Dec 21, 2016 Virginia Criminal Defense – Trial combat by fire with limited discovery
Star Wars has special meaning for my criminal defense practice. The only movie character on my desk is my Yoda figurine. Yoda reminds us “Do or do not – There is no try,” and that it is not size nor superficial looks that win. With Yoda, no matter how outnumbered the side of justice might at first blush seem, he is all about devotion to finding a way to win, and not being distracted by the possibility of defeat.
Now, having enjoyed the Start Wars Rogue One movie at my son’s behest, I add Chirrut Imwe to the movie characters who inspire my criminal defense battles. Chirrut’s visual blindness is not a handicap, but instead requires him truly to be in touch with his wits and combat confidence. Master Po in the 1970’s Kung Fu television series also was blind but still a great fighter and very perceptive in noticing even the presence of a nearby grasshopper, but Chirrut Imwe is the character who had to fight for the life or death of at least thousands of people.
Criminal trial combat can get messy and ugly. I draw my combat inspiration from many sources, including such great trial lawyers as Steve Rench, Gerry Spence, SunWolf, and Larry Pozner; such great physical combat fighters as taijiquan masters Cheng Man Ch’ing and Ben Lo, and even such great fictitious characters as Yoda and Chirrut Imwe; and such writings as Sun Tzu’s Art of War.
In the end, of course, the fight for my client involves me against the prosecutor in the proverbial wrestling or boxing ring, battling side-by-side along with my client. The trial rules are much more those of the law of the jungle than they might look on paper. Virginia ‘s limited discovery rules — that even deprive the defense of Jencks/opposing witness statements prior to cross examination — are a supreme insult to anyone who cares about civil liberties. Some judges in misdemeanor District Court cases — depending on the court and the judge — do not afford sufficient time for a trial. The potential sentences upon conviction can be stiff.
This is trial by fire. I thrive in combat, but want the combat rules to be more fair.
Preparation for each client’s defense started a quarter century ago, when I began my criminal defense career. No fighter is nearly as good in his or her first fight as in subsequent fights when the combat has become an integral part of that person.
The battle lines are drawn. Prosecutors and police are not the friends of the criminal defense. Judges are at best the referees. A criminal defendant needs an able lawyer at all stages of the prosecution.