Advisement: Theory Behind It

In reaction to the posts last week that I made explaining why the Court of Appeals is wrong in its continuing efforts to deprive trial courts of the common law practice of taking cases under advisements I was asked a couple questions in the comments:

1) A judge takes a jury verdict under advisement, to be dismissed after a period of time. "In doing so, he thumbs his nose at both the General Assembly's decision to define an offense and a punishment and your decision (as a member of the executive branch) to prosecute the offense. Doesn't this mean that the unelected judiciary is the supreme branch of government??"

2) "[W]hy do you think it is the judiciary - which is not accountable to the electorate - that should be vested with this authority rather than the elected prosecutor?"

First of all, let's discuss the way Virginia's constitution creates its government. It is not the tripartite government which everyone seems to be assuming. To begin with, prosecutors in Virginia are not a part of the executive (gubernatorial) branch. They are "constitutional officers." Virginia's constitution sets up a General Assembly (Article IV), Governor (Article V), Judiciary (Article VI), and Constitutional Officers (Article VII Section 4). Constitutional Officers, including the Commonwealth Attorney, are answerable to the people of their county or city, not to any of the three branches coming out of Richmond.

As well, the Judiciary is not a completely free, stand alone branch. It is neither unelected nor unaccountable. However, it is elected by and accountable to the General Assembly (Article VI Section 7). In Virginia, when you stand in front of a judge you are standing in front of someone empowered with the imprimatur of the General Assembly. The General Assembly is constitutionally forbidden to intervene in individual cases (Article IV Section 14) but it places into position the trial judges who are so empowered.

The General Assembly continues to refuse to pass a simple statute banning the practice of taking cases under advisement. It places judges in trial courts with the knowledge that they have this power because the General Assembly has not stripped this power from judges through a general law. By placing a judge in a courtroom the General Assembly is stating that it trusts this judge's discretion in the use of advisement powers. Thus, when a judge chooses to take a case under advisement it is not the act of an unaccountable judge, it is the alignment of both the judiciary and the General Assembly in a decision to mitigate the local Commonwealth Attorney's decision to prosecute.

So, the answer to question number 1 is that it looks to me like the General Assembly is the supreme branch of government. It has both the ability to choose to write advisement out of existence and / or the ability to (re)elect judges who will use advisement in a manner the General Assembly finds appropriate.

As for question 2, I don't think Commonwealth Attorneys should be the final arbiter in court. At core, the duties of a Commonwealth Attorney are (1) to decide whether a case should be prosecuted, and (2) to present the case to the finder of fact / sentencer. I realize that in the modern era prosecutors perform a sentencing function in 90% of cases through plea agreements and I think this misinforms people's perceptions.

The second a defendant decides to go to trial or just plead guilty and be sentenced by the judge the case disposition function gravitates right back to where it belongs - the judge. Commonwealth Attorneys were never meant to determine the outcome of a case. In a perfect world, with infinite resources, plea agreements would be an anathema and we would never have drifted into a mindset which informs us that prosecutors should have any ability to determine a sentence or whether the circumstances are such that a sentence should be mitigated.

However, we live in the real world and in the real world I think the Commonwealth Attorney should have the power to make a plea agreement to take a case under advisement, with facts stipulated by the defense to be sufficient to convict if the defendant doesn't complete conditions X, Y & Z. Of course, for that to happen the judge has to have the power to take cases under advisement rather than being required to instantly find guilt and sentence the moment facts in the courtroom are sufficient for conviction. Again, a simple statute written into law by the General Assembly could, rather than eliminating advisement, limit advisement to cases in which the Commonwealth agrees, but the General Assembly has never passed either statute. In my opinion, up until the moment the General Assembly has passed one or the other, both the judge and the Commonwealth Attorney should be able to use advisement in the courtroom.

Look, I understand why Commonwealth Attorneys worry about and dislike judges being able to take cases under advisement. No one likes their will to be overborne by that of another - including me. Every single one of my arguments in court is insightful, concise, relevant and well thought out. No judge should ever disagree with me and every motion, objection, and sentencing recommendation I make should be treated as though it were sacred script and followed down to the last jot and tittle. Unfortunately, I don't seem to be able to convince the judges of this. More than once a judge has refused to do what I tell him should be done. When this happens I do what every good prosecutor does: I go back to the office and whine and moan and gripe to my brethren (and sistren), get it out of my system and go back to court the next day to deal with the next case.

Looking at the issue with a little more seriousness , any discretion given to any party in the courtroom is subject to abuse. A proper use of advisement would be the application of equitible circumstances in a particular case to mitigate if factors called for it. A judge will mitigate a young prosecutor who is feeling his oats and prosecuting a grandmother for sticking a can of peas in her pocket¹ or mitigate cases wherein the judge perceives that local political pressures (via merchants, officers, the local paper, etc.) are causing a technically correct, but equitably dubious prosecution to go forward. In these types of cases, the judge, as appointed by the General Assembly, represents the interest of the Commonwealth of Virginia as a whole in mitigating potential local excesses.

Abuse of advisement would come when judges use it too often so that it becomes a blanket treatment. Some judge will decide that nobody should get convicted for stopping on the way home from work and tossing back a brew (or ten) and start taking large numbers of DUI cases under advisement. Another might decide that marijuana shouldn't be illegal and start taking all those cases under advisement. In doing this the judge is invalidating the general laws instead of mitigating particular cases due to unique circumstances. However, there is already a solution built into our system for this. The judge goes back in front of the General Assembly every few years for re-election. At that point he should be called to task for his advisements. "Judge Smith, you took 750 cases under advisement in the last 3 years. 450 of those were without the agreement of the Commonwealth Attorney and 400 of those were marijuana cases. Please explain to this committee why you alone, among all the judges in the Commonwealth, don't feel that you should enforce a law written by this legislature."

If they don't like the answer the members of the General Assembly do not have to re-elect that judge. While the General Assembly hasn't shown a desire to eliminate advisements, it has shown itself quite capable of questioning judges over their reductions of convictions.


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¹ I kid you not, I've had a discussion with more than one local attorney, usually older, who tells me that she gets her hands full and sticks things in her coat pockets all the time while shopping. I think that some of our older citizens are still in a mindset from a more trusting age when people hooked on oxy's weren't trying to steal anything not nailed down.

An Important Endorsement

Thanks Ron

FYI: Advisement Posts

Before I get the venom filled emails . . .

I'm spitballing here. These arguments are embryonic, not polished and perfected. Before I made them in court or as part of a brief  I'd put considerably more work into organization, historical analysis, and other refinements.

If anyone wants to put together a serious argument against advisement - based on Virginia constitution, law and precedent - email it to me. I will be happy to publish it. The only thing I require is that it explain why the single larceny doctrine would still exist under your explanation and why common law procedures - such as having a judge presided over "sentencing hearing" which occurs everywhere in Virginia post jury sentencing (even when the presentence report is not in question) despite 19.2-298 only allowing the judge to pronounce sentence - are still valid.

Advisement: Let's Look at the Court of Appeals' Rationale: STATUTORY

To start with, the first statutory question is:

Did the Virginia Court of Appeals have jurisdiction to hear a case concerning the ability of a court to take a case under advisement?

I'm not sure. Per § 17.1-406(A) the nearest jurisdiction I can find that the Court of Appeals had was

Any aggrieved party may present a petition for appeal to the Court of Appeals from (i) any final conviction in a circuit court of a traffic infraction or a crime, except where a sentence of death has been imposed

So, the Court of Appeals has the ability to hear an appeal of a conviction. However, this case isn't about the conviction. The error alleged had to do with the trial judge's assertion that he did not have the power to take a case under advisement.


In any case, the Court of Appeals has shown that it is obsessed enough with this issue to take a rather weak case to address it with. If it can't get this issue addressed here it will continue to seek ways to force the issue forward. So, the Supreme Court should probably address the question to get it settled (even if there is a lack of jurisdiction, there's got to be some way for the Supreme Court to assume the case).


Next, we have to look at the Court of Appeals' single paragraph reasoning that the General Assembly's passage of statutes regulating the way advisement can be done in certain cases forecloses it in all cases. Here's the pertinent section:

The enactment of these statutes demonstrates the General Assembly correctly concluded no common law precedent authorized such extraordinary relief and that, if Virginia courts were to have this power, it must be granted by statute

Nothing in that statement stands up to even medium level scrutiny. You have to want to believe to agree with the rationale offered.


With a view toward reality, the General Assembly had to get the idea of taking a case under advisement from somewhere. Where did the General Assembly get that idea? From the common law judicial practice of taking cases under advisement. What did the General Assembly do with this knowledge? Did it forbid such an act by passing an extremely simple statute such as I have offered previously:

1-200.01 Limitations on Judicial Sentencing

Unless provided for by a specific statute, no judge in the Commonwealth of Virginia is allowed to reduce, mitigate, or vary in any manner the punishment which the General Assembly has determined is appropriate for a citation, misdemeanor, or felony.

It chose not to do so.

In fact, it recognized and regularized the practice in regards to certain specific criminal violations. It certainly set the proper procedure for advisement in those cases and therefore forbade other ways of taking those particular crimes under advisement. 

What the General Assembly has done is recognize a common law judicial procedure, regulate it in certain charges, and otherwise left it alone statutorily. This is a purposeful act on the part of Virginia's legislature and if you don't think so ask yourself this: Do you believe that law enforcement and prosecutors have failed to actively lobby the General Assembly to try to get advisement banished from law for years and years (and years and years)?

There is no statutory basis for the court to ban advisement. Furthermore, banning it will step on the legislature's prerogative of writing a specific law to deal with this issue.

Advisement: Let's Look at the Court of Appeals Rationale: VIRGINIA CONSTITUTION

To date, judges in the Virginia Court of Appeals have thrice struck down the common law procedure which has developed in Virginia trial courts of taking a case under advisement for a period of time to be dismissed/reduced if the defendant fulfills certain conditions. Twice, the Virginia Supreme Court struck down the Court of Appeals' decision on narrow grounds. Not to be deterred, the Court of Appeals has tried again in Taylor v. Commonwealth.

Let's look at the three rationales given by the Virginia Court of Appeals on this subject.

CONSTITUTIONAL:

First is a claim that under the Virginia Constitution, the trial courts are barred from doing this because of the separation of powers. Somewhat strangely, the court does this by quoting the Virginia Declaration of Rights, but it doesn't matter much because Virginia Constitution Article I Section 5 has basically the same language:

That the legislative, executive, and judicial departments of the Commonwealth should be separate and distinct;

I'll refer to this because it is the law extant in Virginia. As well, the court cites Virginia Constitution Article III:

The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others

These are wonderful statements of rather amorphous generalities, but not really very helpful. You would think the court's next step would be to dive into the actual specific language of the sections of the Virginia constitution dealing with the powers of the "departments of the Commonwealth." Instead, the court moves in the opposite direction, basing its opinion primarily on the federal supreme court's interpretation of the federal constitution (a not particularly relevant or helpful analysis).

Why did it do this? Well, the answer is pretty easy to figure out: the Virginia constitution does not support the court's opinion or would cause great difficulties if applied strictly.

The first place the court should have gone is Article IV Section 11:

No law shall be enacted except by bill.

The enacted language seems to have come into Virginia jurisprudence with the 1901 constitution. Earlier constitutions referred to "All laws." In the Virginia constitution of 1776, Section 8 states:

All laws shall originate in the House of Delegates . . .

In the 1830 version, Article III Section 10 states:

All laws shall originate in the house of delegates . . .

However, the 1869 constitution does not state whence laws shall originate; it simply talks about where bills can originate.

So, a plain, historical reading of the Virginia constitution would be that nothing that originated outside of the House of Delegates prior to 1869 has the force of law. These constitutions trump the statute the General Assembly passed adopting British common law; none of the British common law originated in the Virginia House of Delegates. Of course, any common law developed completely between 1869 and 1901 would be valid, but anything thereafter that was created by the courts would not be "enacted by bill" and would be right out the window.

That, of course, while entirely logical, is a nightmare. No sane court is going to go down that path into a chaos wherein there would be valid challenges to the very concepts of larceny, robbery, burglary, etc. because the General Assembly has never passed a law defining them. It left the British common law in place and allowed the courts to develop their own common law on top of it.

In any event, the one place where all this is trumped is under the current constitution's Article VI Section 5:

The Supreme Court shall have the authority to make rules governing the course of appeals and the practice and procedures to be used in the courts of the Commonwealth, but such rules shall not be in conflict with the general law as the same shall, from time to time, be established by the General Assembly.

To be clear here, taking a charge under advisement is not substantive. It has nothing to do with the elements of the crime. It has to do with sentencing and mitigation. These are procedural matters. The Supreme Court has to make rules dealing with procedure unless the General Assembly has passed a law dealing with it.

So, the General Assembly could solve this all if it chose to pass the following statute:

1-200.01 Limitations on Judicial Sentencing

Except as provided for by a specific statute, no judge in the Commonwealth of Virginia is allowed to reduce, mitigate, or vary in any manner the punishment which the General Assembly has determined is appropriate for a citation, misdemeanor, or felony.

The problem is that the General Assembly has never chosen to do this. It has tacitly admitted the judicial practice of taking cases under advisement by limiting the practice specifically in certain cases such as misdemeanor property crimes, domestic A&B, and drug crimes. So, it's a judicially controlled procedural practice (part of the sentencing  or post sentencing process) which has been recognized, but not forbidden, by the General Assembly.

Thus, the Court of Appeals' decision banishing advisement is rewriting the law contrary to the expressed will of the General Assembly and it is the Court of the Appeals assuming the constitutional rule making powers of the Virginia Supreme Court. Neither of those strike me as particularly constitutionally valid.

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Tomorrow: Statutes

So that's where it came from . . .

From Virginia's Constitution of 1830:

Indictments shall conclude, Against the peace and dignity of the commonwealth.

I've seen that language in all sorts of indictments and always wondered where it came from.

And, just so nobody out there who is writing or approving indictments freaks out, it's not in the current constitution.

Does the Constitution require an "Open File" Policy?

An "open file" policy is when a prosecutor allows the defense access to everything in his file. Personally, I favor this as long as there is nothing in the file which will endanger someone. Examples of things which I do not think should be given out are the names of confidential informants¹, officers' personal phone numbers or addresses, social security numbers, &cetera. Basically, all a defense attorney has to do to get a copy of everything in my case files is send a discovery motion and the whole thing gets emailed to him.

However, Virginia's discovery rules do not require anything nearly so accommodating. Rule 3A:11(b) is as follows:

(b) Discovery by the Accused.

(1) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph any relevant (i) written or recorded statements or confessions made by the accused, or copies thereof, or the substance of any oral statements or confessions made by the accused to any law enforcement officer, the existence of which is known to the attorney for the Commonwealth, and (ii) written reports of autopsies, ballistic tests, fingerprint analyses, handwriting analyses, blood, urine and breath tests, other scientific reports, and written reports of a physical or mental examination of the accused or the alleged victim made in connection with the particular case, or copies thereof, that are known by the Commonwealth's attorney to be within the possession, custody or control of the Commonwealth.

(2) Upon written motion of an accused a court shall order the Commonwealth's attorney to permit the accused to inspect and copy or photograph designated books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, that are within the possession, custody, or control of the Commonwealth, upon a showing that the items sought may be material to the preparation of his defense and that the request is reasonable. This subparagraph does not authorize the discovery or inspection of statements made by Commonwealth witnesses or prospective Commonwealth witnesses to agents of the Commonwealth or of reports, memoranda or other internal Commonwealth documents made by agents in connection with the investigation or prosecution of the case, except as provided in clause (ii) of subparagraph (b)(1) of this Rule.

As is obvious above, there are lots of things which defendants are not entitled to under the rule. No police reports, no witness statements, no witness lists, &cetera. There are a number of prosecutors who don't give a bit of evidence over which is not required by 3A:11.

Of course, Brady still applies and without an open file the prosecutor places himself squarely in the crosshairs when time comes to explain every possible piece of evidence which could have possibly been used in some exculpatory or impeachment manner. Recently federal district court judge Raymond Jackson took a slap at Virginia prosecutors who do not have open file policies and specifically went after two of whom he disapproved.

In describing why the Commonwealth's Attorney's Office does not have an open-file policy, Mr. Smith stated the following at the habeas evidentiary hearing: "I have found in the past when you have information that is given to certain counsel and certain defendants, they are able to fabricate a defense around what is provided." Tr. 110. In effect, Smith admits here that his contempt of defendants who "fabricate a defense" guides his perspective on disclosing information. This is particularly troubling in the case at bar where the record is replete with statements from Smith and Jones regarding the scrutiny and credibility determinations that they made (as opposed to the jury) regarding the relevance of any potential exculpatory evidence. Essentially, in an effort to ensure that no defense would be "fabricated," Smith and Jones' actions served to deprive Greene of any substantive defense in a case where his life would rest on the jury's verdict. The Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process. See, e.g., Kyles v. Whitley, 514 U.S. 419, 439-40 (1995) ("Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial's outcome as to destroy confidence in its result. This means, naturally, that a prosecutor anxious about tacking too close to the wind will disclose a favorable piece of evidence ... [a]nd it will tend to preserve the criminal trial, as distinct from the prosecutor's private deliberations, as the chosen forum for ascertaining the truth about criminal accusations.").

The interesting language therein is "[t]he Court finds these actions not only unconstitutional in regards to due process, but abhorrent to the judicial process." The question becomes, does this refer to the policy of not having open files or does it refer to the court's finding that the prosecutors in this case failed to ferret out every last possible Brady issue in their file and turn it over?

I don't think it means that only open file policies are constitutional. Alternatively, if the judge did mean it that way, I think he overstepped. The Virginia discovery system is constitutional, it just requires more vigilance on the part of the prosecutor for Brady issues. In that vein, I think this is most likely just a statement the judge is making after having worked himself up into a fervor over his perception of errors and purposeful wrongdoing by the prosecutors.

In the long run, I don't see this as having any real affect on Virginia's discovery rules. To begin with, it carries no precedential weight. As well, like most habeas findings, it is likely to be overturned on appeal (not speaking of merits here, just statistical likelihood).

via VLW

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¹ Yes, I realize this may have to be done eventually, but initially it should not be made available.

The Encryption Key: Is it is or is it ain't covered by the 5th?

The DOJ is trying to force a citizen to give up her encryption key (that's a password to those of us who speak plain English) because they can't break the encryption on her computer. I haven't researched this issue, but it is an interesting question because a password could easily be characterized as the equivalent of a key to a physical lock box or as speech required by the government as an admission that the suspect knows what is on the computer and has control over it.

Cnet is all over this story and even has an interview with the defendant's attorney.

An Interesting Take on Dealing with Drugs

The gentlemen in this video discuss an interesting way of handling the drug problem.

Hearsay in Probation Violation Hearings

For a long time, hearsay has just been a part of probation hearings. The rationale for this is that a probation hearing is a post-conviction hearing so that the full panoply of constitutional protections are not available for the violator. However, there have always been some protections available for those accused of probation violations and the line has always been a little fuzzy. Last week, the Virginia Court of Appeals addressed whether hearsay can be allowed in a probation hearing in the post-Crawford world.

In Henderson v. Commonwealth, JUN11, VaApp No. 0688-10-4, the Commonwealth introduced witness statements of victims of crimes which had never been prosecuted through the officer who investigated the crimes. The defendant objected. The trial court allowed the testimony. Then came the appeal.

The Virginia Court of Appeals references USSC precedent and states that there is a 14th Amendment due process right for a defendant in a probation violation case to cross examine witnesses against him unless there is a finding of “good cause” for not allowing the confrontation.

The Court then states that the first test which must be passed is whether a statement the prosecution wishes to introduce is actually testimonial. The test adopted here is the same one adopted in the 6th Amendment confrontation cases: the primary purpose test. In other words, if the statement which is sought to be introduced was primarily taken to help capture and prosecute the defendant it is subject to constitutional confrontation requirements. If the primary purpose of the questioning had another purpose (i.e. dealing with an emergency) there is no constitutional entanglement and State rules of evidence are controlling. In other words, if the statement is non-testimonial hearsay it can be introduced, just as it always was, but testimonial hearsay must face the “good cause” test.

The Court tells us that there are two tests to determine whether good cause exists for not requiring the actual speaker of a statement to testify.

Test 1: Balancing Test - The trial court employs a balancing test that weighs the probationer’s interest in confronting a witness against the interests of the State in not producing the witness.

Test 2: Reliability Test - The trial court determines whether the evidence reaches a certain level of reliability, or if it has a substantial guarantee of trustworthiness.

The Court goes on to state that the reliability test has been implicitly approved in Virginia and the balancing test was found not to apply in the same case (a case involving non-testimonial governmental documents). However, the Court does not explicitly endorse either test. Instead, it runs through both and finds that the statements in this case should not have been allowed under either test. The Court seems to prefer the reliability test, but to be covering its bases in case a superior court should take this question up and decide to use the balancing test.

The Reliability Test: The reliability test is addressed first and the court goes out of its way to point out that good cause is implicit in the reliability test. It does absolutely nothing to explain this statement and it comes across as a gloss. On its face, this makes the reliability test appear to be the less valid of the two tests. However, this might be fixable if in the test above “certain level of reliability” is defined as being equal to, or greater than, that level of reliability which would make the presence of the actual person who made the statement initially entirely irrelevant.

Then the Court goes on to give several examples of statements which have been recognized as being reliable in federal appellate courts:

the conventional substitutes for live testimony (e.g., affidavits, depositions, and documentary evidence),

statements falling under an established exception to the hearsay rule

statements corroborated by detailed police investigative reports

statements corroborated by the releasee’s own statements

statements given under oath,

statements supported by corroborating evidence

Also included are some which have been found to be not reliable:

out-of-court statements reflecting an adversarial relationship with the accused

statements containing multiple layers of hearsay

The Court then goes on to find that the unsworn allegations of crime victims are not reliable and therefore an officer cannot restate them as hearsay during a probation violation hearing. Nevertheless, be aware that there is a lot of language in this case which seems to indicate that if there was other corroborating evidence the reliability of the victims' statements could be bolstered to the point that they are reliable and could be introduced.

The Balancing Test: The balancing test has two sides to it. The Court adopts two factors on the defendant's side of the scale:

the importance of the hearsay evidence to the court’s ultimate finding

the reliability of the facts to be proven by the hearsay evidence

On the other side, the Court adopts two factors to weigh the prosecutor's interest in allowing the hearsay in:

the explanation the government offers of why confrontation is undesirable or impracticable

the reliability of the evidence which the government offers in place of live testimony

You'll notice that reliability is on both sides of the scale. In fact, this seems to be a reliability-plus test. Basically, once reliability is established the weight the evidence will carry against the defendant must be weighed against the government's reason for not having the person who made the statement available.

In this case, the Court found that the hearsay evidence weighed very heavily toward the finding that the defendant had violated his probation. It then found that there was no evidence that the government had tried to subpoena the witnesses nor evidence that the witnesses could not be brought to the trial court. Consequently, the hearsay was inadmissible.

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Conclusion: At least for the near future, the standard in Virginia seem to be that testimonial hearsay can only be introduced if it passes the reliability test. Interestingly, the Court recognizes, in a footnote, that this may not pass a straight Crawford test, but it points out that this is confrontation under the 14th Amendment, not confrontation under the 6th Amendment. Therefore, a strict compliance with Crawford does not apply.