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Scrutinizing police credibility must happen beyond Fairfax prosecutors

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Scrutinizing police credibility must not be mere lip service by the Fairfax chief prosecutor, and must be practiced by all Virginia prosecutors

Scrutinizing the credibility, reliability and recall of prosecution witnesses must be exercised fully and carefully by every prosecutor, rather than the practice I have seen too often in too many prosecutors in viewing a Virginia DUI or criminal defendant as guilty merely because they have been charged with a crime. As a Fairfax criminal lawyer, I am pleased with the chief Fairfax prosecutor’s enunciated stand about being careful about police whose credibility is questionable, so long as that stand is given full life by each prosecutor’s not treating police officer status as making them any more credible than non-police witnesses, and so long as each assistant commonwealth’s attorney fully considers the extent to which the police officer in the particular case is credible, reliable and acccurate, while never backing down against blowback from the police officer and his or her colleagues. Let’s face it that merely because a prosecutor works under a particular elected Virginia commonwealth’s attorney, does not automatically mean that the line prosecutor agrees with all of his or her boss’s policies and directives, nor that the prosecutor will follow them, whether out of disagreement, not wanting the chief prosecutor’s name on the assistant prosecutor’s resume to be a black mark when applying to work for other prosecutorial offices, or for other reasons.

How can my Fairfax criminal defense lawyer benefit from the discord between the chief county prosecutor and the new Virginia attorney general?

The Fairfax chief prosecutor, a Democrat, mixes like oil and water with the new Virginia attorney general, a Republican, to the point that the AG unsuccessfully sought legislation that apparently would have enabled police to bypass the elected county commonwealth’s attorney’s office in favor of having selected cases prosecuted by the attorney general’s statewide office. The AG attacks the Fairfax chief prosecutor, Steve Descano, for not giving crime victims their due. Descano underlines the importance of “actually get[ting] to the real drivers of crime — mental health issues, substance abuse disorder, guns easily available on our streets, and lack of good housing and jobs.” Descano also says: “One of the most significant responsibilities of commonwealth’s attorneys is to hold officers accountable when they fail the community they’re sworn to serve. Whether that’s putting an officer on the ‘Brady List’ and refusing to use them as a witness because of truthfulness issues or prosecuting officers for excessive force, it’s the duty of the commonwealth’s attorney to ensure bad policing results in consequences.” Steve Descano is going to continue digging in his heels in standing up to the AG, which can benefit Fairfax criminal defendants to the extent that Descano and his prosecutors breath life into Descano’s claim to be a progressive who also is considering the well being of defendants. I look forward to his office’s sufficiently scrutinizing all police in the prosecutions they handle.

What is a Brady list, and why is it important for Fairfax criminal defendants?

As to Fairfax prosecutors scrutinizing police, in 2016, when the previous chief prosecutor was in office, a Fairfax Circuit Court judge described the Brady list as follows: “The Commonwealth’s Attorney maintains a list of all [police] officers with sustained truthfulness violations and will disclose to the defense the name of an officer on that list if that officer will testify in a given case.” Kuhar v. LongCL-2015-5346 (Fairfax Circuit Court, April 5, 2016). This list is named after Brady v. Md., 373 U.S. 83 (1963), which governs prosecutors’ obligation to disclose exculpatory evidence to criminal defendants. Clearly, Fairfax criminal lawyers want timely, complete, and correct disclosure of all Brady evidence. (Whether or not the current Fairfax prosecutor administration politically and unfairly in 2021 added two sheriffs deputies to the Brady list is the subject of another conversation.)  Certtainly, the message is clear from the Fairfax commonwealth’s attorney’s office to his office’s prosecutors, that their obligation is to serve the public, which includes evaluating police activity, credibility, reliability and recall through a reliable lens.

All Virginia prosecutors — not only Fairfax prosecutors — must engage in sufficiently scrutinizing police activity and testimony

No matter how s0-called conservative, progressive (or a mix of the two) is a chief prosecutor, scrutinizing police officers — and not only non-law enforcement officers — is essential for all prosecutors in every corner of Virginia and the rest of the nation. When the public and criminal defendants know that prosecutors are taking such an approach, they will have greater faith in the workings of commonwealth attorney offices.

Fairfax criminal lawyer Jonathan Katz fully stands up to judges, prosecutors and police in pursuing your best defense against Virginia DUI, misdemeanor and felony prosecutions. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.