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Harmless error caselaw – Fairfax criminal lawyer says it harms defendants

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Aug 15, 2019 Harmless error caselaw – Fairfax criminal lawyer says it harms defendants

Harmless error caselaw - Fairfax criminal lawyer says it harms defendants -  Image of Error

Harmless error caselaw – Fairfax criminal lawyer says it harms defendants

Harmless error rule harms criminal defendants, says Fairfax criminal lawyer

Harmless error analysis often is used by appellate courts to deny relief to criminal defendants. As a Fairfax criminal lawyer, I know that sometimes appellate courts find the trial evidence of a criminal defendant’s guilt so overwhelming as to make it unnecessary to provide relief for otherwise serious errors committed by the trial judge.

Fairfax criminal lawyer on the inability of judges to be soothsayers

Too often when I read appellate judges affirming convictions based on harmless error analysis, I am in disbelief because judges are not soothsayers who know for certain whether the absence of error by the trial judge might have led to an acquittal rather than a conviction.

One of the most recent lessons in harmless error analysis comes from this week’s unpublished opinion affirming a first degree murder conviction in Dosky v. Commonwealth of Virginia, Record No. 1771-17-4 (Va. App. Aug. 13, 2019) (unpublished). Granted, Dosky does not come across as a sympathetic person in this case, but that is irrelevant to the law governing judging, and judges must stick to that no matter how much grief their relatives and others give them for it.

Fairfax criminal lawyer on the dangers of a wagging tongue contributing to harmless error affirmance

A Fairfax County Circuit Court jury convicted Dilshad Sabri Dosky of first degree murder for having killed Shaki Phillip by slashing him across the throat with a knife. Dosky testified that he exercised self defense, but that flew in the face of his denials to police of having had any altercation with Phillip, let alone his silence about any self defense. Dosky should simply have kept his mouth shut with the police, which may have helped avert a harmless error appellate affirmance, where silence is a wise recipe with all criminal suspects and defendants. Instead he did the opposite, including asking a police officer at the hospital where he was treated after the incident: “[W]hat would happen if they fled to Iraq?” Flight can be considered in court as consciousness of guilt. Asking about fleeing to Iraq is worse than if Dosky had taped a “KICK ME” sign to the back of his pants.

Fairfax criminal lawyer Jonathan L. Katz for each client develops and pursues an individualized action plan calculated to obtain as much victory and justice as possible. To discuss your case with Jon Katz, please schedule a confidential consultation through his staff at 703-383-1100. 

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