Jury verdicts in Virginia are mainly impenetrable, says Fairfax criminal lawyer

Jury verdicts in Virginia can be attacked on arguments of judicial error or prosecutorial mis-steps, but rarely for juror error or juror misconduct. As a Fairfax criminal lawyer, I know that it is generally folly to seek appellate or other postconviction relief in Virginia for alleged juror mistake or wrongdoing. Barnes v. Commonwealth of Virginia, ___ Va. App. ___, 2024 WL 1723429 (April 23, 2024). Barnes’s jury convicted him of two counts of unlawfully shooting into an occupied building and two counts of unlawful destruction of property, and acquitted him of . The same jury also acquitted him of second-degree murder and use of a firearm in the commission of murder. A reading of Barnes supports that it was inconsistent for his jury at once to have acquitted him of second degree murder — which supports that the jury accepted his self defense argument — but found him guilty for his shooting into an occupied building in the process of fatally shooting his purported assailant. Nonetheless, “'[w]here a jury renders inconsistent verdicts, “a search of the trial record in an attempt to reconcile such inconsistency is neither appropriate nor required.”‘… Moreover, such a probing search would be fruitless. ‘[B]ecause Virginia is “more careful than most states to protect the inviolability and secrecy of jurors’ deliberations,” a court, in a case like this, is unlikely to discover what motivated the jury.’” Barnes (citations omitted).

How can Virginia jury verdicts result in inconsistency? Can bench trial inconsistent verdicts be attacked?

Jury verdicts  “’may appear inconsistent because the jury has elected through mistake, compromise, or lenity to acquit or to convict of a lesser offense for one charged crime that seems in conflict with the verdict for another charged offense.’” Barnes (citation omitted). The foregoing caselaw will make it hard for a Virginia criminal defendant to pierce the “inviolability and secrecy of jurors’ deliberations.” Fortunately inconsistent bench trial verdicts can be attacked — Ackers v. Commonwealth of Virginia, 31 Va.App. 521 (2000) — which I for instance succeeded arguing in knocking out a felony marijuana cultivation count (involving dozens of marijuana plants) where the trial judge acquitted my client of possession with intent to distribute the same marijuana, and where intent to distribute is an essential element of  felony marijuana cultivation. At sentencing, I successfully argued the reversal of the trial court’s finding of guilt for cultivation, and my client ended up only keeping a conviction for marijuana possession, which at the time was still a crime jailable for up to thirty days.

If my Virginia criminal lawyer is barred from arguing jury nullification, why is the jury permitted to disregard the law and still acquit me?

Jury nullification is a double-edged sword, which can be great when a jury acquits a Virginia criminal defendant when a conviction will serve little beneficial purpose other than applying the law, but has its dark side — for instance when racism was more virulent in the Southern United States and beyond — when a jury refuses to convict a criminal defendant for a violent crime out of refusal to convict a person on the basis of the violence victim’s race, which is apparently why federal prosecutors often prosecuted violent crime cases in the Jim Crow South after acquitting jury verdicts at the state court level. The Virginia Court of Appeals has described jury nullification as follows: “A jury has the ‘”‘physical power to disregard the law'”‘ but does not ‘”‘have the moral right to decide the law according to their own notions or pleasure.'”‘… Accordingly, a jury has the power of nullification but defense counsel is not entitled to urge the jury to exercise this power… A jury has this power to refuse to apply the law to the proven facts because criminal trials are decided by general verdict and the Commonwealth cannot appeal such decisions.” Kirby v. Commonwealth of Virginia, Record No. 1788–01–3, 2002 WL 31248875 (October 8, 2002) (unpublished).

Should I seek a non-jury trial in order to benefit from Virginia’s inconsistent verdict caselaw?

Anticipation of inconsistent bench trial verdicts — versus jury verdicts — does not sound like a good reason to pursue a waiver of a Virginia jury trial. Instead, it is ideal for you to obtain the best possible Virginia criminal defense lawyer to pursue your best defense against a Virginia DUI, felony or misdemeanor prosecution.

Fairfax criminal lawyer Jonathan Katz relentlessly pursues your best defense. Call 703-383-1100 (or email info@BeatTheProsecution.com or text 571-406-7268) to schedule your free in-person confidential consultation with Jon Katz about your court-pending prosecution. Jon usually can meet with you within one business day of your contacting us.