Fairfax sexual assault conviction- Virginia criminal defense lawyer on defense challenges that were not objected to at trial

Fairfax sexual assault prosecutions and all such prosecutions anywhere in Virginia risk substantial sentences if convicted. Recently, a Fairfax County Circuit Court judge denied a defense motion to set aside a jury verdict of attempted sodomy (as to anal intercourse) and completed sodomy (as to fellatio). Commonwealth of Virginia v. Bates, Fairfax County, Virginia, Criminal Number FE-2022-485. As a Fairfax criminal lawyer, I know that Fairfax Circuit Court judges will sometimes issue letter opinions to explain their rulings, and perhaps some Circuit Court judges in Virginia seek to use such opinions in seeking to join one of the commonwealth’s two appellate courts (the latter of which would not have motivated the Bates trial judge, who is too close to the mandatory retirement age for Virginia judges) . Those letter opinions do not bind any judges — not even the judges in the lower District Court. These letter opinions can be persuasive authority on a judge’s colleagues — just as judges sometimes cite appellate caselaw from non-controlling courts when relevant opinions in the controlling jurisdiction are not available. Furthermore, such letter opinions may convince appellate judges to be less likely to overturn the trial judge’s rulings.What is particularly noteworthy is the detail and long length (69 pages) of the Bates letter opinion — actually entitled as a memorandum and opinion order. Bates addresses many issues, including the Virginia rape shield statute (concerning generally barring evidence of the alleged sexual victims’ sexual history outside of the alleged criminal incident), door opening (or not) for piercing the shield, and non-preservation of the defendant’s post-trial attacks on the prosecutor’s closing argument, based on the not a peep of an objection by the defense to such arguments. The latter issue is what today’s article focuses on.

To object or not object. That is the question in this Fairfax sexual assault conviction and generally for Virginia criminal lawyers

As a Fairfax criminal lawyer, I know that any defense objection at a Virginia jury trial can be a double-edged sword. Even if the judge instructs the jury that lawyers are entitled make appropriate objections, jurors may see repeated objections as not only obstructionist to the jury simply hearing the whole case, but also as burning into the jurors’ brains and memory the very evidence and information that the objecting lawyer wants eliminated from the jurors’ brains. For the longest time, Virginia procedural rules have generally barred post-trial and appellate relief for trial errors for which the challenging party did not make a timely objection. The reasoning behind that rule is that a timely objection gives a timely opportunity for the court and/or opposing lawyer an opportunity to repair (fully or partially) their error. Waiting days, weeks or months to complain about such errors without having timely objection, makes it much more difficult for the trial judge or complained-about lawyer to correct their allegedly prejudicial order. In the Bates Fairfax sexual assault conviction, the defense rigorously attacks the prosecutor’s (who previously was in private practice in Fairfax, Virginia including criminal defense work and who prior to that was a Fairfax public defender lawyer), but is unable to show that the defense made even one objection during the prosecutor’s closing argument.

Excusing the Virginia criminal defense lawyer’s self when s/he makes an objection

As a Fairfax criminal lawyer, I am blessed to have been admitted to (and attended) the essential and excellent (and highly competitive for the admissions approaches) two-week Trial Practice Institute of the National Criminal Defense College (often in the past called Macon), and the four-week (at the time I attended) Trial Lawyers College. One of the excellent criminal defense lawyers at Macon masterfully showed how to make the jury less likely to penalize the criminal defense lawyer for objecting, often using such phrases as: “I’m sorry. I have to object, because what the prosecutor just said is just not fair.” Let us break that down. This affable lawyer from a state that emphasizes social graces underlined to excuse yourself when objecting, because here the criminal defense lawyer is interrupting the prosecutor, and does not want to come across as rude for interrupting. Saying this is “just not fair” helps explain that the criminal defense lawyer really has no choice but to object to such unfairness. Bates‘s lawyer could have done that in front of the jury, but did not. While Bates’s trial judge explained why each challenge in Bates’s motion to set aside the verdict did not merit relief, and then added that Bates’s lawyer’s completed non-objection mode during the prosecutor’s closing argument by itself deprived the defense of post-trial relief in this Fairfax sexual assault case.

This kind of defense is not for the faint of heart

Fairfax sexual assault defense — and such defense anywhere in Virginia — is not for the faint of heart, at least where the evidence is strong that the defendant engaged in such criminal activity. Clearly, as a Fairfax criminal lawyer, my zealous defense of my clients does is not meant to condone their allegedly criminal behavior, but to give them the persuasive full-court press defense that they deserve as a human being, but also to breathe life into their Constitutional rights under the Fifth Amendment and other essential Constitutional guarantees for criminal defendants’ rights. Even despite Bates’s non-objection to any of the prosecutor’s closing argument (for which I cannot fault nor support, without having observed the trial), Bates’s lawyer nonetheless took off the kid gloves in pursuing post trial relief, at the very least in vilifying many of the prosecutor’s words during closing argument, even though the defense did not prevail in Bates.

Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Jon Katz does not hesitate to pursue any means lawfully necessary to obtain great criminal court results for you. Call 703-383-1100 for your free in-person confidential consultation about your court-pending case.