Virginia criminal advocacy needs to be prepared right before stepping into the courtroom, says Fairfax criminal lawyer

Virginia criminal advocacy must be first rate for criminal defendants. As a Fairfax criminal lawyer, I know that anything less than that risks their liberty, reputation, and livelihood, nad makes them easy pickings for prosecutors and police, which is unacceptable. It is infrequent for me to provide unsolicited advice to a colleague who is substantially falling off the mark during trial, but my crying inside over such particularly insufficient performance led me to do that recently (with a brief short note, that did not get read until the defendant was convicted) when I was watching an indecent exposure bench trial in a Virginia General District Court while waiting for my own case to be called. My purpose in writing this article is not to identify the other lawyer nor embarrass him, and I give high marks to that lawyer for how open and even-toned he was in response to my efforts, to the point that such performance may well become an abberration for this lawyer, who has been doing criminal defense work for many years. Instead, I want criminal defendants to be sure that their lawyer is on their A-game and knows how to do so. This is also a repeat invitation to my Virginia criminal defense colleagues to feel free to call on me about brainstorming your cases, at no charge. Many of my colleagues will be delighted to do the same. Below is what I wrote about this indecent exposure case before further synthesizing my thoughts:

A lesson from an example of how not to defend against a prosecution

The benefit for Virginia criminal advocacy with a bench / non-jury trial is being able to argue more than one case theory, whereas it can be risky to argue inconsistent theories to a jury. For instance, in front of a jury, the Virginia criminal defense lawyer’s credility can be tainted if s/he argues that the defendant had nothing to do with an alleged drug deal, but if the defendant was involved that it cannot be proven beyond a reasonable doubt that the substance in question was an illegal drug  / controlled substance in the first place. With this indecent exposure bench trial, the criminal defense lawyer’s theory of the case was that it was not proven beyond a reasonable doubt that the defendant was the one who had committed the alleged crime of exposing his bare butt. This being a non-jury trial, the lawyer was free to also argue (but did not) that the mere display of a bare butt does not meet the obscenity element of Virginia’s indecent exposure staute. (Nor, I would argue, do non-aroused genitals.) Yes, the prosecutor could have argued that a fully bare butt means fully exposed genitals, but the availability of jockstraps and other coverings of male genitilia do not make that a foregone conclusion.

A Virginia criminal trial needs to exclude prosecution witnesses except from when they testify

This indecent exposure defendant’s lawyer did not move to exclude prosecution witnesses (there were at least three) from the courtroom. Moving for such exclusion is an essential request to make for Virginia criminal advococy, so that people are not testifying against a Virginia criminal defendant with the aid of knowing what the other witnesses have said at trial. For every Virginia criminal trial, except for defendants and alleged crime victims, the judge “shall upon the motion of either the attorney for the Commonwealth or any defendant, require the exclusion of every witness to be called, including, but not limited to, police officers or other investigators.” Virginia Code § 19.2-265.1. 

Virginia criminal trials need motions to strike the evidence

Unless the defense presents evidence during the prosecutor’s case in chief, the defense is entitled to move to strike (called moving to acquit in many other jurisdictions) the prosecutor’s evidence after the prosecution rests. This aspect of Virginia criminal advocacy is essential where, as here, arguments were avaiable that merely exposing one’s buttocks does not meet the obscenity element of the Virginia indecent exposure statute. This lawyer did not make such a motion.

Criminal defense lawyers need to advocate for their clients at any sentencing proseeding

The judge announced his guilty verdict after closing argument concluded, and asked the defense lawyer if he had anything to present for sentencing. The defense lawyer said no. Fortunately for the defendant, the judge did not give any active jail time after presenting no argument nor evidence for sentencing. Subsequent to this trial, the lawyer told me that the defendant planned to appeal. Such a plan does not justify waiving argument at sentencing in the process of Virginia criminal advocacy. What if the judge had ordered active jail time? Even with an appeal, active jail time could have meant the defendant’s sitting in the courthouse lockup or at the jail for up to a few hours until the appeal was perfected, until any appeal bond was paid, and until the sheriff’s office received confirmation of the perfected appeal. Also, a low sentence can assist in negotiating the case on appeal, for instance for a dismissal in exchange for completing an agreed number of community service hours, or amending the charge to a less serious crime (for instance disorderly conduct). Furthermore, some defendants decide to withdraw their appeals. It is harder to make that choice if any of the sentence includes active jail time.

Using a trial flowchart to not miss essential steps for winning Virginia criminal trials

For Virginia criminal advocacy, my simple written flowchart for all trials would have avoided many of the foregoing mis-steps by this defendant’s lawyer, including: Move to exclude witnesses; place a checkmark by each element of the crime that has been addressed by prosecution witnesses or other evidence; move to strike the evidence at the conclusion of the prosecutor’s case; and sentencing issues.

Fairfax criminal lawyer Jonathan Katz with killer instincts pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. Call 703-383-1100 for your free in-person confidential consultation with Jon Katz about your court-pending case.