Oct 22, 2020 Virginia defendants will choose sentencer says Fairfax criminal lawyer
Virginia criminal defendants get game changer with passage of legislation giving them the choice of sentencer after a jury conviction, says Fairfax criminal lawyer
Virginia has long been in the dark ages in many aspects of criminal law, including backwards prosecutor-friendly crabbed discovery rules, forced jury sentencing, and judicial control over party-agreed case dismissals concerning Virginia defendants. As a Fairfax criminal lawyer, I know that Circuit Court discovery is now better, the District Court discovery rule remains its decades-long dinosaur, the last two items (on sentencing and dismissals) have been brought into the modern age wiht the recent Virginia special legislative session, and numerous other passed legislation during the recent special legislative session have brought Virginia further into the 21st century. Today I address jury sentencing.
Forced jury trials and jury sentencing for Virginai defendants leads to too many guilty pleas, says Fairfax criminal defense lawyer
Virginia is the cradle of the confederacy, and of publicly kicking and screaming to maintain Jim Crow right into 1966, with the commonwealth’s failed Supreme Court arguments fort to keep interracial marriage a crime, in Loving v. Virginia. Granted that Virginia has come a long way since then in race relations, but racism continues to be too pervasive in America, and one needs only travel sixty miles from my Fairfax, Virginia criminal law firm to see frequent flying and displays of the stars and bars. Moreover, last decade’s anti-immigrant efforts in two Northern Virginia counties creates questions about how too many jurors will let their biases affect their deliberations with Virginia defendants when they assume that a criminal defendant might not be lawfully in the United States.
Sadly, criminal defense lawyers need to address potential juror and judge racial bias with their Virginia defendants who might fall victim to such bias. A criminal defendant should not have to feel backed against the wall into a guilty, no c0ntest / nolo contendere, nor Alford plea out of fear of jury deliberations and sentencing recommendations.
Effective July 1, 2021, Virginia defendants will be in the driver’s seat to choose jury or judge sentencing in the event of a jury conviction
Praised be those at Justice Forward Virginia and the many other people who tirelessly and successfully pushed for legislation giving Virginia defendants the sole option to choose between judge and jury sentencing in the event of a jury conviction. The legislation, SB5007, passed the state Senate on October 2, and the House on October 16, 2020, and I expect Governor Northam will sign it into law. This outcome was by no means guaranteed. Too many prosecutors for decades have been entrenched in the knowledged that a slew of Virginia criminal defendants will plead guilty rather than to risk jurors — versus a bench trial — at both the verdict / innocence-guilt phase and the sentencing phase. In that dinosaur (at best) and authoritarian (at worst) vein, 66 chief Virginia prosecutors opposed SB5007.
Should Virginia criminal defendants have the sole option to choose between a jury and non-jury trial? Of course
The next step needs to be to give Virginia defendants the sole option to choose between a jury and non-jury trial in criminal cases. Yes, a jury often is the way to go, but not always. Moreover, when a judge convicts and then sentences, s/he does not need to feel any need to sentence all the more harshly for taking up more time with a jury trial than would be taken with a bench trial. Jury trials do take longer than non-jury trials, because of the jury selection process, jury instruction process, waiting for jury deliberations, handling juror notes, avoiding jurors hearing sidebar discussions with the judge, and handling objections.
What does the Virginia judge-sentencing statute say?
The new jury sentencing statute amends Virginia Code § 19.2-295 for Virginia defendants by saying: “A. Within the limits prescribed by law, the court shall ascertain the term of confinement in the state correctional facility or in jail and the amount of fine, if any,
of when a person is convicted of a criminal offense, shall be ascertained by the jury, or by the court in cases tried without a jury unless the accused is tried by a jury and has requested that the jury ascertain punishment. Such request for a jury to ascertain punishment shall be filed as a written pleading with the court at least 30 days prior to trial.”
Is judge sentencing always preferable? No
Sometimes jury sentencing is preferable for Virginia defendants. Sometimes a Virginia criminal lawyer will not know that until knowing who the judge will be for the case, but that usually will be too late to meet the thirty-day deadline for requesing jury sentencing. In some smaller Virginia counties, usually only one judge will preside at a jury trial, and in some counties and for some Virginia criminal cases, a particular judge will be assigned the case well in advance of that thirty-day deadline. For Fairfax criminal trials and elsewhere, a jury is often the better sentencing bet for a reckless driving speed case and for a prosection of possession with intent to distribute or sale of not more than several ounces of marijuana.
Fairfax criminal lawyer Jonathan L. Katz applies his experience defending over three thousand criminal defendants to pursuing your best defense against Virginia felony, misdemeanor and DWI prosecutions. Call 703-383-1100 for a free in-person confidential consultation with criminal attorney / Virginia DUI lawyer Jon Katz.