30 September 2004

In Kentucky - But writing About Va.

Well, I'm sitting in a law library in the Circuit Court of Fayette County Kentucky where there is apparently no trial activity at all today (never seen a courthouse so empty).

I got an e-mail from DM asking what a direct indictment is:

In Virginia there are two possible ways that you can be brought to trial.

First, you can have a warrant or summons issued against you by an officer and magistrate. Then you go to the general district court and have your trial (if a misdemeanor) or preliminary hearing (if a felony). After that you have the absolute right to appeal any misdemeanor conviction (even if you pled guilty). At a felony preliminary hearing the judge decides if there is probable cause; if there is PC the case is sent to the grand jury and on to Circuit Court for trial (grand jury indictments are an assumed).

Second, the prosecutor can take the case directly to the grand jury and get an indictment without going through any of the hassle of general district court hearings. He can also take a case to the grand jury even if the general district court judge dismissed it in the preliminary hearing. This is a direct indictment.

Most cases are handled by the first method. However, should a prosecutor wish to game the system or disagree with the general district court judge's dismissal he can use the second method.

I find this is usually used when there is some mistake during the prelim and the prosecutor doesn't have needed witnesses or botches some necessary element of the crime. Sometimes it is done because the prosecutor thinks he will get a friendlier judge in the circuit court. The worst is when it is done to hide weaknesses in a case. Virginia is a very, very limited discovery State. While not true across the board, some prosecutors are stingy with what evidence they will provide. Therefore, although Virginia's courts appellate say over and over again that the purpose of a prelim is not discovery that's not true and everyone in Virginia knows it. This is the place where the defense attorney gets his opportunity to actually question the officer or complaining witness and find out something about the prosecutor's case. There are times when it would be in the interest of a not-so-standup prosecutor to skip this step.

For example: Let's say a prosecutor knows that the stop and detention of the car (which yielded 20 lbs of cocaine) is pretty shakey. So he moves for a nolle prosequi (dismissal without prejudice) in general district court. The law of Virginia requires that constitutional issues be argued at least three days pretrial. If the Defense doesn't find out about the unconstitutional search pretrial he loses that issue. And, although I must admit not having researched this recently, most likely the trial court will not entertain, and the courts appellate will not overturn because of, a motion made during the trial to suppress (after all the Defendant was there - he should have told his lawyer this had happened - it's a nice theory anyway).

To be fair, I don't see this used often in the courts wherein I practice. However, you always hear horror stories about the jurisdiction over the horizon where there is all-out, no-holds-barred war and tactics such as this are common. I just don't practice in them.

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