to the extent that this interferes with the ongoing obligation of the prosecution to provide Brady / exculpatory evidence, even during trial.

The chief prosecutor obtained a large funding increase to assure that Fairfax criminal defendants with attorneys have a prosecutor in their case

Only a week ago, I received a Fairfax prosecutor’s office note that they would not be involved in one of my misdemeanor cases, and only a little earlier than that did a prosecutor from that office tell me he did not know when all Fairfax criminal defendants with lawyers would no longer proceed to court without a prosecutor. Then, 0n July 1, 2021, the Fairfax County, Virginia, Bar Association posted the commonwealth’s attorney’s office announcement that, for instance:  Effective July 12, 2021, regardless of offense date, “the Fairfax Commonwealth’s Attorney will be involved in the prosecution of all misdemeanor criminal matters where the Defendant is represented by an attorney.”

What will be the quality of the new prosecutors hired to handle Fairfax misdemeanor cases?

After Steve Descano beat his predecessor in the 2019 primary and took office soon thereafter, the attrition of prosecutors from the previous administration took the astounding turn of currently leaving not more than three current prosecutors who were still with the office when Descano was elected. Granted, at least two former county prosecutors rejoined the commonwealth’s attorney’s office and some other experienced prosecutors and defense attorneys came aboard. Nonetheless, the quality, experience level and related growing pains from adding additional prosecutors with this budgetary cash infusion will help determine how much of a help versus a curse such a transition will mean for Fairfax criminal defendants in the short and long runs.

What should Fairfax criminal defendants do to prepare for having prosecutors in all cases with defense lawyers?

No matter who the opponent is, it is very important for Fairfax criminal defendants timely to obtain a qualified lawyer. Do not assume that if you do not obtain a lawyer that no prosecutor will be involved in your case, either. This is your life, liberty and reputation here, and proceeding alone before an experienced judge, police officer and prosecutor can spell disaster of even unforeseen proportions.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, misdemeanor and felony prosecutions. Find out the positive difference that Jon Katz can make to your defense, by arranging a free in-person confidential consultation about your court-pending case, at phone. Regardless of which lawyer you hire, you will likely find Jon’s insights about your case to be invaluable.