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Fairfax County’s former chief prosecutor said Virginia prosecutes “on the cheap”

Fairfax criminal/DWI lawyer on knowing oneself and the lawyer before going into the courthouse battlefield

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In the Art of War, Sun Tzu addresses the uneven resources and abilities of each fighting side.

Practicing in the Fairfax and other Northern Virginia courthouses, I find that each prosecutor I go against has many more cases than I at any one time. That does not automatically mean that each criminal defense lawyer has more essential overall resources than prosecutors, seeing that criminal defense often takes more preparation time than prosecution, and seeing that prosecutors have on their side the resources of police, staff (as do I), equipment (as do I), collaboration with colleagues (as do I), and the overall unfairness of criminal procedure.

At the very least, though, it helps for a criminal defense lawyer to know whether a prosecutor is juggling many cases at once, is sufficiently funded for prosecuting misdemeanors , and spends little time preparing for misdemeanor cases before the trial date.

Take Fairfax County, Virginia, for instance. Then-recently retired four-decade chief county prosecutor Robert Horan said in 2008 that “Virginia has this longstanding desire to do criminal prosecution on the cheap. I’ve learned to live with it. People would constantly say, ‘Why don’t you get more people?’ We don’t get more people because the legislature won’t pay for more people.” On top of that, funding for prosecuting misdemeanors seems to rely on money from the county/city/town level rather than Virginia state level; this translates into uneven misdemeanor prosecution funding from county to county.

In Fairfax County, misdemeanor prosecutors for General District Court are not announced until the day of trial, with the prosecutor assigned to one of the misdemeanor courtrooms, rather than to particular individual cases. Typically, a Fairfax County Assistant Commonwealth’s Attorney/prosecutor is handling many more cases on any day I have a misdemeanor case against the prosecutor.

Fairfax County and Prince William County, Virginia are the Northern Virginia counties that have hired private law firm lawyers to prosecute misdemeanors allegedly committed within the confines of an incorporated city or town (in Northern Virginia, that would be Vienna, Herndon, Fairfax City, or Manassas Park, with Arlington prosecutors handling misdemeanors in Falls Church). This means that such private law firm lawyers have competing obligations between prosecuting and representing their retained clients.

One day I asked a private law firm who then (but no longer) prosecuted a Virginia city’s cases how he found sufficient time to spend on his retained cases in conjunction with his prosecution cases. He indicated that he did not typically look at the prosecution cases except for the one day of the week that he prosecuted the cases in court. He let police subpoena witnesses, and at trial if he did not already have the full story from the police officer, he could ask “What happened next?” That’s my kind of prosecutor, I told myself at first blush, pleased to have an advantage over an unprepared opponent.

Wait a moment, though. If the prosecutor is unprepared, that unpreparedness risks that he is not spending the time, effort and focus to assure s/he is timely turning over Brady/exculpatory evidence; is not sufficiently cooperating with my efforts to obtain discovery to which I am entitled; and is not sufficiently reviewing cases in advance to determine whether the case should be prosecuted at all, whether to offer a settlement better than the original count against my client, whether to offer a sensible and favorable agreed sentence, or whether to agree to dismiss the case with or without conditions for doing so.

When a prosecutor is flush with a stack of misdemeanors to prosecute, it can be all the more attractive to a prosecutor in jurisdictions where misdemeanors are often settled by written settlement sheets submitted to the trial judge, for me not merely to state a settlement offer orally, but to hand the prosecutor a completed settlement sheet already signed by my client and me. The disadvantage of doing so is if the prosecutor would have offered a better resolution. The advantage of doing so is that if the prosecutor may well have rejected such a defense settlement offer, the prosecutor might be swayed to sign off on the proposed settlement sheet knowing that signing off on the sheet means one less case on his or her plate for the day, and the avoidance of a time-consuming trial.

Never underestimate the opponent, of course, no matter how under-resourced or handicapped the prosecutor may seem to be. In a great fictitious example, Bobby Riggs creamed Felix and Oscar in ping pong, after giving them a 19-point handicap and intentionally missing the first point, as each side tried to psych out the other.

In the end, a great criminal defense lawyer battles against the prosecutor without chasing nor retreating from the opponent, regardless of the opponent’s strengths and weaknesses. As t’ai chi master Benjamin Pang Jeng Lo once said: “Normally we think that if [our opponent] has 100 pounds of force or power, I better have 150. But then if I get 150 pounds of force, he may have accumulated more himself… So I need to reverse my approach. I need to take my own power down to 0. Then there’s no chasing or spiraling. Nothing can change. If he has 100, I have 0. [W]hatever he has, I’m always beneath it, it doesn’t change or affect me. I’m not chasing his attributes, or competing, or catching up, or exceeding him.” (See Master Lo’s entire quote here.)

Consequently, a trial lawyer and any other fighter wants to know the opponent, but more importantly wants to fully know and develop himself, his case, and his battle campaign.