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Virginia statutory interpretation challenges – Meticulous advocacy is needed

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Virginia statutory interpretation challenges need to be at the ready by criminal defense lawyers

Virginia statutory interpretation challenges need always to be at the ready by criminal defense lawyers. As a Fairfax criminal lawyer, I know that an acquittal based on a statutory interpretation challenge is as beneficial for the accused as a challenge to the veracity of the prosecutor’s witnesses and reliability and accuracy of the prosecution exhibits. Such challenges are all a part of going to trial with an effective flowchart at the ready.

Why did a trial judge’s Virginia statutory interpretation challenge lead him to convict for a 911 harassment violation when the caller was simply taking issue with a police officer’s behavior?

Aisha Nelson got convicted at a bench trial for violating the local ordinance barring calling 911 “without intent to report an emergency, but with intent to harass” and repeatedly calling 911 for non-emergency purposes. Nelson v. Virginia Beach, (Va. App. June 1, 2021) (unpublished). Her arrest arose from her calling a 911 operator, telling the operator Nelson wanted to speak with the supervisor of a police officer who complied with a fast food outlet employee’s request that she be removed from the premises. At trial, the police officer “admitted that he had incorrectly told Nelson that he was the supervisor on duty and acknowledged that the proper protocol is to provide citizens, upon their request, with his supervisor’s information or the information for internal affairs.” A Virginia statutory interpretation clearly does not show such evidence to meet the element of “intent to harass” versus intent to obtain the name of the reporting officer’s supervisor.

Criminal defense lawyers need to focus trial judges on the statutory elements of the crime

Judges are generalists, and can go through heavy daily dockets, particularly in the busy Fairfax court. That may or may not help explain why Nelson’s trial judge found the alleged facts sufficient to convict her (maybe he did not take sufficient time to review the statute and to apply it to the facts of the case) but the Virginia Court of Appeals easily and unanimously reversed her conviction (after having the opportunity well before issuing a written opinion to fully review the applicable statute and the legal briefing arguments of the defense and prosecution). Virginia statutory interpretation arguments need to anticipate and address the trial judge’s busy-ness. Of course, Nelson’s lawyer and the trial judge may well have thoroughly considered and addressed the statute at hand, with the net result of a conviction.

Judges may not re-write statutes

Human nature for judges and jurors can make them feel tension when a criminal statute does not address behavior that they believe should be criminalized. Virginia statutory interpretation mandates judges and jurors to faithfully follow statutes, and to let legislators update the law accordingly, or not. Judges and jurors may be more likely to do that by having the outlet to verbally admonish defendants whom they acquit. Judges are able to do that, and perhaps jurors should be afforded that option. In Nelson’s case, the court admonished that her call to 911 (as opposed to a non-emergency phone line) was inappropriate:

“Clearly, Nelson’s one brief call to 9-1-1 was inappropriate and should not have been made. However, even viewing the evidence in the light most favorable to the City, as we must because it was the party that prevailed in the trial court, the circuit court erred in convicting Nelson of violating [the 911 misuse ordinance.] Even accepting that Nelson was disruptive at the McDonald’s and that she was ‘extremely uncooperative’ during the encounter with Sergeant Gregg, the evidence failed to prove that she also had the “intent to harass” the 9-1-1 operator when the call was made, as required by the plain language of the ordinance. Nelson consistently told the 9-1-1 operator that she was calling to speak with Sergeant Gregg’s supervisor, which established that she was calling ‘without intent to report an emergency’ – but did not show that she also had the required “intent to harass” during her sole call to 9-1-1 of one minute thirty-six seconds.”

Criminal defense lawyers should always proceed to trial with a good flowchart for Virginia statutory arguments and all other purposes

Winning with Virginia statutory and other arguments does not come from brute force, but from full preparation for trial and proceeding to trial with a well-prepared and well-executed flowchart, that sometimes needs to be updated as the proceedings progress.

Fairfax criminal lawyer Jonathan Katz pursues all essential winning avenues against Virginia DUI, felony and misdemeanor prosecutions. Find out the difference Jon Katz can make for your criminal defense through a free in-person confidential consultation scheduled through 703-383-1100.