Fairfax felony defense must be fully pursued even with a self-proclaimed progressive chief prosecutor on board

Fairfax felony defense needs to be as fully defended today as before the county’s self-described progressive chief prosecutor took office over two years ago. As a Fairfax criminal lawyer, I know this to be so not only from common sense but also from my experience and observation. Moreover, simply looking at the roster of the Virginia Progressive Prosecutors for Justice reveals an entire lineup of chief prosecutors who will not hesitate to take a firm approach to prosecution. In reality, progressive prosecution in Virginia at best involves fairer and more human prosecution of more cases. No matter the political agenda of a chief prosecutor, his or her line prosecutors do not always agree on that agenda, and many criminal lawyers work at these offices not out of agreeing with the chief prosecutor’s agenda, but out of wanting to do Virginia criminal lawyer work itself. Many line prosecutors will want to have a resume that makes them employable in other prosecutor offices, which can mean distancing themselves from any progressive bent.

How does a Fairfax felony prosecution begin?

A Fairfax felony prosecution typically starts with an arrest and being brought before a court magistrate. Of course, court magistrates and judges are from a separate branch of government, so should not be expected to reflect any progressive agenda of the chief Fairfax commonwealth’s attorney. Virginia court magistrates deny pretrial release / bond / bail in a slew of circumstances. Unfortunately, the judge may not consider pretrial release on the first court appearance / arraignment, rather than waiting for the defense lawyer to set a hearing for a subsequent bond hearing date. Consequently, when you get arrested for a Virginia felony charge, you are dealing both with getting released before your preliminary hearing and beginning the rest of your defense.

What happens between my arrest date and Virginia felony preliminary hearing or trial date?

Most Fairfax felony prosecutions have a preliminary hearing scheduled before the indictment and trial setting process take place. Do not mistake the phrase “preliminary hearing” as being but a garden variety procedure. A Virginia preliminary hearing date is a critical phase of your prosecution, at which you will either have a preliminary hearing where your Virginia criminal defense attorney will develop more evidence to benefit your defense, and will argue the absence of probable cause to believe that you committed a felony; your case will settle one way or another; your case will get dismissed temporarily or permanently; or your preliminary hearing date will get continued. The sooner you obtain an attorney, your lawyer can deliver a written request for discovery / evidence to the prosecutor’s office, which in Fairfax has a practice of agreeing to provide such discovery as early as ten business days after a Fairfax criminal defense attorney requests it, when the prosecution has such evidence available to provide. (UPDATE- As of November 2022, the Fairfax prosecutor’s office instead agrees to sign a proposed order to provide discovery at least ten calendar days before trial or preliminary hearing.)

Will my Fairfax drug preliminary hearing date get rescheduled?

Fairfax felony drug prosecutions typically require several months for a drug chemist at the Virginia Department of Forensic Science (DFS) to test the substance. It is common for Fairfax prosecutors on the first preliminary hearing date orally to move to reschedule the preliminary hearing in order for there to be more time to test the substance. If my client is not incarcerated and if I do not expect enough defense-beneficial evidence to be developed at a preliminary hearing, I will commonly object to such a continuance, and if the reporting police officer is not present at the hearing — without good explanation — some Fairfax judges might deny such a postponement. (Note that victory at the preliminary hearing stage does not preclude the Virginia commonwealth’s attorney’s office from seeking to indict the defendant before a grand jury.) On the other hand, I timely file a request for certificate of analysis for such drug testing, and when I receive the drug test results too late to meet the minimum fifteen-day Virginia procedural deadline to seek the issuance of a records subpoena, that delayed certificate of analysis delivery to me is grounds to request a continuance of the preliminary hearing date.

What happens if I get indicted in Fairfax?

If your Fairfax felony case gets indicted, you will need to appear in court the Thursday after you have been indicted, to receive your indictment, to set your trial date, and to address your pretrial release / bond conditions if you have been direct indicted rather than if probable cause had been found at your preliminary hearing or if you waived a preliminary hearing. It is ideal for you to obtain a qualified Fairfax criminal lawyer before the date you have to first appear in court after being indicted by the grand jury. Proceedings in Circuit Court with your felony case move fast, so make sure that you and your Virginia criminal defense lawyer are ready for that pace.

Fairfax criminal lawyer Jon Katz has successfully defended hundreds of people charged with serious felony offenses. He also defends people prosecuted for alleged Virginia DUI and misdemeanor offenses. Call 703-383-1100 for your free initial in-person confidential consultation with Jon about your court-pending case.