Transforming Virginia criminal court curveballs leads to recent victory for Fairfax DUI lawyer

Transforming curveballs into victory is an essential part of a successful Virginia criminal defense lawyer’s toolkit. As a Fairfax DUI lawyer, I found myself more than once reminding the prosecutor in my two then-upcoming Virginia DWI trials — set for the same court date — that the discovery-providing deadline in the discovery order had passed without my having received a shred of evidence from him.  The material arrived, but so late (only a little more than a day before trial, and first with the video in non-downloadable format to get to my client, and only provided in downloadable format during dinnertime the day before trial) that I had to rearrange my schedule to review the police report and incident video footage all in the same day and then discuss it with my clients. My clients deserve to have more than two days lead time to review such material themselves and to discuss it with me, and for us to determine how to integrate that into our defense, including whether that means our needing to investigate new areas, subpoena additional witnesses and evidence, and identify and secure the presence of expert witnesses. I never had a previous reason to expect any ill will by this particular prosecutor — nor do I see him motivated by ill will — who apologized for delaying in providing me discovery, and explained that his office is shorthanded. However, whether or not a Virginia prosecutor acts out of ill will or not, I have the same obligation to protect my client and his or her defense, and I proceeded to the trial date accordingly.

A message to prosecutors- Take a moment at least to alert Virginia criminal defense lawyers of any discovery provision delays

Court deadlines can present challenges even to the most conscientious and hardworking of Virginia criminal defense lawyers and prosecutors, including when a trial that was expected to last two days carries into many more days than that, while the work for other clients still needs to get done. At the very least, a prosecutor delayed in providing discovery can pick up his cellphone while sitting in the bathroom or elsewhere, and give the criminal defense lawyer an update that the prosecutor is delayed providing discovery, and stating the latest date that it will materialize. If a prosecutor can make time to brush his or her teeth twice a day, s/he can in less time than that tap out such a message to criminal defense counsel. Here, we had put the prosecution on notice three months before trial that we had secured a forensic toxicologist to testify at trial, but the prosecutor still did not respond to me about discovery until two days before the trial date. Now that the foregoing is out of the way, let us proceed about transforming such curveballs to success for Virginia DUI and criminal defendants.

Transforming Virginia criminal court curveballs means finding opportunities even when proseuctors do not follow court orders

I went to the Virginia DUI trial date for my two clients recognizing that the only likely relief from the judge for the late-provided discovery would have been a trial date continuance charged to the prosecution (thus making it harder for the prosecution to successfully move to change the following trial date). My preference was for the judge to have barred police trial testimony that was contained in the late-provided discovery. Instead of walking into the courthouse huffing and puffing over the prosecutor’s discovery delay, I took a page from Conscious Leadership in proceeding above the line, and opened my ears for the prosecutor to tell me about the cause for his discovery delay, and regeared my mind and words to turn what I at first viewed as a cluster*uck to the best advantage for the defense. In transforming the situation to my clients’ advantage and having prepared in-depth for both of these Virginia DUI trials, it was from that place that I persuaded the prosecutor to offer a standard wet reckless driving plea offer (standard in that county courthouse) for both my cases, one alleging a 0.13 blood alcohol concentration (BAC) (with a car accident) and the other alleging a 0.15 BAC. On top of that, I convinced the prosecutor to leave the offer open for two minutes in order for my clients to have sufficient time to review the discovery.

Throw the proverbial hand grenade back at the prosecutor

If late discovery could have come from this, a decent-seeming prosecutor with no apparent sinister agenda, what happens with Virginia prosecutors with darker and underhanded motives? That is the time for the Virginia criminal defense lawyer to be ready to throw prosecutor’s hand grenades and projectiles right back at them, as needed on the road to pursuing victory for the defense (the image of lobbing the proverbial grenade into the military tank and closing the hatch comes to mind). I do not go to Virginia court expecting prosecutors nor police to follow the rules and to be above board, even though plenty follow the foregoing path. I do not presume that the prosecutor who is above board today and kindly spoken today will behave the same tomorrow. The prosecutor has his or her agenda and schtick, and I have my complete duty to my client and to pursuing the best defense. When I expect no more from a prosecutor nor cop than from a rabid dog, I can fully focus on my clients’ agenda and on transforming even the most challenging situation to winning as much victory as possible in court.

Fairfax DUI lawyer Jonathan Katz has successfully defended hundreds of accused defendants against Virginia DWI and other criminal charges. Take your defense to the next quantum level by scheduling your free initial in-person consultation with Jon Katz about your court-pending case. Call us at 703-383-1100.