In Virginia § 19.2-303 gives a judge certain abilities to suspend a felony sentence:

If a person has been sentenced for a felony to the Department of Corrections but has not actually been transferred to a receiving unit of the Department, the court which heard the case, if it appears compatible with the public interest and there are circumstances in mitigation of the offense, may, at any time before the person is transferred to the Department, suspend or otherwise modify the unserved portion of such a sentence. The court may place the person on probation for such time as the court shall determine.

I've discussed this twice before here and here.

Last week, in Wilson v. Virginia, the Virginia Court of Appeals addressed - yet again - the jurisdiction of trial courts under this statute. Apparently, after all the evidence had been given in the hearing the trial judge, at the defense attorney's prompting, ruled that she did not have jurisdiction to alter the defendant's sentence. The Court of Appeals makes short shrift of this restating "§ 19.2-303 gives trial courts jurisdiction over all felony convictions provided the defendant has not been sent to the Department of Corrections."

A win for the defense? Sort of. As the hearing had already been held before the judge rendered her ruling, the Court of Appeals had an entire record before it upon which to decide whether or not the case should be returned to the trial court for further consideration. Therefore, the Court of Appeals moves forward with a harmless error analysis.

Circumstances in Mitigation

The Court zeroed in on one part of the statute: "circumstances in mitigation of the offense" (something I'd previously said I didn't think would happen - see comments here). However, it's not the most satisfying analysis. The discussing paragraphs meander back and forth in their description of "mitigating circumstances." When the Court discusses Virginia law it has a fairly restrictive interpretation. It quotes Shiflett, defining mitigating circumstances as

[e]vidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the crime.

It then discusses § 19.2-264.4, stating

The "facts in mitigation" identified by the General Assembly share a common thread in that, while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed and may be relevant in sentencing.

This tracks with my previous assertion that mitigation of the offense actually has to be related to the offense.

However, the Court also adds in some ambiguity. Directly after it quotes Shiflett, the Court quotes Black and defines mitigating circumstances without any reference to the offense

a fact or situation that does not bear on the question of the defendant’s guilt, but that is considered by the court in imposing punishment

The Court ends the paragraph with more ambiguity as to exactly what mitigating circumstances are

Put succinctly, the term "facts in mitigation" has no bearing on the actual guilt or innocence of the accused but rather relates only to the degree to which punishment is appropriate.

Nevertheless, I don't think the ambiguity is enough to mask that the Court is stating (collaterally) that Virginia law requires the mitigation to be "of the offense", not "of the sentence." I only wish the Court had been more clear on this point.

Why wasn't it? Well, maybe because the Court wasn't worrying about my concerns over this statute. It was trying to define "mitigation of the offense" in this statute so that it does not include "absolution of guilt / nullification of conviction." I'd previously stated that I thought the purpose of this statute was to allow the judge to consider both perfect and imperfect defenses beyond the trial courts 21 day retention of jurisdiction post-trial, allowing the judge to suspend part or all of a sentence. The Court's interpretation takes perfect defenses off the table. If, 22 days after the trial, the lab realizes it mixed the DNA, or the police realize they got the wrong guy, or the defendant admits to making it all up, the defendant has no relief short of appeal, habeas, or writ of actual innocence. The defendant could spend months, maybe a year+ (or longer, depending on how quickly the courts worked), incarcerated despite knowledge of innocence 22 days after trial.¹ As you might surmise from my reaction above, I'm not a fan of the possible result of this decision. I'm particularly irked by the use of the creation of a statute in 2004 (the writ of actual innocence) to interpret the meaning of a statute passed in 1975 (19.2-303). However, I'm not going to get into a legislative intent argument. If the Court wants to proclaim that the General Assembly intends to keep innocents incarcerated until they can jump through all the hoops of a habeas or writ it can stake that position out all for itself.

I can't even get there textually. Mitigation is defined by Webster as "1: to cause to become less harsh or hostile; 2: to make less severe or painful." Mitigation isn't as specific as absolve or nullify, but it is a word which has the breadth to incorporate both. If guilt is absolved or nullified it definitely lessens the harshness and severity of the defendant's involvement in the offense.

Oh well, in a disagreement between myself and Judge Humphreys over the interpretation of a statute I suspect his actual legal decision will carry the day over my sniping from the sidelines.

Here's where I now understand the rule to be for this section of § 19.2-303: A defendant can only get relief if she presents evidence which mitigates the offense, but does not tend to prove the defendant not guilty. The evidence presented may only lessen the offender's moral culpability and may only address her prior record or the circumstances of the offense.


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¹ Yes, I know that there are probably not quite legitimate means by which a creative trial court could fudge and nullify the conviction, but what if the judge is a scrupulously honest man who won't act against the letter of the law?

You'll recall that a while back I discussed what the Virginia courts had determined to be relevant evidence a defendant can introduce during a non-capital jury sentencing hearing.

"Evidence of a good previous record, and extenuating circumstances tending to explain, but not excuse, the commission of the noncapital crime"; in doing so it rejected a "life story" and "testimony about [defendant's] employment, [defendant's] family responsibilities."

This came from the Virginia Supreme Court in Shifflett v. Commonwealth and in the last month and a half the Virginia Court of Appeals has elaborated upon this both directly and indirectly.

Harkening back to Shiflett, in Jones Jr v. Commonwealth, the Court further explores the adoption of the same standard for the introduction of evidence in non-capital jury sentencing hearings as allowed in capital hearings. It lists other evidence which has been rejected: (1) sentence of codefendant; (2) impact of incarceration on defendant mental state; (3) defendant's wife's illness and dependence upon him; (4) impact on family; (5) impact on employment; & (6) family history.¹ The Court adopts § 19.2-264.4(B) and judges the relevance of the evidence through the purposes of punishment: "deterrence, incapacitation, rehabilitation and retribution." In rejecting the appellant's argument it states the acceptable evidence which can be introduced during jury sentencing: (1) circumstances surrounding the offense; (2) history and background of the offender; (3) circumstances tending to explain the offense; (4) criminal record; (5) mental condition; (6) age of the offender; & (7) any other factor in mitigation of the offense.

Of course, the last factor is open ended. Fortunately, just last week the Court of Appeals addressed this in Wilson v. Commonwealth (a decision discussing the limits on a judges's ability to suspend a sentence under 19.2-303). Discussing § 19.2-264.4 the Court states that the "common thread" of the "facts in mitigation" is that "while they have no impact upon legal culpability, they tend to lessen an accused’s moral culpability for the crime committed."

So, a defendant cannot introduce extraneous evidence (family, job, &cetera) or evidence which impacts legal culpability.² Only factors which weigh on the morality of the defendant's role in the illegal act are allowed.³


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¹ The Court also cites Pierce v. Commonwealth as finding "testimony that defendant was a "good upstanding citizen" and a "loyal and loving son" relevant", however Pierce had nothing to do with the relevance of that evidence. It found that a defendant can present evidence during a sentencing hearing even if the prosecution has not. Even had it ruled that evidence relevant, Pierce was a Court of Appeals case decided 3 years before the Supreme Court's Shiflett and would seem to have been overruled.

² There is at least one exception to this. Accomodation lessens legal culpability for drug distribution in Virginia and it is supposed to be argued in the jury sentencing phase.

³ Defense evidence pertaining to the defendant's record is also allowed, per Shiflett. This may relate to the morality of the offender's participation in the offense or may simply be allowed as rebuttal to the prosecution's introduction of defendant's prior record.
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I was browsing through the Virginia Court of Appeals and these are the cases which caught my interest:

Brown v. Virginia, No. 1034-08-2 - A video is not subject to the best evidence rule and therefore an individual can testify as to what he saw by watching the tape and the tape need not be introduced. **In a footnote the Court of Appeals acknowledges that it is ruling contrary to federal understanding of this rule of evidence and the rule as applied in 42 States.**

Atkins v. Commonwealth, No. 1502-08-2 - An offender running away from officers and lying as to his name does not qualify as obstruction of justice under Virginia's statute.

Turner v. Commonwealth, No. 1836-07-1 - The Court of Appeals grants a Writ of Actual Innocence based upon a co-defendant taking all the blame after conviction of both. (I think this one is being redecided en banc)

Cooper v. Commonwealth, No. 1392-08-3 - If the Commonwealth gets a continuance because a necessary witness cannot currently testify in view of the fact she is awaiting trial herself it is not prejudicial to the defendant and therefore not an abuse of the trial judge's discretion.

Scott v. Commonwealth No. 1557-07-2 - Ohio found Scott guilty of violating his Virginia probation and sentenced him to serve 6 months of the suspended Virginia sentence in Ohio prison. After serving his time in Ohio, Scott was extradited to Virginia. The Virginia court found Scott guilty of violating his probation and gave him two years. Scott appeals, stating that he'd already been punished for violating his probation by Ohio. The Court of Appeals points out that Ohio didn't have any right to do such a thing and upholds the Virginia sentencing.

Jones, Jr. v. Commonwealth, No. 1802-08-1 - Updates and follows Shiflett.

Wilson v. Commonwealth, No. 1775-08-2 - Elaboration on the ability of a judge to alter a sentence under 19.2-303.

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The last two are cases I'm probably going to post more extensively about - hopefully next week. Wilson in particular interests me. I usually think that Judge Humphreys' opinions are among the best our appellate court puts out, but a quick read of this one bothers me. I'll have to digest it for a bit and post my thoughts later.

And now HOWT is gone too.

Can a defendant empower someone to be his attorney thru a power of?

Ask Blonde Justice

So, I'm puttering around the web trying to find something worth blawging about. The federal supreme court isn't going to be putting out anything interesting for a while. The most interesting case that the Virginia court of appeals decided last week can be boiled down to one phrase: No matter how poor the case against you was and the number of errors made you don't get to appeal if you don't object and make the appropriate motions to strike the evidence. Nothing earth shattering there; the court of appeals has probably said as much 100 times. One of the guys in my office wants me to write about Virginia Supreme Court Rule 7C:5(f), but I just can't see too many of ya'll being interested in the vagaries of misdemeanor discovery rules in Virginia. Besides, if I research and write that post I either have to take the side of a person in my office whom I know reads this blawg or a judge whom I know reads this blawg.

Then I trip across an entry in the VLW blog which points to a law classmate (Chuck James) of mine's involvement in defending a sheriff who is being prosecuted by the federal government. Chuck is quoted as making the dreaded "green beans with spaghetti" argument. For the record, I agree with Chuck that they don't go together, but I must admit that didn't stop my high school from serving such a travesty against the gods of taste (actually, it was usually worse: lima beans and canned spaghetti). Still, the rejoinder made by the federal prosecutor has a pretty nasty flaw: "If you’re trying to get youngsters to eat green vegetables spaghetti and green beans DO go together."

Wait. Wait a sec . . . Did he just say "If you're trying to convict on weak charges they should be mixed with the strong ones so the jury will just convict on everything"? Arrrggg. That's got to be a statement he wished he could have back. A better prosecutorial argument (if we must stick to a pasta theme) would have been: "What we have here, judge, is a spaghetti dinner. There are no green beans here. What the defense is trying to do is separate the pasta, and the sauce, and the meatballs, and the parmesan cheese. He's trying to make it unrecognizable for the dinner it is."

Of course, Tom Bondurant was in court commenting off-the-cuff on an argument he had just heard. I'm sitting comfortably in my kitchen drinking a diet pepsi as I compose my answer. Were my circumstances switched with the top-dog federal criminal prosecutor in the Western District, I'm not certain I'd have done better (and he'd probably be real confused as to why he was in my kitchen).

Anyway, for those of you who don't know him, Chuck is the first gentleman in this pack of lawyers walking into the courthouse.



It's a terrible picture; here's the news video it came from.

Anyway, it's good to see someone from my class involved in an interesting case. Since I'm now on the side of the angels, I cannot wish him good luck at trial, but I doubt he needs my luck behind him anyway. :-0

1) Skelly is gone. :`(

2) And so is Feddie.

3) Scott's still baiting lawprofs, making fun of marketers, and telling them dang worthless kids to get off his lawn and go work for a living.

4) Mark is slowly unfolding his "How to treat a jury" exposition.

5) How loud do you have to yawn to be found in contempt?

6) You're liable if you call the police during a robbery and someone is killed in the ensuing shootout?

7) I'm not sure that allowing 18 year olds to drink will discourage "binge" drinking - especially since "binge" drinking has been redefined by prohibitionists from a multi-day bender to a fairly normal 5 drinks (4 if you're female) - but here's an interesting post about whether the federal blackmail requiring the drinking age to be 21 might be unconstitutional.

8) Windy wants you to support a Feminazi scumbag.

9) Who needs permission for a DUI blood test? In Kentucky you just wait until they're asleep . . .

10) Yep, California, the land that pioneered marijuana hang-nail therapy. (You know it's bad when NPR is calling them out)

In Virginia after a defendant is found guilty of a crime there is a jury sentencing hearing and, of course, argument from both sides as to what the appropriate sentence should be. Here's my sentencing argument from my jury last Friday.

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Thank you, Judge.

Ladies and gentlemen, there are generally four reasons we put somebody in prison or jail. The first is what everybody calls retribution, basically just punishment. The second is to keep them away from people, to keep them from being able to do anything. The third is to teach the lesson to other people; they see what happened to somebody and they don't do it themselves. The fourth is rehabilitation. I'd ask you to keep all these in mind when you go in the back and try to decide all this.

Now I'm going to tell you, I don't know what this ten months in Texas was. The conviction records I'm handing up to you are all from Virginia. As the defendant himself testified, apparently if you commit a felony in Texas and you do something right, they take it off your record. I don't know how that works; I'm a lawyer in Virginia, not Texas, but apparently he spent ten months in jail in Texas. So, I don't think, to be honest with you, that rehabilitation is going to happen. You may disagree with me on that and that's you privilege. I really don't think going to jail or prison is going to rehabilitate him.

So, the questions then come down to, if you're a person who believes in straight punishment,what punishment's appropriate. And you should weigh what both Dad and Step-Mom have said. And you should also weigh the fact that he's been to jail for ten months in Texas and then came up here and did this. So ten months didn't stop him. So, you weigh his prior record and everything in and you might think how much punishment he's due.

Stopping him from doing something like this again. Well, obviously as long as he's in jail or prison he's not going to be doing this again. How long he needs to be away to accomplish that, again I leave to you.

The last thing, of course, is setting an example for others. You know, a lot of people believe in standing up here and banging on the table and saying "Send a message! Send a message!" Well, I'm not going to feed you that line, because this is a family thing. Now, whatever happened in Texas or his drug possession charges, those might have been send a message charges. This is family and as much as I think he needs a stiff sentence, his family has asked for less.

I think, and I've tried any number of juries in my career, I think personally that finding guilt or innocence is the easier part of the trial. Setting an appropriate sentence is incredibly difficult and I don't know if we ever get it 100% right. Like I said, my thoughts would be to ask you for a lot of time. 10 months didn't work; my thoughts would be to ask for more than that. His parents, his father and step mother have asked you for less than that. Balance all that in, ladies and gentlemen.

There are different ways that different people think punishment should be set. I've heard people stand up and say that for every $100 stolen a month should be given in jail - that would be 15 months in this case. I probably would have asked for, in this case, two years, but that's another issue.

I just ask you to take serious thought as to what good you are going to do the community through this sentence and please do your best with it. Thank you.

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As you might be able to tell, we don't get the over night break that the prosecutors in Law and Order always seem to get in order to put their arguments in proper order. It's pretty much extemporaneous exposition and every time I read one of my arguments I see errors, things I forgot, and things that don't make sense when you just read them. Still, at least when I was in the moment the argument seemed to be flowing well and connecting with the jury (although, for all I know, they may have thought me an idiot and ignored everything I said in their deliberations).
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There are times you look back at your behaviour and feel like kicking yourself.

Jury on Friday was credit card theft with Defendant stealing from Dad & Step-Mom. Defense Counsel wants Dad to testify during the sentencing phase of the jury trial, because he knows Dad is a reluctant witness who doesn't really want his son to go to jail. However, under Virginia case law Defense Counsel is clearly not allowed to present evidence of anything other than that which lessens his prior record or diminishes, but does not negate culpability for the current crime. Family wishes and effect on the family are clearly not allowed. See Shifflet and (last month) Jones Jr.. We argue back and forth on this with me pointing to the rule set out in the cases and Defense Counsel trying to play the precedent down by claiming the decisions just said the judge hadn't abused his discretion so the judge didn't have to follow the precedent. At one point the judge said something off the cuff about "Isn't family continuity one of the goals of Virginia law?" Anyway, after a while the argument shifted and Defense Counsel started arguing that he didn't want to call Dad because he was family, but because he was the victim. I point out that the statute only authorizes the prosecution to introduce victim evidence during the sentencing, thus excluding the defendant from doing so. In the end, the judge allows Defense Counsel to call Dad, "just to ask him what he thinks an appropriate sentence would be."

Faced with that, I introduce the defendant's prior convictions and the call Step-Mom to the stand. Defense Counsel objects and we go up to the bench to argue the point where the jury cannot hear us. Now, I've got a clear statutory allowance to "present any victim impact testimony" and she's as hooked into the checking account as her husband. I can just stand there and point at the statute and I should win the argument. Is that what I did?. Nope. When Defense Counsel objects because Dad's name is on the checking account, not Step-Mom's, I let out, "Judge, I thought we in family harmony mode, kumbyaland . . ." At which point Defense Counsel bows to my keen legal argument and withdraws his objection.

On Friday, I was cross examining the defendant in a case and asked him about his felony record:

Q: Have you been convicted of a felony in Virginia?

A: No. not in Virginia . . .

Q: Well, have you been convicted of a felony in another State?

A: I don't know how to answer that question. According to that piece of paper, I haven't. I don't know what to say.

Q: You're under oath. You're supposed to tell the truth.

A: Well, I was convicted in Texas, but that was supposed to go away.
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Q: So, you were convicted of a felony in Texas?

A: Yes, but after I spent my time in jail it was supposed to go away.

By changing constitutional law in Montejo, the federal supreme court fundamentally altered the realities of interrogations. In so doing, it left prosecutors in a precarious position. The generic ethical rule does not allow communication with a defendant once she has counsel. However, there are no longer any protections of the defendant until she announces that she will not talk without her lawyer present - irregardless of whether an attorney has been appointed/hired. Where does this leave the prosecutor? Is he disabled from doing what he can constitutionally by ethics obligations? What if an officer has heard about Montejo and asks if he can talk to a defendant who already has an attorney appointed? Are we supposed to mislead the officer as to what he's allowed to do because of the Bar's ethics rules?

The Virginia State Bar is stepping into the breach with a proposed change to the comment section of Rule 4.2: Communication With Persons Represented By Counsel

[5] In circumstances where applicable judicial precedent has approved investigative contacts in pre-indictment, noncustodial circumstances prior to attachment of the right to counsel, and they are not prohibited by any provision of the United States Constitution or the Virginia Constitution, they should be considered to be authorized by law within the meaning of the Rule. Similarly, communications in civil matters may be considered authorized by law if they have been approved by judicial precedent. This rule does not prohibit a lawyer from providing advice regarding the legality of an interrogation or the legality of other investigative conduct.

The second change to the comment is unambiguous. A prosecutor can advise officers as to the current limits of the law.

However, the first change is more problematic. It's very ambiguous. "Prior to the attachment of right to counsel" leaves open the question of when the right to counsel attaches. Per Montejo it would seem to attach at the moment the defendant asserts her right to counsel during questioning, whether or not counsel had previously been hired/appointed. However, during the initial pre-trial hearing the judge is supposed to determine what the defendant is going to do about an attorney, and appoint counsel to anyone who is indigent. A not insignificant argument can be made that this is when the right attaches (assuming the defendant has not demanded counsel during earlier questioning). Personally, I wouldn't mind the second interpretation too much. Since I can't be a witness, I really don't need to be talking to the defendant anyway. Still, the Bar should tighten that language up some.